So Wing Keung v. Sing Tao Ltd and Another

HCMP 1833/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.1833 OF 2004

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Coram: Hon Hartmann J in Court

Dates of Hearing: 2 and 4 August 2004

Date of Handing Down Judgment: 10 August 2004

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J U D G M E N T

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Introduction

1.On 23 July 2004, in furtherance of wide-ranging criminal investigations, an ex parte application was made to this court by counsel for the Independent Commission Against Corruption ('the ICAC') seeking the issue of 14 search warrants pursuant to s.85 of the Interpretation and General Clauses Ordinance, Cap.1 ('the Ordinance'). S.85 is contained within Part XII of the Ordinance, that part bearing the heading : 'Search and Seizure of Journalistic Material'.

2.The ICAC sought the issue of the search warrants to enable their officers to enter the premises of seven newspapers and the offices or homes of a number of journalists in order to search for and seize 'journalistic material'. 'Journalistic material' is defined in s.82(1) of the Ordinance as 'any material acquired or created for the purposes of journalism'. It was hoped that the material obtained would include evidence of who had supplied certain information to the newspapers to enable them to publish news stories which the ICAC suspected may have constituted and/or been related to criminal offences.

3.The application for the issue of the 14 search warrants came before Stone J. Well aware of the importance of interposing himself between the legitimate desires of the ICAC to pursue its investigation and society's equally legitimate requirement to ensure the freedom of the press, Stone J conducted a robust and lengthy hearing. At the conclusion of that hearing, he determined that the requirements of s.85 of the Ordinance had been met, obliging him to issue the warrants.

4.Stone J, however, was not satisfied that, unless the ICAC was given immediate access to any material seized, its investigations would be at risk of being seriously prejudiced. He therefore ordered that all material seized under the warrants be sealed, allowing the owners of the material a period of three days within which to apply under s.87 of the Ordinance for its return.

5.The first respondent in this matter is one of the seven newspapers whose premises were searched. The second respondent is a journalist employed by that newspaper whose home was searched. During the course of these searches material was seized and sealed. It is accepted that the material is journalistic material. I shall refer to the respondents jointly by the name of the newspaper : Sing Tao.

6.Two remedies are sought by Sing Tao. The primary remedy sought is that, in terms of O.32, r.6 of the Rules of the High Court, the two search warrants, being ex parte orders, should be set aside on the basis that in law they should never have been issued. The secondary remedy sought, should the principal remedy not be available, is that, pursuant to s.87(2) of the Ordinance, the material seized, not being required in the public interest for the ICAC's investigations, should immediately be returned.

7.It is said that in law context is everything. Certainly, in my view, this applies in the present case. A brief history is therefore required.

Background

8.On 9 July 2004, a number of persons were arrested by the ICAC for alleged offences of corruption. One of the arrested persons - I shall call her 'the participant' - agreed to assist the ICAC in their investigations. Perceiving a risk to her safety, the ICAC took steps to place her in a witness protection programme.

9.Witness protection programmes are established by statute; namely, the Witness Protection Ordinance, Cap.564. S.3 of that Ordinance defines the purpose of the programmes, saying that they are intended to provide 'protection and other assistance for witnesses whose personal safety or well-being may be at risk as a result of being witnesses'.

10.The Ordinance encompasses the possibility that a witness in a witness protection programme may have to be given a new home, a new occupation, even a new identity. It is paramount therefore that the identity of a person in such a programme is not allowed to pass into the public domain. S.17 of the Ordinance provides penalties for those who bring this about. Of relevance to the present case, s.17(1) reads :

" A person shall not, without lawful authority or reasonable excuse, disclose information -

(a) about the identity or location of a person who is or has been a participant or who has been considered for inclusion in the witness protection programme; or

(b) that compromises the security of such a person."

A person who contravenes s.17(1) is liable on conviction on indictment to imprisonment for ten years. Clearly, the legislature viewed the offence as one of gravity.

11.I understand that the participant was placed into a witness protection programme on 13 July 2004. On the evening of that same day, acting on the instructions of persons who said they had spoken to the participant and believed her to be held against her will, lawyers sought access to the participant. The ICAC did not grant that access. This resulted in a complaint being lodged with the police concerning the conduct of the ICAC.

12.Late the following day; that is, on 14 July 2004, an application for a writ of habeas corpus was filed with this court seeking the release of the participant from what was alleged to be her unlawful detention by the ICAC. Those proceedings were heard on 15 and 16 July 2004. Virtually all of the proceedings were held either in chambers or in court but in camera. Late on the afternoon of the second day, after the matter had come before me, I dismissed the application, being satisfied that the participant was not in any form of custody nor was she being in any way held against her will.

13.The events spanning the evening of 13 July 2004 through to the dismissal of the habeas corpus application were reported by those newspapers that were made subject to the search warrants issued by Stone J. I understand, however, that the reports did not deal only in general terms with the events but condescended to details including details of the participant's identity. I understand also that a number of the reports contained details of documents used and words spoken in the habeas corpus proceedings during the time they had been conducted either in chambers or in camera.

14.The Court of Appeal, to which recourse had been made during the course of the habeas corpus proceedings, was sufficiently disturbed by the public dissemination of these matters to request the Secretary for Justice to consider what, if any, action should be taken.

15.The ICAC investigations which arose out of this history were focused on the possible commission of two arrestable offences.

16.First, the ICAC was concerned that certain persons may have contravened s.17(1) of the Witness Protection Ordinance by revealing the identity of the participant. The clearest evidence of this lay in the published stories themselves. But the ICAC considered it necessary to ascertain not only which journalists had played a role in the publication of the news stories and their degree of involvement but who had disclosed forbidden information to those journalists.

17.Second, the ICAC was concerned that certain persons may have pursued the habeas corpus application not for the bona fide purpose of seeking the release of the participant from what they believed to be her unlawful detention but instead for the sinister purpose of intimidating the participant and thereby dissuading her from acting as a prosecution witness. If that was shown to have happened, it would constitute a conspiracy to pervert the course of public justice, one aspect of that conspiracy being the leaking of information concerning the identity of the participant to the press.

18.I pause at this juncture to record that the writ of habeas corpus was described more than two centuries ago as 'that noble badge of liberty which every subject ... wears'. Many say that it is one of the greatest creations of the common law, a shield from unlawful executive detention that is strapped to the arm of every subject from the most humble to the most grand. In my judgment, it cannot be disputed that it must overwhelmingly be in the public interest to prevent its perversion for criminal ends. Certainly, it was an issue which caused Stone J the deepest concern.

19.Having said that, it is to be emphasised that, when the application for the issue of the search warrants was made, counsel for the ICAC assured Stone J that no suggestion was being made that the newspapers themselves had in any way knowingly been complicit in a conspiracy to pervert the course of justice of the kind I have described. The verbatim transcript of the hearing makes that plain. It was conceded by counsel that, if there had been such a conspiracy, the press itself had been unwittingly used.

20.As for the hearing before Stone J, O.118 of the Rules of the High Court, which governs the manner of proceedings concerning the search and seizure of journalistic material, directs that all applications under s.85 of the Ordinance shall be made ex parte by originating summons and shall be heard in chambers not open court. The hearing was held in compliance with those directions.

21.All applications for the issue of search warrants under s.85 must be supported by affidavit or affirmation setting out all of the grounds required by Part XII of the Ordinance to be demonstrated including the evidence relied on in support of those grounds. I am able to say that the supporting affirmation of Mr So, the applicant in these proceedings, ran to 13 pages. It was certainly no standard format document with appropriate boxes ticked. It was painstaking in its detail.

22.Mr So's affirmation was at all times, and remains, protected by public interest immunity, being protected not by reason of its particular contents in the present case but rather as a class of document. In this regard, I refer to the dictum of Keith JA in Apple Daily Ltd v. Commissioner of the Independent Commission Against Corruption (No.2) [2001] 1 HKLRD 647, at 663B :

" I appreciate that there is a difference between a claim to public interest immunity in respect of documents falling within a particular class, i.e. the affidavits or affirmations used to support applications for search warrants, and a claim to public interest immunity in respect of information of a sensitive nature which might be included in such documents. But in my opinion affidavits or affirmations used to support applications for search warrants constitute one of the classes of documents to which public interest immunity attaches, so long as the investigation in aid of which the warrants were sought continues. It may be that once that investigation has come to an end, public interest immunity no longer attaches to the documents as a class, and public interest immunity only attaches to such parts of the document as identifies informants, but that is not something which I need to address. For the time being, while the investigation continues, the affirmation of Ricky Yu falls within one of the classes of documents to which public interest immunity attaches and cannot be inspected by Apple Daily or its advisers." [my emphasis]

23.Although in the hearing before myself Mr Dykes SC, leading counsel for Sing Tao, argued that, in light of more recent common law authorities, Keith JA's dictum must be held to be wrong in law, he effectively conceded that I am bound by it and that accordingly no part of Mr So's affirmation could be revealed, no matter how unrelated to the need for public interest immunity that particular part may be. I am satisfied that I am bound by Keith JA's dictum and that I am therefore bound to hold that the affirmation, as a class of document, is protected by public interest immunity.

24.It would, of course, defeat the purpose of clothing Mr So's affirmation with public interest immunity if the transcript of the proceedings before Stone J, during which the affirmation was considered in detail, was to be revealed. That hearing was in any event in chambers. I am satisfied, however, that, when the interests of justice demand, I am permitted to reveal limited portions of what was said during the hearing provided such references do not in any way undermine the essential confidentiality of the chambers hearing or undermine the public interest immunity vested in Mr So's affirmation and provided, of course, that they go directly to the issues in contention before me.

25.With this caveat in mind, I observe that, on my reading of the transcript, it is apparent that, over a long and arduous hearing, Stone J had to be drawn reluctantly to his final determination that the search warrants should be issued. Early in the hearing he is recorded as saying by way of comment on the application : 'Don't like it, don't like it'. He then enquiries whether there may not be some way of hearing from the newspapers before a decision is made whether to issue the warrants.

26.There is, of course, a procedure laid down in the Ordinance which permits a newspaper or a journalist to be heard before any decision is made as to the delivery up of journalistic material. That procedure is laid down in s.84 of the Ordinance. I shall refer to it in greater detail when I look to the overall statutory scheme contained in Part XII of the Ordinance governing the seizure of journalistic material. During the course of the hearing, Stone J quite properly had his attention drawn to the procedure laid down under s.84, a procedure for seeking by way of an inter partes hearing what is called a production order, requiring the delivery up of journalistic material.

27.The ICAC, however, took the view that, with the newspapers and the journalists themselves being suspected of the commission of serious criminal offences, it was not prudent to give notice that journalistic material was being sought from them. Accordingly, circumstances dictated that, rather than giving notice under s.84 of the Ordinance of an intention to seek production of material, it was necessary to proceed directly to the issue warrants under s.85. This was because the ICAC perceived a risk that, if notice was given, relevant material may be hidden or destroyed by the newspapers or by the individual journalists. In this regard, Stone J enquired of counsel how it was to be concluded that all the newspapers and the journalists would do away with the material. In reply, counsel said : "It's not a question of knowing that they will, it's a question of not being able to take the risk that they won't ... that's the same in any search warrant situation." Counsel went on to emphasise : "We're talking about a very serious criminal investigation ..."

28.As I have said earlier, Stone J determined at the end of the ex parte hearing that all the warrants should be issued. He was not prepared, however, to give the ICAC immediate access to any material seized pursuant to s.85(7) of the Ordinance and required instead that the material be sealed in terms of s.85(6) which reads :

" 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 authorized or required under section 87." [my emphasis]

The relevant portions of s.87 are to the following effect :

" (1) A person from whom journalistic material has been seized pursuant to a warrant issued under section 85, other than a warrant to which subsection (7) of that section applies, or a person claiming to be the owner of such material, may within 3 days of such seizure apply to the court from which the warrant was issued for an order under subsection (2).

(2) On an application under subsection (1), unless the judge is satisfied that it would be in the public interest that the material be made use of for the purposes of the investigation, he shall order that the material be immediately returned to the person from whom it was seized; and in making a determination under this subsection the judge shall have regard to, among other things, the circumstances under which the material was being held at the time of its seizure."

29.Sing Tao's 'secondary remedy', as I have described it, is for an order under s.87(2) for the immediate return of the seized material.

The issue of jurisdiction

30.As I have indicated earlier, the primary remedy sought by Sing Tao is one which Mr Dykes submitted accrues to it pursuant to O.32, r.6 of the Rules of the High Court. That order reads :

"The court may set aside an order made ex parte."

31.Where an order is made by a judge ex parte, the same judge or another judge of concurrent jurisdiction has the power to set aside the order after an inter partes hearing. That is an established principle of jurisdiction. It arises, I believe, out of the nature of ex parte orders which are made by a judge on the basis of evidence and submissions made by one side only and are therefore no basis for making a definitive order.

32.Mr Zervos SC, leading counsel for the ICAC, questioned whether the issue of search warrants by a judge pursuant to s.85(2) of the Ordinance, even though manifestly done ex parte, could constitute an 'order'. I am satisfied, however, that the issue of each warrant by the judge constituted an 'order' in terms of the Rules in that in each case it constituted a direction given by the court. The issue of each warrant was an 'order' in the sense that it was made with authority to command and did command the carrying out of specific acts; namely, search and seizure. The word 'order' in terms of the Rules is used in a broad range of senses and, in my view, must encompass almost all decisions which are not properly to be categorised as judgments.

33.It was contended by Mr Zervos that the issuing of the search warrants was a criminal procedure, inherent to the criminal investigative process. As such, the issue of the search warrants did not create a dispute between opposing parties, a lis inter partes, as is the case in civil proceedings. Once the search warrants were issued and executed the process was complete. In light of this, an application under O.32, r.6 to set aside the already 'expended' warrants was therefore inappropriate.

34.Mr Zervos complemented or underscored this submission by saying that the Rules of the High Court, concern practice and procedure only and cannot expand the jurisdiction of the High Court nor confer on parties rights that they do not have under common law or a relevant statutory provision.

35.Going first to that latter point, I reject the submission that the relevant rules, to which I shall come in a moment, are ultra vires. The power to issue search warrants to seize journalistic material is given to the High Court by s.85(1) of the Ordinance which reads :

" 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 District Court for the issue of a warrant under subsection (3) authorizing him to enter those premises for the purpose of searching for or seizing material which is known or suspected to be journalistic material."

36.The High Court, in the exercise of this statutory power, has the jurisdiction to direct the manner in which proceedings which take place before it concerning the exercise of the power are to be conducted. The High Court is master of its own process and the relevant Rules are no more than examples of the High Court setting its own process.

37.The Rules of the High Court relate in greatest part to civil proceedings but not exclusively so. In this regard, O.1, r.3 reads :

" These rules shall not have effect in relation to any criminal proceedings other than any criminal proceedings to which Order 53, Order 59, Order 62, Order 70, Order 115, Order 116, Order 117, Order 118 or Order 119 applies." [my emphasis]

38.O.118 governs the criminal proceedings brought under Part XII of the Ordinance, specifically proceedings brought either under s.84 for the issue of a production order or under s.85 for the issue of a search warrant. Just as the High Court may direct the manner in which civil proceedings before it are conducted so it may direct, as it has done in terms of O.118, the conduct of criminal proceedings before it.

39.It seems to me that the more fundamental issue going, to jurisdiction is Mr Zervos' contention that the issue of a search warrant under s.85 is not a lis inter partes and that accordingly proceedings under O.32, r.6 cannot apply to it. This contention has previously been ventilated by Mr Zervos before the courts. In its judgment in Apple Daily Ltd v. Commissioner of the Independent Commission Against Corruption, cited in para.22 supra, Keith JA, at 657G, made the following observations in respect of his submissions :

" Mr Kevin Zervos, for the Commissioner, contended that O.32 r.6 did not give the court power to set aside the warrants. Accordingly, the appeal had to be dismissed without a consideration of the merits ...

When properly analysed, Mr Zervos' argument has, I think, two limbs. First, it is said that an application for a search warrant is not a lis inter partes. It is a unique procedure in which there is only one party, namely the party applying for the warrant. Thus, the proceedings in which the application is made are such that they come to an end when the ex parte application for the warrant is granted. Mr Zervos argued that O.32 r.6 does not apply to such an order because : (a) O.32 r.6 contemplates another party to the proceedings (and in something other than a lis inter partes by definition no other party exists); and (b) the proceedings are over by the time when O.32 r.6 can be invoked. Secondly, it is said that O.32 r.6 only applies to orders made in civil proceedings. Mr Zervos argued that orders for the issue of search warrants in connection with the investigation of criminal offences are not civil proceedings.

I am skeptical about the correctness of these arguments. As for the first argument, I agree with the premise on which the argument is based, namely that an application for a search warrant is not a lis inter partes. An application for letters of request, which was held by Godfrey J (as he then was) in A-G v. 'L' [1990] 1 HKLR 195 not to be a lis inter partes, in an analogous example. But it does not necessarily follow from that that O.32 r.6 cannot be relied upon to found an application to set the warrant aside."

40.In the result, as the appeal by Apple Daily was decided on its merits, Keith JA was not required to determine the issue. However, in passing, he said that he would be very reluctant to accede to Mr Zervos' submissions if their effect was -

" ... to deny the occupier of premises to which the search warrants related an opportunity to apply to the court for their revocation or variation. It would be very surprising if the court could not revoke or vary search warrants when it could be shown, for example, that they had been obtained on obviously inaccurate facts or on facts which were seriously incomplete because of a lack of candour at the time when the applications for them were made."

41.In a more recent Court of First Instance judgment given in October 2003, that of X v. The Commissioner of the Independent Commission Against Corruption (unreported) HCCM 49 of 2003, Lugar-Mawson J came to the conclusion that O.32, r.6 did give him jurisdiction to set aside orders related to the ICAC's powers of investigation under the Prevention of Bribery Ordinance, Cap.201, all proceedings concerning the making of such orders being governed by O.119 of the Rules of the High Court. In reaching his determination, the judge said :

" Regardless of whether or not the application under s.14(1A) leading to the Order was in respect of civil or criminal proceedings the clear words of O.1 r.2(3) referring to O.119, make it clear that O.32 r.6 applies to it and unless jurisdiction can be denied under any other rule of law, this Court can set the Order aside. It is unnecessary for me to determine the nature of the proceedings."

He continued by making reference to Keith JA's observations in Apple Daily Ltd (to which have referred) and said :

" ... O.32 r.6 is in clear term. It provides that an order made ex parte can be set aside, but it says nothing about who may, or may not, bring the application to set it aside. Obviously the applicant for the order has the right to ask the Court to set it aside, but what of the subject of the order? As it was made ex parte it must necessarily follow that its subject was unaware both of the bringing of the application for the order and of its making. However, once the order is made and served on its subject, the position changes, the subject is aware of the order and has an interest in it and, as I see it, O.32, r.6 gives him an avenue under which he can ask the Court to reconsider the making of the order."

42.In my view, Lugar-Mawson J, in the second passage to which I have referred, succinctly laid to rest the lis inter partes issue. While I am not bound by his judgment, I am satisfied that it is a correct pronouncement of the law.

43.Finally, I come to the submission made by Mr Zervos that, in terms of s.85 of the Ordinance, while the issue of a search warrant by a District Judge may be open to review by this Court, the issue of the same warrant by a judge of this Court is final and is not open to challenge. Mr Zervos founded this submission on the provision contained within s.85(1) that an application for the issue of a warrant may be made to a District Court judge or to a judge of the Court of First Instance. As I understood Mr Zervos, it was his contention that, if the decision is made to bring an application to the higher court, a more rigorous, more deeply informed scrutiny will take place; that itself, in so far as s.85 reveals legislative intent, being considered by our law makers to be sufficient and requiring no form of appeal or review. I do not agree. I have no doubt that the legislature, in making the law, looked to the same level of rigorous and informed scrutiny from the judges of both the District Court and the Court of First Instance. In my view, the clear purpose of providing for the two courts is simply because both exercise criminal jurisdiction and it may in any given case be more appropriate to apply to one court rather than the other.

44.For the reasons given, I am satisfied therefore that I do possess jurisdiction to determine an application made under O.32, r.6 to set aside the search warrants.

The principles underlying Part XII

45.Critical to Sing Tao's case in respect of its primary remedy is a consideration of the structure of the scheme contained within Part XII of the Ordinance. It was Mr Dykes' submission that a consideration of that structure reveals the legislative intent behind the scheme and thereby dictates the principles to be adhered to by the courts in discharging their judicial responsibilities under it.

46.In my judgment, the scheme contained in Part XII of the Ordinance must be viewed through the prism of art.27 of the Basic Law. That article commences : "Hong Kong residents shall have freedom of speech, of the press and of publication ...".

47.In short, in Hong Kong a free press is a constitutional guarantee. It is a guarantee of the greatest importance for it is the function of the press to act as the eyes and ears of all concerned citizens. It was Thomas Jefferson, the third president of the United States of America, who said : "No government ought to be without censors, and where the press is free none ever will".

48.It follows that a free press must be an effective press, not moribund or compliant. If it is to act as the eyes and ears of all concerned citizens it must be able, when necessary, to obtain information which would otherwise not be revealed to the light of day and to protect the identity of those willing to pass on such information. In an often cited passage, the European Court of Human Rights, in its judgment in Goodwin v. United Kingdom [1996] 22 E.H.R.R.123, para.39, affirmed that -

" ... freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to the press are of particular importance. Protection of journalistic sources is one of the basic conditions for press freedom, as it reflected in the laws and the professional codes or conduct in a number of Contracting States and is affirmed in several international instruments on journalistic freedoms. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest."

49.This passage was approved by Lord Phillips in Ashworth Hospital Authority v. MGN Ltd [2001] 1 WLR 515, at 534. In the same judgment, at 537, Laws LJ, in referring to the same passage, expanded upon it to the following effect :

" It is in my judgment of the first importance to recognise that the potential vice - the 'chilling effect' - of court orders requiring the disclosure of press sources is in no way lessened, and certainly not abrogated, simply because the case is one in which the information actually published is of no legitimate, objective public interest. Nor is it to the least degree lessened or abrogated by the fact (where it is so) that the source is a disloyal and greedy individual, prepared for money to betray his employer's confidences. The public interest in the non-disclosure of press sources is constant, whatever the merits of the particular publication, and the particular source. The suggestion (which at one stage was canvassed in the course of argument) that it may be no bad thing to impose a 'chilling effect' in some circumstances is in my view a misreading of the principles which are engaged in cases of this kind. In my judgment, the true position is that it is always prima facie (I can do no better than the Latin) contrary to the public interest that press sources should be disclosed; and in any given case the debate which follows will be conducted upon the question whether there is an overriding public interest, amounting to a pressing social need, to which the need to keep press sources confidential should give way."

50.These statements of judicial principle by the European Court of Human Rights and the English Court of Appeal quite clearly, in my view, apply to the statutory scheme for the search and seizure of journalistic material contained within Part XII of our Ordinance, demanding that Part XII be interpreted consistently with these principles. Art.27 of the Basic Law (referred to in para.46 supra) and art.9 of the International Covenant on Economic, Social and Cultural Rights, incorporated into our law in terms of art.39 of the Basic Law, contain similar provisions as art.10 of the European Convention, affirming in substance the same constitutional protections of freedom of expression, orally or in writing or through the media.

51.In so far as it is necessary to look further to the intent of our law makers, in moving the second reading of the bill which was to be passed into law as Part XII, the Secretary for Security said the following when addressing the Legislative Council on 28 June 1995 :

" We are aware of the community concerns, particularly those expressed by Members of this Council and members of the media, that the powers of search and seizure of the police are too wide, and that such powers, if abused in relation to journalistic material, may threaten press freedom. Although we were asked only to amend the Police Force Ordinance, we discovered that similar provisions are contained in a number of other Ordinances. Therefore, we propose to deal with them all, by amending the Interpretation and General Clauses Ordinance."

The provenance of Part XII

52.In respect of the search and seizure of journalistic material, the English Police and Criminal Evidence Act 1984 ('PACE') has given legislative recognition to the fundamental requirement to ensure the freedom of the press. PACE creates a statutory scheme which - in respect of a range of confidential material (described in the statute as 'excluded' or 'special procedure' material; journalistic material falling into the first category) - seeks to balance two conflicting public interests; namely, the public interest in the investigation of crime and the public interest in maintaining the confidentiality of material such as journalistic material or, for example, papers held by a solicitor that are not subject to legal privilege.

53.In respect only of journalistic material, Part XII of the Hong Kong Ordinance is modelled on, indeed, in its essentials, is a mirror of the procedures and protections contained in PACE.

54.In the course of his submissions, Mr Zervos contended that the statutory scheme contained in Part XII of our Ordinance constitutes a markedly different regime from the one contained in PACE. I must reject that contention. Yes, the statutory scheme in PACE is broader, encompassing a range of confidential material, not only journalistic material. But in so far as journalistic material is concerned, Part XII of the Hong Kong Ordinance has adopted the same system of procedures as those laid down in PACE and, in respect of those procedures, has qualified them in the same manner. In my judgment, it is manifest that the Hong Kong legislature, looking to the same conflicting issues of public interest as the English Parliament; namely, the need for the efficient investigation of crime and the need to protect the freedom of press, has chosen to adopt the same legislative scheme as the English Parliament.

55.That being the case, I am satisfied that English jurisprudence concerning the principles to be adhered to by the courts in determining applications for search and seizure of 'excluded' or 'special procedure' material in terms of PACE constitute authorities of direct relevance to applications made under s.85 of Part XII of the Ordinance.

56.During the course of hearing before me, Mr Dykes, for Sing Tao, placed a body of English cases before me which go directly to the manner in which the English courts must determine applications made in terms of PACE for the search and seizure of journalistic material or confidential material held by solicitors. I shall refer to a number of these cases shortly. Having read these cases, I am satisfied that the principles set down in them not only provide valuable guidance in respect of applications made under Part XII of the Ordinance but go further, defining the principles that must be applied by our courts in determining applications made pursuant to s.85 of Part XII.

57.Regrettably, none of these authorities were placed before Stone J. If those authorities had been known to him, on a reading of the transcript of the proceedings, I am of the belief that, guided by the principles contained in them, Stone J would have been less likely to have made the orders he did. Indeed, I go so far as to say that, on my reading of the transcript, I think it highly unlikely that the orders would have been made.

An overview of Part XII

58.In order of gravity, the two coercive measures contained in the statutory scheme under Part XII may be summarised as follows :

(i) The least 'intrusive' application is one made on notice for an order to produce journalistic material pursuant to s.84(2), either so that access only may be given to it or so that it may be taken away. This procedure does not involve any 'without notice' entry and seizure. Instead, the parties are able to make representations to a judge at an inter partes hearing as to whether the journalistic material should be delivered up or the application refused. It is to be emphasised that service of a notice under s.84 places an obligation on the recipient of the notice to preserve the journalistic material which is now the subject of the production procedure. Service of a notice in terms of s.84 does not therefore give to the recipient liberty to destroy confidential material. If that is done, it is subject to sanguine punishment. In this regard, s.88(5) and (6) read :

(5) Where notice of an application for an order under section 84 has been served on a person, he shall not conceal, destroy, alter or dispose of the material to which the application relates except -

(a) with the leave of a judge; or

(b) with the written permission of the applicant, until -

(i) the application is dismissed or abandoned; or

(ii) he has complied with an order under section 84 made on the application.

(6) Any person who knowingly contravenes subsection (5) commits an offence and is liable to a fine at level 6 and to imprisonment for 1 years."

(ii) The second procedure - in my judgment, the statutory scheme contained within Part XII makes it a procedure of last resort - is an ex parte application made under s.85 for the issue of a search warrant so that journalistic material may be searched for and seized without notice being given to the newspaper or journalist involved. This procedure may be subject to the condition that any material seized will be sealed pending a possible application for its return or may allow the investigating agency to have immediate access to it.

59.Both of these procedures, impinging on the freedom of the press, are subject to stringent consideration. The legislation states in unambiguous terms that applications under s.85 to search for and seize journalistic material are to be the subject of separate proceedings. This is underscored by s.83 which reads :

" A provision in any Ordinance which confers on, or authorizes the issue of a warrant conferring on, any person the power to enter any premises and to search the premises or any person found on the premises or to seize any material (whether of a general or particular kind and whether or not the word 'material' is used in that provision) shall not, in the absence of an express provision to the contrary, be construed as conferring, or authorizing the issue of a warrant conferring, a power to enter premises where such entry is for the purpose of searching for or seizing material which is known or suspected to be journalistic material."

60.Of central importance, is that the legislature, in conferring the discretion to issue production orders under s.84 or search warrants under s.85, requires judges to look not only to the imperatives of a criminal investigation but in each case to consider applications within the broader context of 'the public interest'; that being the public interest to protect the freedom of the press.

61.In this regard, a judge may only issue a production order in terms of s.84 if, in addition to a list of other stringent considerations, he is satisfied in terms of s.84(3) that -

"(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."

[my emphasis]

A judge to whom an application has been made to issue a search warrant in terms of s.85 (when there has been no production order made in respect of which there has been non-compliance) may only do so when he too, in addition to a list of other stringent considerations, is satisfied of the same requirements. In this regard, s.85(3) reads :

"(3) If on an application under subsection (1) a judge -

(a) 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 authorizing the applicant to enter onto the premises and to search the premises and any person found on the premises and to seize any material."

[my emphasis]

62.The legislation contained in Part XII further makes it plain that the issue of a search warrant should be what I will call an investigative tool of last resort. In terms of s.84(3)(c)(i), a judge may only make a production order if he is satisfied that 'other methods of obtaining the material (i.e. seeking its voluntary disclosure) have been tried and failed' or that such methods have not been tried because they were unlikely to succeed or would be likely to 'seriously prejudice' the investigation. The likelihood of prejudice is not enough, it must be serious prejudice. In terms of s.85(5), a judge may only issue a search warrant if he is satisfied that it is not practicable for the investigating agency to communicate with anybody entitled to grant entry to the premises where the material is believed to be held or access to the material itself or that service of a notice under s.84(2) seeking a production order 'may seriously prejudice the investigation'. In respect of this last option, again prejudice is not enough, the judge must be satisfied that a failure to follow the 'production order route' may result in serious prejudice to the investigation

63.In the present case, based on the seriousness of the criminal offences being investigated and the fact that the newspapers and journalists were themselves the subject of investigation, the ICAC did not seek voluntary disclosure nor did it seek delivery up of the material by following what I have called the 'production order route'. It went directly to the measure of last resort; namely, an ex parte application for the issue of search warrants.

64.In my judgment, no material was placed before Stone J nor has any material been placed before me to justify the ICAC determining that it should proceed directly to seek the issue of search warrants. I have reached this determination after taking into account the authorities placed before me by Mr Dykes. That being the case, before stating my reasons for my determination, something must be said of those authorities.

A consideration of the English authorities

65.In so far as they apply to ex parte applications for the issue of warrants to search for and seize 'excluded' or 'special procedure' material, the English authorities establish the principles which I set out below. As I have indicated earlier in this judgment, I am of the view that these principles apply equally to applications made to our courts for the issue of search warrants pursuant to s.85 of Part XII of the Ordinance. The principles may be summarised as follows :

(i) An application for a search warrant constitutes a serious intrusion upon the freedom of the press. The responsibility for ensuring that the procedure is not abused lies with the courts and it is of cardinal importance that judges should be scrupulous in discharging that responsibility. See R v. Maidstone Crown Court, ex parte Waitt [1988] Crim LR 384.

(ii) The issue of a search warrant constitutes the exercise of a draconian power and it is therefore for the judge to satisfy himself that there are reasonable grounds for believing the various matters set out in the supporting affidavit. The fact that an investigating officer, who has been investigating the matter, states in the affidavit that he considers that there are reasonable grounds is not enough. The judge must himself be satisfied. See R v. Southampton Crown Court, ex parte J and P (unreported) CO/1421/1992-Lexis Transcript, page 17, citing with approval the observations of Parker LJ in R v. Guildhall Magistrates Court, ex parte Primlaks Holding Co. (Panama) Inc. [1990] 1 QB 261.

(iii) An application for a search warrant should not be a matter of common form; the preferred method should be by way of giving notice to seek a production order. See R v. Lewes Crown Court, ex parte Nigel Weller & Co. (unreported) CO/2890/1998-Lexis Transcript.

(iv) The fact that the staff of a newspaper or journalists believed to be in possession of journalistic material may themselves be under investigation for the commission of criminal offences is not of itself necessarily a sufficient reason for a judge issuing a warrant. See R v. Southampton Crown Court, ex parte J and P (supra), per Auld J :

"the fact that a solicitor is himself under investigation is not of itself necessarily a sufficient reason for ordering such an intrusion into his affairs and those of his clients. All the circumstances of the individual application must be taken into account, including, for example, the seriousness of the matter being investigated, the evidence already available to the police to found a prosecution based on it, and the extent to which the solicitor has already been put on notice of interest on his affairs such as might have caused him to hide or destroy or otherwise interfere with incriminating documents."

(v) The risk that journalistic material may be hidden or destroyed must be a 'real risk', which is the phrase I prefer, or, as the court accepted in R v. Leeds Crown Court, ex parte Switlaski (unreported) CO/1322/89-Lexis Transcript, should amount to a 'substantial probability'. A judge should not issue a warrant unless material is placed before him demonstrating that in the particular case, if notice is given, there is a real risk, as opposed to a mere possibility, that the journalistic material will be hidden or destroyed. See, for example, R v. Central Criminal Court, ex parte Propend Finance Property Ltd & Another [1996] 2 Cr.App.R.26 at 30 :

"... the Commonwealth of Australia is prepared to consent to an order of certiorari quashing the issue of the warrants, and no party now before the court contends that they were rightly issued. The principal reason why this is accepted, and the only aspect of the grounds into which we need travel at all, is that this was not a proper case for an order to be made ex parte. That is because, in essence, there was no material placed before the learned judge which was capable of demonstrating that there was any risk that, if served with an inter partes notice, either the solicitors or the accountants would have so misbehaved as to destroy all the documents ... In effect, Judge Goddard Q.C. had nothing but the assertion of a long-standing association between the clients and the firms as a basis upon which to issue an ex parte order. That was manifestly not enough."

(vi) In determining an application made under s.85, a judge should give reasons for his decision even though they need not be elaborate. See, for example; R v. Central Criminal Court, ex parte Propend Finance Property Ltd (supra) :

" The learned judge then proceeded to order the warrants. She gave no reasons for her decision. With respect to her, she should have done so. That is not only because generally judges should always give reasons for what they do, but in particular because she was here exercising a draconian jurisdiction."

(vii) An applicant who seeks the issue of a warrant under s.85 of Part XII must act in the utmost good faith and disclose to the court all matters which need to be taken into account by the court in deciding whether or not to grant relief ex parte, and if so, on what terms. In this respect, an applicant is in the same position as an applicant seeking an Anton Piller order. See Gross and Others v. Southwark Crown Court and Others (unreported) CO/1759/98-Lexis Transcript :

"The remaining criticisms of the application concern the lack of full and frank disclosure. The procedure ... has been correctly likened to the Anton Piller orders in the civil jurisdiction, and there is abundant authority that it is the duty of the applying party to make the fullest disclosure of all facts which may be relevant, whether those facts are favourable to him or adverse."

My determination of the O.32, r.6 application

66.As I have earlier observed, the decision by the ICAC to by-pass less intrusive proceedings and to go directly to the measure of last resort by making an ex parte application for search warrants was based on two considerations. First, the seriousness of the criminal offences being investigated and, second, the risk of the journalistic material to which access was sought being destroyed.

67.To make good its application, that is, to convince Stone J to exercise the draconian power of issuing search warrants, the ICAC had to demonstrate that, if it attempted to obtain the journalistic material by pursuing the 'production order route' and serving notice of its intention on Sing Tao in terms of s.84(2), that may 'seriously prejudice' its investigation. Put shortly, in the circumstances of this case, it had to demonstrate that there was a real risk that the staff of Sing Tao and the journalist involved in writing the news story would destroy the material being sought. Indeed, it had to demonstrate this real risk in respect of all seven newspapers and each and every journalist made the subject of search warrants. On my reading of the transcript of the proceedings before Stone J, I fail utterly to see how that was demonstrated or could have been demonstrated.

68.As Auld J said in R v. Southampton Crown Court, ex parte J and P (supra) all the circumstances of the individual application must be taken into account. In my view, this would include not only the seriousness of the matter being investigated and the fact that the newspapers and journalists were themselves under investigation but also the evidence already available and all other circumstances which would give rise to a reasonable finding that there was - or was not - a real risk that the journalistic material being sought would be destroyed. Could it really be said that, if a notice was served pursuant to s.84(2) there was a real risk that all seven newspapers and each and every journalist would destroy the material in issue despite the fact that to do so would constitute a grave criminal offence and may well visit those persons with a sentence of incarceration? While there are renegades in every profession, the profession of journalism is one of an integrity, one that, if it is to maintain the trust of the public, must always adhere to that integrity.

69.During the course of hearing before Stone J, he asked how it could be concluded that all the newspapers and all the journalists would do away with the material. As I have said earlier (para.27) counsel for the ICAC was only able to answer : "It's not a question of knowing that they will, it's a question of not being able to take the risk that they won't ... that's the same in any search warrant situation. We're talking about a very serious criminal investigation ..." But that of itself is not sufficient. The statutory regime created under Part XII of the Ordinance is not to be equated with the everyday issue of search warrants in respect of criminal offences. To avoid the criticism that I have taken counsel's words out of context, I should state that, on my reading of the affidavit by Mr So in support of the s.85 application, in substance, it said no more.

70.In making the ex parte application, counsel for the ICAC was obliged to make full and frank disclosure of all relevant matters to assist Stone J in coming to a most difficult decision. There can be no suggestion that counsel, a barrister of the highest professionalism and repute, deliberately failed to acquaint Stone J with the fairly substantial body of English jurisprudence to which I have referred. But the fact remains that Stone J had to reach his determination without the benefit of that jurisprudence and the guidance it would have given him. As I have said earlier, I am satisfied that Stone J, who was drawn reluctantly to his final decision, if he had been made aware of the authorities, would have been most unlikely to have made the orders he did.

71.In all the circumstances, I have no doubt in my mind that on this occasion the ICAC was wrong in fact and in law in seeking the issue of search warrants when, in terms of the statutory scheme contained within Part XII of the Ordinance, it could equally have achieved it legitimate aim by less intrusive measures. The search warrants must therefore be set aside in terms of O.32, r.6.

The application made in terms of s.87(2) of the Ordinance

72.As I have come to the determination that the search warrants issued by Stone J must be set aside in terms of O.32, r.6 of the Rules of the High Court, there is no need for me to move on to consider the return of the materials to Sing Tao pursuant to s.87(2) of the Ordinance.

Conclusion

73.For the reasons given in the body of this judgment, I am satisfied that the search warrants issued by Stone J, which are the subject of these proceedings, must be set aside. I make that order. As to costs, I see no reason why costs should not follow the event. I will make an order nisi to that effect, the order to be made final in 21 days from the date of this judgment unless an application is filed earlier seeking a different order.

Representation:

Mr Kevin Zervos, SC, SADPP leading Mr Alex Lee, SGC of Department of Justice, for the Applicant

Mr Philip Dykes, SC leading Mr Victor Dawes, instructed by Messrs Wilkinson & Grist, for the 1st and 2nd Respondents