Philip K.H. Wong, Kennedy Y.H. Wong & Co (A Firm of Solicitors) and Another v. The Commissioner of the Independent Commission Against Corruption
Read the full judgment text of CACV 4/2008 on BabelCite. This Court of Appeal judgment was delivered on 28 March 2008.
1. For the reasons contained in the judgment of Stock JA, I would allow the appeal. I also agree with the orders proposed by him. I wish also to make it clear that the remainder of the issues in these judicial review proceedings should be remitted to Saunders J for determination. No good reason has been shown for the matter to be dealt with by a different judge.
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CACV 4/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 4 OF 2008 (ON APPEAL FROM HCAL NO. 70 OF 2007) _______________________ BETWEEN
_______________________ Before: Hon Ma CJHC, Stock JA and A Cheung J in Court Dates of Hearing: 3 and 4 March 2008 Date of Handing Down Judgment: 28 March 2008 _______________________ J U D G M E N T _______________________ Hon Ma CJHC: 1.For the reasons contained in the judgment of Stock JA, I would allow the appeal. I also agree with the orders proposed by him. I wish also to make it clear that the remainder of the issues in these judicial review proceedings should be remitted to Saunders J for determination. No good reason has been shown for the matter to be dealt with by a different judge. Hon Stock JA: Introduction 2.On 22 May 2007, a magistrate issued a warrant under section 10B of the Independent Commission Against Corruption Ordinance, Cap. 204 (ICACO) by which officers of the Independent Commission against Corruption (ICAC) were authorized to enter and search the offices of a firm of solicitors, the first applicant, in Admiralty Centre, Hong Kong. The ICAC was conducting an investigation into an allegation that a senior civil servant of the Macau Special Administrative Region Government accepted advantages from individuals and companies in Hong Kong as reward for showing favour in relation to the affairs of that Government (an offence contrary to section 9(1) of the Prevention of Bribery Ordinance, Cap. 201(POBO)) and that he and his associates had, in connection therewith, dealt with property known or believed to be the proceeds of an indictable offence, contrary to section 25 of the Organized and Serious Crimes Ordinance, Cap. 455 (OSCO). 3.It is the relationship between the search warrant provisions of these three Ordinances that is at issue in this appeal. The contention which found favour with the judge below was that whenever the ICAC was investigating an organized crime, as defined by OSCO, or were conducting an investigation into the proceeds of such a crime or into the proceeds of a “specified offence” as defined by that Ordinance, even if as part of a wider non-OSCO investigation, it was duty-bound to avail itself of the procedures prescribed by OSCO for obtaining material and, if necessary, for securing a search warrant; and was not permitted in such circumstances to seek a search warrant under ICACO or POBO, at least so far as the OSCO offence investigation was concerned. 4.By application for judicial review, the solicitors, as well as a secretarial service company (the second applicant) operating at the same premises against whom a similar warrant was issued, challenged the validity of the warrants as well as the decision of the ICAC Commissioner to seize and detain documents pursuant to the warrants and to section 10C of ICACO. 5.By his judgment dated 14 December 2007, Saunders J held that:
6.The judge took this view on the basis that the powers given to the ICAC under ICACO were general powers and that where specific provision is made by another enactment, in this case OSCO, the general, and in this case earlier, power, is qualified by the specific and later provision. That meant, so he found, that:
Section 5 stipulates the procedure by which a search warrant under OSCO may be obtained. 7.The judge accordingly, and for these reasons alone, set aside the decision of the magistrate to issue the warrants, set aside the warrants and set aside the decision of the Commissioner to execute them as well as his decision to seize and detain documents. This is the Commissioner’s appeal from that judgment. 8.If correct, the ramifications of the judgment below are profound, not only for the ICAC but for other law enforcement authorities as well. The procedure under OSCO designates the Court of First Instance and the District Court as the forums for OSCO applications and demands a series of conditions precedent to the issue of a search warrant which are far more complex than for search warrant powers conferred by other statutory vehicles. It would mean that whenever such an agency undertakes an investigation where there are reasonable grounds for suspecting that a number of crimes have been committed and a search warrant is required for the proper pursuit of that investigation, there will have to be a bifurcated approach if one of those suspected crimes happens to be an organized crime or one classified by OSCO as a specified offence (insofar as the investigation concerns its proceeds). In other words, for the suspected OSCO offence, an application for a search warrant will have to be made to the Court of First Instance or the District Court but even then, in many instances, only after earlier applications have been made, some open only to the Secretary for Justice to make, whereas in relation to non-OSCO offence material, a separate application or applications will have to be made under another Ordinance, most often in practice to a magistrate. The Commissioner contends that the result is antithetical to effective law enforcement and could never have been intended by the legislature. He has therefore brought this appeal against the judge’s decision as a matter of some urgency. The statutory frameworks 9.I was at one stage under the impression that the applicant’s argument was, or was akin to one, that suggested implied repeal by OSCO of certain investigatory powers conferred by ICACO. We were assured that no such argument is advanced. Rather, the argument is along the lines that the legislature intended the specific investigative provisions of OSCO to apply or to be utilised to the exclusion of investigative tools available under other Ordinances whenever the subject matter of the investigation for which a search warrant was sought was confidential information in the hands of an innocent third party, in so far, that is, that the investigation was into an OSCO offence. The judge’s reasoning was in the same vein, and he prayed in aid the notion that OSCO’s provisions were later specific provisions that overrode the general powers of the ICACO. Given these arguments and that reasoning, it is necessary to examine the provisions of the relevant Ordinances in some detail. (1) OSCO 10.OSCO was enacted in 1994. It is complex. In its preamble, it announces itself as an Ordinance “to create new powers of investigation into organized crimes and certain other offences and into the proceeds of crime of certain offenders; provide for the confiscation of proceeds of crime; … create offences relating to the proceeds of crime or property representing the proceeds of crime; …” 11.By virtue of section 2 (1) “organized crime”:
12.Schedule 1 lists a number of serious common law offences, and it contains a longer list of statutory offences which, so far as is relevant to the present appeal, includes an offence contrary to section 25(1) of OSCO, namely, the offence of dealing with property known or believed to represent the proceeds of an indictable offence. It will be recalled that such an offence was suspected and was under investigation in this case. It was contended that since two or more persons were said to have been associated together for this money laundering purpose, OSCO was therefore engaged. Accordingly, the argument and this judgment proceed on the basis that one of the offences under investigation by the ICAC was an OSCO offence. 13.Part II of OSCO confers certain powers of investigation. They are contained in sections 3, 4 and 5. (a) The witness provision 14.Section 3 may conveniently be referred to as a witness provision. By virtue of its stipulations, the Court of First Instance may upon an ex parte application by the Secretary for Justice made “for the purpose of an investigation into an organized crime” make an order in respect of a particular person, or persons of a particular description, to answer questions that appear to an “authorized officer” to be relevant, and to produce material. The designation “authorized officer” appears frequently in OSCO and to its definition I will shortly turn. Amongst the conditions about which the court must be satisfied before it makes such an order is one that requires the establishment of reasonable grounds for believing that it is in the public interest to make such an order having regard:
15.There is in section 2 a specific provision relating to legal professional privilege. Sections 2(18) and (19) provide that:
Section 3(9) repeats the protection in relation to witness orders, with slight qualification:
16.A person is not excused from furnishing information or producing material under the section on the ground that it might incriminate him or breach an obligation of secrecy; but a statement made by a person pursuant to the section may not be used against him in criminal proceedings, save for certain limited purposes.[4] (b) The production provision 17.Although section 3 includes a power to order a particular person to produce material, section 4 of OSCO is confined to that end. It is also wider than section 3, since an application for an order under section 4 may be made not only by the Secretary for Justice but also by an authorized officer. Furthermore, the investigation which may trigger a section 4 application is not restricted to an investigation into an organized crime, but extends to an investigation into the proceeds of an organized crime or the proceeds of a ‘specified offence’.[5] The order may be made not only in relation to material in Hong Kong but also in relation to material elsewhere, but in the latter case only upon the application of the Secretary for Justice. 18.What the Court of First Instance may do, upon satisfaction as to certain conditions, is to make an order that the person who appears to the court to be in possession or control of the material to which the application relates shall produce that material to an authorized officer for him to take away or shall give an authorized officer access to it.[6] 19.Here we must pause to note what is meant by an ‘authorized officer’ and what is meant by a ‘specified offence’. 20.By reason of section 2(1) ‘authorized officer’ means:
21.It will immediately be seen that the legislature has, by this definition, identified two specific law enforcement agencies, namely, the police, and officers of the Customs and Excise Service. The legislature has not specifically identified the ICAC. That means that in any instance in which OSCO confers a power or duty upon an authorized officer, that power or duty cannot lawfully be performed under OSCO by an ICAC officer unless that officer has in that behalf been authorized in writing by the Secretary for Justice. There is no suggestion that the Secretary for Justice has by any one instrument given an authorization to the ICAC at large: given the structure of the definition, it would have been odd had he done so. Argument has thus proceeded on the basis that every time the ICAC wishes to avail itself of the investigatory powers conferred by OSCO, it must first seek and obtain an authorization in writing from the Secretary for Justice. 22.A ‘specified offence’ is any offence specified in Schedule 1 or Schedule 2.[7] I have already alluded to the nature of Schedule 1 and its inclusion of a section 25 offence.[8] Schedule 2 is only relevant for present purposes for its inclusion of offences under POBO. At the date upon which the applications for the warrants were made in this case, section 9(2) of POBO was a specified offence, but section 9(1) – relevant to the primary offence under investigation in the present case – was not, although it has since been added. 23.There are a number of preconditions for the making of an order under section 4. One precondition requires the court to be satisfied that there are reasonable grounds for believing that the material to which the application relates does not consist of or include items subject to legal privilege.[9] Another is that there are reasonable grounds for believing that it is in the public interest, having regard to the benefit likely to accrue to the investigation if the material is obtained, that the material should be produced, or access given.[10] 24.There are rules of court governing applications under sections 3, 4 and 5. They are constituted by Order 116 of the Rules of the High Court and provide for applications to be heard in camera and for applications to be made for the discharge or variation of witness and production orders. There is also a particular provision[11] that prescribes the procedure to be followed in order to establish a claim of legal privilege in respect of information sought under section 3 and material ordered to be produced under sections 3 and 4. (c) Search warrants 25.Section 5 empowers an authorized officer for the purpose of an investigation into an organized crime, or into the proceeds of an organized crime or of a specified offence, to apply either to the Court of First Instance or to the District Court for a warrant enabling entry to and search of specified premises, where it is shown that there are reasonable grounds for suspecting the commission of an organized crime or specified offence, as the case may be, and in the case of an investigation into the proceeds of such a crime or offence, that there are reasonable grounds for suspecting that the person has benefited from it.[12] 26.There are other highly specific conditions precedent to the issue of such a warrant. To put the matter broadly, they include satisfaction on the part of the court that a requirement under section 3(6) by the Secretary for Justice for the production of material, pursuant to a section 3 order, has not been met; or that a section 4 order has not been complied with; or that it would not be appropriate to make an order under section 4 because it was not practicable to communicate with any person entitled to produce the material; or that the investigation in respect of which the application is made might seriously be prejudiced unless an authorized officer could secure immediate entry to premises in which the relevant material is suspected to be. 27.Once an authorized officer has entered premises in execution of a warrant issued under the section, he is entitled to seize and retain any material “other than items subject to legal privilege” likely to be relevant to the investigation for which the warrant was issued.[13] 28.Section 5(8) confers a particular power in relation to journalistic material. The Interpretation and General Clauses Ordinance, Cap. 1, provides that in the absence of an express provision to the contrary, a power conferred by any Ordinance, whether through warrant or otherwise, to enter and search premises shall not be construed as a power to search and seize journalistic material.[14] Section 5(8) of OSCO is such a contrary express provision, although the preconditions prescribed by section 5 must be fulfilled before a warrant to that end may issue. 29.O. 116, r. 8 makes particular provision for the procedure to be followed in case, in the execution of a warrant under section 5, a claim of legal privilege is made in respect of particular material. The provision requires that the material in respect of which such a claim is made be secured in a sealed container and for an application to the court by summons for a declaration that the material is subject to legal privilege. There is no such statutory procedure provided in the case of search warrants obtained under ICACO or POBO; a factor, say the applicants, of some significance. (d) The Inland Revenue 30.Section 6 makes clear – if that were not already obvious from the preceding provisions – that even the Inland Revenue Department may be the subject of an order under sections 3, 4 or 5, for the section enables information thus obtained from that Department that normally is subject to an obligation of secrecy under the Inland Revenue Ordinance, Cap. 112, to be disclosed to the Secretary for Justice for the purposes of a prosecution of a specified offence and allied proceedings. Such information may also be disclosed to certain named bodies, including the ICAC, where the information appears to the Secretary for Justice to be likely to assist that body to discharge its functions. (e) Tipping off 31.One of the reasons why OSCO may be of particular value to an investigation is to be found in section 7. It creates an offence of prejudicing an investigation, an offence that is constituted where an order under sections 3 or 4 has been made, or has been applied for and not refused, or where a section 5 warrant has been issued, and a person, knowing or suspecting that the investigation is taking place, makes any disclosure intending to prejudice the investigation or falsifies, conceals, destroys or otherwise disposes of material known by him or her to be likely to be relevant to the investigation. The offence carries a maximum term of seven years imprisonment upon conviction on indictment. (f) Confiscation and restraint orders 32.Other provisions worthy of note for present purposes are sections 8, a lengthy section, that enables the Court of First Instance or the District Court to make a confiscation order in respect of the proceeds of a specified offence; and sections 14 and 15, whereby the Court of First Instance may, in certain specified circumstances where proceedings have been instituted in Hong Kong against a defendant for a specified offence, or where the court is satisfied that there is reasonable cause to believe that he may be so charged after further investigation, make a restraint order in respect of realisable property held by a specified person. (2) The Prevention of Bribery Ordinance (POBO) 33.This Ordinance was enacted in 1971 as the centerpiece of an attack against corruption in Hong Kong. The ICAC was subsequently established as the law enforcement vehicle for that attack. 34.POBO creates offences of soliciting or accepting an advantage;[15] offering an advantage to a public servant as an inducement to that servant’s performing or abstaining to perform an act in his capacity as a public servant[16]; an offence of possession by a prescribed officer of unexplained property[17]; and offences of offering[18] an advantage to, or the acceptance[19] of an advantage by, an agent as an inducement to or reward for his doing or forbearing to do an act in relation to his principal’s affairs; as well as several other similar corruption offences. (a) Special powers 35.There are a number of weapons placed by POBO in the hands of the ICAC that are similar to those found in OSCO. For example:
(b) Privilege 36.There are two provisions relating to legal privilege:
(c) Tipping off 37.There is a provision that renders it an offence for any person who knowing or suspecting that the investigation of a POBO offence is taking place discloses without lawful authority or reasonable excuse, to the person under investigation or to the public, the fact that the suspect is under investigation.[28] (d) Search warrants 38.The availability of a search warrant under section 17 POBO comes untrammeled by the extensive preconditions of OSCO. An application for a search warrant may be made to a magistrate, and the warrant may be issued if the court is satisfied that there is reasonable cause to believe that there is in any premises or place anything which is or contains evidence of an offence under POBO. 39.It is to be noted that under section 17 the warrant may only authorize entry and search but not seizure. Moreover there is a power conferred upon the Commissioner himself to issue a warrant directed to an investigating officer that in turn empowers that officer to enter premises, by force if necessary, and search those premises; a power reserved for situations where the Commissioner is satisfied that there is reasonable cause to believe that the making of an application to a Court would seriously impede an investigation.[29] This is not a power conferred on law enforcement authorities by OSCO. The ICAC Ordinance (ICACO) 40.This Ordinance was enacted in 1974 and has been amended on several occasions. Some of the amendments, including one to the search warrant provision at issue in this case, were enacted after enactment of OSCO. 41.The purpose of the Ordinance was to establish the Independent Commission against Corruption, to consist of a Commissioner, a Deputy Commissioner and such other officers as might be appointed. It was provided that the Commissioner was not to be subject to the direction or control of any person other than the Chief Executive.[30] 42.Whereas a police officer is entitled to arrest any person whom he reasonably suspects to be guilty of any offence for which the sentence is fixed by law or for which a person may on a first conviction for that offence be sentenced to imprisonment,[31] the power of arrest (without warrant) conferred upon an ICAC officer by section 10 of ICACO is considerably more circumscribed:
43.A ‘prescribed officer’ is defined by section 2 as any person holding an office of emolument under the Government and includes a number of other specified officials, such as judicial officers. None of the subsection (5) offences was at play in the present investigation; but they include a wide range of offences, the very type that one might expect the ICAC to stumble across in the course of investigating a corruption offence, such as fraud, obtaining property by deception, and false accounting. 44.Section 10B is the search warrant provision pursuant to which the magistrate issued the search warrants which are the subject of challenge in this case. It provides as follows:
45.This section is broader than section 17(1) of POBO, in that the latter permits the issue of a warrant for the purpose of an investigation into a suspected POBO offence only, whereas section 10B of ICACO envisages the issue of a warrant to the ICAC not only during an investigation into a suspected POBO offence but also in relation to other offences covered by section 10 of ICACO. These search warrant powers have been described as complementary.[32] 46.A warrant issued under section 10B authorizes entry to and search of premises. It does not authorize seizure of material there found. A power of seizure is conferred by section 10C of ICACO:
47.There was some debate during the hearing of this appeal as to the circumstances in which the section 10C(1)(c) power of seizure may be employed. It is not necessary for the purpose of the issue at hand to decide that question, although it appears to me that the answer may well be that suggested by McWalters in ‘Bribery and Corruption Law in Hong Kong’ where the author suggests that this power of seizure is a freestanding power by virtue of which the seizing officer “is not limited to seizing only those items which he has reason to believe to be or to contain evidence of the offence or offences named in the warrant,” but that “once lawfully inside the premises under the authority of the search warrant he is entitled under section 10C(1)(c) to seize anything which he has reason to believe to be or to contain evidence of any of the offences referred to in section 10 of the ICACO.”[33] 48.Section 13 of ICACO empowers an officer authorized by the Commissioner in that behalf to enter Government premises and require a prescribed officer to answer questions, and the Commissioner may also authorize an officer to have access to all records, books and other documents relating to the work of any Government department in the possession or under the control of any prescribed officer. 49.There is, in this Ordinance as in the others to which I have referred, a provision relating to legal professional privilege:
Analysis 50.Mr Dykes SC, for the applicants, put the essence of his submissions in the following terms:
51.It is, in my opinion, palpably clear that by the enactment of OSCO the legislature did not intend that the investigative powers conferred by that Ordinance should, in the investigation of all organized crimes and in the investigation of the proceeds of all specified offences, replace or prevail over the investigative powers granted to the ICAC by POBO and ICACO. Had the legislature so intended it would have said so expressly, failing which that intention would have been made manifest by clear implication. The legislature did not say so expressly and the indicia, to which I will shortly turn, are quite contrary to the implication for which the respondents to this appeal, the applicants in the judicial review, contend. 52.There is no rule of law that dictates that where powers of entry and search are conferred upon a law enforcement authority by a number of statutory instruments, that authority is constrained, absent express or clearly implied stipulation to that effect, to utilize the statutory provision latest in time or the one that provides the most safeguards. Our Ordinances are replete with search warrant provisions and, as Mr McCoy SC for the appellant pointed out, the legislative technique in Hong Kong is to provide individual search warrant powers in specific contexts. There are, so we were told, no fewer then 121 Ordinances in this jurisdiction containing such a power and, in my opinion, it can safely be stated as a general rule that where in the course of an investigation a search warrant may be obtained pursuant to the provisions of a number of separate Ordinances, it is open to the investigating authority to choose whichever provision most conveniently suits its purpose, provided only that the conditions precedent prescribed by that Ordinance for such an application are met. 53.An argument similar to that advanced by the applicants in this case, echoed in the reasoning of Saunders J, was propounded in Regina v Multiform Manufacturing Co Ltd.[36] The Bankruptcy Act 1970 in Canada confers upon the Superintendent of Bankruptcy certain search powers; whereas section 443(1) of the Criminal Code permits a search warrant to be issued by a justice where there is reasonable ground to believe that there is in premises “anything on or in respect of which any offence against this Act or any other Act of Parliament has or is suspected to have been committed.”[37] In Multiform, a police officer charged by the Superintendent of Bankruptcy with investigating a bankruptcy offence went before a judge to obtain a search warrant under s. 443. The warrant was issued and an application was made to quash it. It was contended by those challenging the warrant that a s. 443 warrant was not available with respect to offences under the Bankruptcy Act because the Bankruptcy Act contained specific provisions to the same effect and that there was an “abuse of process involved in a search which violated the constitutional rights of the appellants where there existed less Draconian and less prejudicial methods of obtaining the same information.”[38] I have added that emphasis because it is almost a replication of the phrase used by the judge in this case[39] in his conclusion that the OSCO regime was “premised on the basis that, with respect [to] those types of parties, preferably, steps should be taken that are less intrusive or Draconian than a search warrant and that a search warrant should only be able to be obtained in limited, particularised circumstances”; a reference, it is true, to the regime in OSCO in so far as it requires section 3 or 4 steps to be pursued before a warrant may be sought under section 5, but nonetheless clearly his train of thought in concluding that for the same reason, OSCO should be used instead of ICACO or POBO because OSCO was less intrusive or Draconian. 54.The Quebec Court of Appeal rejected these arguments, holding that “mere coexistence does not have the effect of rendering the general provision in the other statute inoperative,”[40] unless in a more specific statute it was otherwise provided “either in a direct manner, for example by explicitly saying in the specific statute that such and such a disposition of the Criminal Code will not apply to that Act, or implicitly by adopting provisions which are irreconcilable with the provisions on the same subject in the Criminal Code.”[41] The test was incompatibility, “otherwise the two provisions have force and effect.”[42] An appeal from that decision to the Canadian Supreme Court was dismissed.[43] 55.A similar argument, albeit not buttressed by concerns for constitutionally protected rights of privacy, was rejected in The Hong Kong and Kowloon Credit Association Ltd v Attorney General[44] in which it was argued that the restricted rights to enter premises pursuant to a search warrant issued under the Money Lenders Ordinance, Cap. 163, should have been engaged rather than the broader provision which was section 50(7) of the Police Force Ordinance, Cap. 232. Bewley J held that it was open to the police to apply for a warrant under whichever section they considered appropriate. There was nothing in the two sections that was incompatible.[45] 56.There is no incompatibility between the exercise of investigative powers (including search powers) conferred by OSCO, on the one hand, and the investigative (including search) powers contained in ICACO and POBO on the other. There is much to indicate that the legislature could not have intended the result for which the applicants successfully contended in the court below. 57.It is no accident, in my opinion, that the definition of ‘authorized officer’ in section 2(1) of OSCO does not specifically name ICAC officers, whereas it does so name police officers and members of the Customs and Excise Service. It could hardly have been overlooked by the legislature that the ICAC constituted one of the major law enforcement agencies in this jurisdiction. I recognize that by reason of paragraph (c) of the definition of ‘authorized officer’, an ICAC officer may become an authorized officer if he is accorded that designation by a specific instrument in writing from the Secretary for Justice. But I cannot accept that it was the intention of the legislature that in the case of all ICAC corruption investigations which happened to stumble, as often they must, upon a suspected associated crime falling, either obviously or conceivably, within the OSCO definition of “organized crime”, the ICAC would, for the purpose of that associated offence, have to seek specific appointment by the Secretary for Justice in writing of one or more of its officers to be an authorized officer for the purpose of OSCO; a hurdle not presented to the police. 58.I have previously referred[46] to the bifurcating effect of the construction given by the court below. Let us take the example of an ICAC investigation into a standard (POBO) corruption offence in the course of which investigation an ICAC officer reasonably suspects the commission of theft connected with the corruption offence. By reason of section 10(2)(a) of ICACO, the ICAC officer would have the power to arrest a suspect for both offences and, but for the judgment of the court below, seek a search warrant in relation to any premises which contains evidence of the commission not only of the corruption offence, but also of the theft offence. Let us then suppose that the theft offence transpired to be an organized crime. Whatever its factual simplicity in a particular case, it could easily so transpire: it may in some way be connected with the activities of a triad society or it may be related to the activities of two or more persons associated together for the purpose of committing two or more acts of theft. What then? Well, if the applicants’ contention be correct and information were required from innocent third parties, it would follow that in relation to evidence relevant to the theft investigation (assuming such a neat division could be made) any need for a search warrant could only be satisfied by an application under section 5 of OSCO to the Court of First Instance or to the District Court. That application could only be pursued if the ICAC handed over the theft investigation to the police, because police officers are authorized persons, or if the Secretary for Justice were first to effect a specific authorization in respect of a named ICAC officer. In the meantime, any application for a search warrant in respect of the POBO offence that was not itself an organized crime would have to be made to a magistrate under POBO or ICACO. But, back with the OSCO application for the theft part of the case, a judge from whom the search warrant was sought would have to be persuaded that the OSCO conditions precedent to the issue of that warrant were met and, in practice, that would mean prior applications under sections 3 or 4 of OSCO. I cannot think that this impractical way of proceeding could have been intended by the legislature. 59.POBO contains special powers of investigation. As we have seen, they include a power to authorize an investigating officer to investigate accounts and to require from any person (including the innocent third parties upon whom Mr Dykes concentrates his argument) the production of such accounts, books, documents and other articles which may be required for a corruption offence investigation covered by the Ordinance.[47] The latest version of this provision was enacted in 1996, well after the enactment of OSCO. There is power also to require the production of material held by the Commissioner of Inland Revenue[48] – enacted in 1996[49] – and there is power to make an application to the Court of First Instance to obtain detailed information about assets and liabilities,[50] also enacted in 1996. If the applicant’s argument is correct, what is to happen, I ask rhetorically, to these powers if the subject matter of the investigation happens also to be a suspected organized crime or specified offence as defined by OSCO, remembering that, for example, sections 9(1) and (2) are (now) specified offences? Does it mean that these powers are then buried in favour of OSCO? Does it mean that instead of invoking these powers in the case of a requirement to furnish information, the Commissioner has instead to secure an application by the Secretary for Justice to the Court of First Instance under section 3 of OSCO? And if so, is one then to suppose that if the judge considers it inappropriate to make an order because the organized crime is not sufficiently serious[51], the special powers under POBO are then revived? And what if the suspected crime is a section 9(1) or (2) offence (a specified offence) – does it mean that the investigation into the offence itself is still governed by POBO but that any investigation into the proceeds of the offence must be pursued under OSCO? None of this, to my mind, would make sense. This is not what the legislature had in mind either when it enacted OSCO or when by legislation it subsequently entrusted the ICAC with specific special powers. 60.Similar rhetorical questions might be posed were one to assume that the case is uncomplicated by the revelation of more than one suspected offence. One may, for example, suppose a single POBO offence that is not a specified offence under OSCO and that, as matters appear at first, is not an organized crime. An offence under section 7 of POBO (bribery in relation to auctions) is one such instance. Is one to conclude that a section 10B (ICACO) search warrant for an investigation into such an offence is at one moment available but at the next unavailable because, by some happenstance, it suddenly carries the characteristics of an organized crime so that at that juncture one is forced to trek the OSCO trail even if none of the special powers under OSCO is required? These perambulations become complicated further by the thought that when discovery of information is required in the course of an investigation, the OSCO route will have to be taken whenever in fact there are reasonable grounds for suspecting that the offence under investigation is an OSCO offence, even though the investigator did not realize it. I take that idea from a phrase in the applicants’ skeleton argument which states that: “On [22 May 2007], even if they did not realize it, the ICAC officers were investigating into the proceeds of ‘organized crime’ … [or] into the proceeds of a specified offence”; and from the precondition to orders under sections 3, 4 and 5 of OSCO that requires, in each instance, that ‘there are reasonable grounds for suspecting that the organized crime under investigation has been committed.’[52] 61.The analysis thus far illustrates not only that the legislature has at all times intended the ICAC to have its own special powers of investigation but also the impractical consequence of the proposition that law enforcement agencies not only may utilize OSCO for particular advantageous purposes, but that they are bound to do so in any investigation of a matter that falls within the definition of “organized crime” or “specified offence”. 62.The proposition posed by the applicants and endorsed by the judge below, touches not only upon the role of the ICAC investigative process, but upon the investigative processes of all law enforcement agencies in this jurisdiction. In my judgment, OSCO was intended to provide useful investigative tools in connection with organized crime which might not otherwise be available, but which, whenutilised, are subject to rigid safeguards. That is an intention quite different from demanding a mode of investigation in any case falling within the definition of ‘organized crime’. To demand an OSCO application in the case of every suspected OSCO offence would lead to consequences at odds with effective law enforcement and, in my view, common sense. It would mean that all investigations by the police, the Customs and Excise authorities, as well as by immigration officers, let alone the ICAC, would be circumscribed by the requirements of OSCO whenever it so happened – as easily it might, and as it might at any stage of an investigation – that the investigation is, or had become, one connected with the activities of a particular triad society, or was a Schedule 1 offence related to the activities of two or more persons associated for the purpose of committing two or more acts, each of which was a Schedule 1 offence. I am satisfied that that can never have been intended. If it is open to a law enforcement agency to use an OSCO tool but it chooses not to do so and chooses, instead, to use a prescribed investigative tool that is easier, or even less effective, then so be it: that is the choice the legislature intended. 63.There are a number of OSCO investigative tools, unavailable to the police under the aegis of other statutes, which may in the course of a police investigation prove sufficiently attractive to drive them to take the OSCO path. But for the provisions of OSCO, the police in the normal course of events do not have at their disposal a provision along the lines of the tipping off provision which is section 7 of OSCO. That does not mean that whenever they wish to avail themselves of that provision they may use it, because not only does the offence in question have to be an organized crime or a specified offence but it is unlikely that a section 3, 4 or 5 order will be obtained for just any offence within those categories, no matter how trivial. Section 5(8), as we have seen,[53] provides for search warrants in the case of journalistic material, a power rarely otherwise available. Section 4 of OSCO furnishes a weapon by which material outside the jurisdiction may be the subject of a production order, a useful tool not otherwise available save, perhaps, by instruments such as letters of request. That means that if such material is sought it may, subject to the conditions precedent set by OSCO, be obtained under OSCO or under such other statutory provision that might exist to that end. That is a far cry from requiring the police to engage the search powers of OSCO whenever an offence, which happens also to be an OSCO or specified offence, raises its head in the course of an investigation. And if that is the position in the case of police powers of investigation, as clearly it is, e fortiori is it the position in the case of the ICAC to whom has been entrusted a range of investigative powers, as well as the right to apply for confiscation and restraining orders, quite similar to those conferred by OSCO. 64.Mr Dykes argued that to use ICACO (or, it must follow, POBO) in circumstances where OSCO provides an innocent third party with greater protection is a prohibited device, since established principle prohibits evasion of statutory intention. This, with respect, takes the matter no further because it begs the question: What, in this instance, was the statutory intention? In support of his argument, he relies on a decision of the House of Lords in R v J[54], a case that concerned itself with two provisions within the same statute: one, a provision creating the offence of unlawful sexual intercourse with a girl under 16, which carried with it a twelve month time limit for prosecution; the other, creating the offence of indecent assault, which carried no such time limit. The complaint having been made well beyond twelve months after the acts in question, the prosecutor chose to proceed upon charges of indecent assault. It was successfully contended on behalf of the defendant that this was an impermissible device to circumvent the intention of the legislature. Mr Dykes relies in particular upon passages in one of their Lordships’ judgment which points to a prohibition against the Crown doing indirectly what it is forbidden to do directly[55], and that to permit the course taken in that case would be an insult to Parliament’s intention in enacting the statutory time limit.[56] However, as Lord Bingham said: “Authority on the application of other statutes, differently expressed, is of limited assistance in resolving the problem of this kind.”[57] An examination of the case reveals that the construction for which the Crown contended before their Lordship’s was one that would have rendered a time limit enacted by the legislature nugatory, for the same set of facts would often constitute both offences and, upon that construction, the time limitation could simply be avoided by choosing to prosecute under one section rather than another. 65.The analogy is, in my opinion, not a good one. We are concerned here not with two provisions within the same enactment but with the existence of several ordinances with some of the impugned provisions being enacted later than those which are said must prevail and with no incompatibility demonstrated between these various instruments. It cannot, in my judgment, correctly be said that the availability of a choice by the ICAC to use the investigative provisions of ICACO or POBO where an organized crime or specified offence rears its head, renders provisions of OSCO nugatory in their intended effect. It is simply that the regimes are different, and that the OSCO provisions are available for use subject to specific protections when it is decided to use them. The same answer holds good, in my opinion, in relation to the suggestion that OSCO is specific and ICACO or POBO general: that suggestion is but a variation of the same theme. ICACO and POBO are specific enactments designed for the investigation of corruption. The fact that warrants are available under those instruments in circumstances less circumscribed than in OSCO does not render the one power general and the other specific so as to make the one subservient to the other. They sit side by side, to be used as the investigator wishes, so long as the conditions precedent are met for such application as may be made. 66.The construction for which the applicants press may, as Mr McCoy correctly suggested, further be tested by ascertaining the practical impact of that construction by reference to certain Ordinances enacted since OSCO, which contain their own search warrant provisions. He offers several dramatic, but wholly valid, examples. One is the Biological Weapons Ordinance, Cap. 491, which makes it an offence for any person to develop, produce, stockpile, acquire or retain biological agents, save in quantities that are justified for prophylactic or other peaceful purposes, or weapons designed to use biological agents for hostile purposes. Section 5 of that Ordinance empowers the magistrate, once satisfied by information on oath that there are reasonable grounds for suspecting that such an offence has been or is about to be committed, to grant a search warrant to enter any premises named in the warrant, to inspect anydocument found there, to take copies, and to seize and detain any such document in connection with which the officer has reasonable grounds to suspect that an offence has been or is about to be committed or which contains evidence that an offence has been committed. There is no qualification directed at the premises of, or documents in the hands of, innocent third parties. One does not have to be over-imaginative to perceive an investigation into such an offence that reveals facts that might render it an organized crime, as defined by OSCO. I do not believe that any sensible construction of OSCO would require the police in such circumstances to abandon the straightforward search warrant power of section 5 of the Biological Weapons Ordinance, and to engage the complex provisions of OSCO. Yet that, so it seems to me, would be the consequence of upholding the judgment of the court below. Conclusion 67.Accordingly, I would allow this appeal and set aside the order of the judge below that quashed the decision of the magistrate to issue the warrants. 68.This does not, however, finally dispose of the case. That is because there was a further aspect to the application for judicial review in respect of which leave was given, namely, the contention of the applicants that the warrants “were also invalid because the magistrate failed to take steps to ensure that when the warrants were executed, any material protected by [legal professional privilege] was not made the subject of scrutiny.”[58] The argument here was that it was incumbent upon the magistrate to impose conditions for the execution of the warrants, which he failed to do and that that failure rendered the warrants invalid. This was an argument that was not dealt with by the Saunders J. Given his conclusion as to the overriding effect of OSCO, the issue with which this judgment is solely concerned, it was unnecessary, strictly speaking, for him to deal with it. Indeed, we were told that although this “conditions” issue was addressed in writing in the skeleton arguments, it was not the subject of oral submissions because there was at the time pending the decision of this Court in Rmbsa Corporate Services Ltd & Anor v Secretary for Justice,[59] another appeal concerning search warrants, and it was thought that the decision in that appeal would have a direct bearing on the issue. It is agreed that the present judicial review cannot finally be resolved without determination of that second issue, and it is agreed also that it would be more appropriate for it now to be adjudicated at First Instance, rather than for the matter to be argued for the first time at this appellate stage. The issue is complex, and not, I think, determined for the purpose of the present case by the judgment in Rmbsa. For reasons to which I have alluded at the outset of this judgment,[60] this appeal was set down as a matter of urgency and such written material as was presented to the Court on this second and important issue, was by no means as well researched or presented as would have been the case with the benefit of more time. Given the importance and complexity of the issue, its state of preparation at this stage, and the fact that it has not been orally argued before Saunders J or addressed in the judgment below, the most appropriate course, having quashed the order of the court below, would be to remit it to that court for determination of this outstanding issue. 69.There is a cross-appeal in relation to an order of Saunders J that related to the retention by the ICAC of certain documents not covered by the warrants. He held that the ICAC were entitled to retain them, a decision which the applicants wish to contest on appeal. Mr Dykes recognizes, however, that a determination of that issue on appeal would more appropriately await the determination by the First Instance judge of the outstanding issues and, accordingly, he has consented to withdraw the cross-appeal in the event that this appeal goes against the applicants, without prejudice, however, to a revival of the cross-appeal if and when appropriate. 70.I would therefore:
Hon A Cheung J: 71.I agree. Hon Ma CJHC: 72.Accordingly, it is ordered that:-
Mr Philip Dykes SC and Mr Hectar Pun instructed by M/s Philip K.H. Wong, Kennedy Y.H. Wong & Co. for the Applicants. Mr Gerard McCoy SC and Mr Alex Lee, SADPP of Department of Justice for the Respondent [1] judgment, paras 65 to 67. [2] paras 76 and 79. [3] s 3(4)(d). [4] sections 3(11) and (12). [5] section 4(1). [6] section 4 (2). [7] section 2 (1). [8] para [12] above. [9] section 4 (4) (c) (ii). [10] section (4) (d). [11] O.116, r.7. [12] section 5(3) (a) and (b). [13] section 5(5). [14] section 83, Cap. 1. [15] section 3. [16] section 4. [17] section 10. [18] section 9(2). [19] section 9(1). [20] section 12AA. [21] section 14C. [22] section 14C(3B). [23] section 13A. [24] section 13. [25] section 14(1). [26] section 15(3). [27] section 17(2). [28] section 30. [29] section 17(1B). [30] section 5(2). [31] section 50 Police Force Ordinance, Cap. 232. [32] see McWalters Bribery and Corruption Law in Hong Kong, p. 477. [33] page 478. [34] section 18. [35] Part II of OSCO is that Part that confers powers of investigation, and provisions ancillary thereto: sections 3 to 7 inclusive. [36] (1988) 42 CCC (3rd) 174. [37] section 443(1)(a). [38] at 176. [39] judgment, para 66. [40] at 179. [41] at 380. [42] at 180. [43] [1990] 2 SCR 264. [44] [1981] 1 HKLR 534. [45] at 537. [46] para [8] above. [47] section 13. [48] section 13A. [49] Prevention of Bribery (Miscellaneous Provisions) Ordinance No. 48 of 1996. [50] section 14. [51] section 3(4)(d)(i) OSCO. [52] sections 3(4)(a); 4(4)(a); and 5(3)(a). [53] para [28] above. [54] [2005] 1 AC 562. [55] para 63. [56] para 64. [57] para 19. [58] para 62, Notice of Application for Leave. [59] CACV 327 of 2006; judgment 14 February 2008, unreported. [60] para [8] above. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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