Rmbsa Corporate Services Ltd and Another v. Secretary for Justice and Another

CACV 327/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 327 of 2006

(ON APPEAL FROM HCAL NO. 57 OF 2006)

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Before: Hon Ma CJHC, Stock JA and Yeung JA in Court

Date of Hearing: 25 April 2008

Date of Judgment: 25 April 2008

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1.On 14 February 2008, we dismissed this appeal which concerned the validity of a search warrant that authorized the search of a corporate service provider in premises also occupied by a foreign law firm.  

2.By notice of motion, the applicants seek a certificate pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 for the following suggested points of law of great and general importance:

(1)    When a magistrate is satisfied that there appears to be grounds for issuing a search warrant to enter, search for, seize, and retain things found on private premises that are reasonably suspected to be evidence of an offence, but at the same time reasonably apprehends that during the search the executing officers may come across items subject to Legal Professional Privilege (“LPP”), does the magistrate have a duty to attach protective conditions to the search warrant in order to minimize the risk against the examination and seizure of items subject to LPP?

(2)    If the answer to (1) is ‘Yes’, does the failure of the magistrate to attach such protective conditions to a warrant he issues mean that such warrant is invalid?

(3)    If the answer to (2) is ‘Yes’, does the fact that the warrant was executed in a manner that was consistent with the protective conditions appropriate to the facts of the case, validate the warrant retrospectively, or does the manner of such execution in these circumstances go only to the question of the Court exercising a discretion, if there is any, to order the return of all things seized under authority of the warrant?

(4)    In deciding whether to issue a search warrant that authorizes the search of premises where the magistrate reasonably apprehends that items subject to LPP will be found, does a magistrate have first to be satisfied that there exists no other reasonable alternative to obtaining the evidence sought before issuing the warrant?

3.We do not think that these questions properly arise in the context of this particular case.  The records sought were not ones that prima facie appeared to be covered by legal professional privilege and indeed we said at paragraph 46 of our judgment.

“It is not necessary for the purpose of this case to decide whether the conditions for which [the applicants] contend would have been necessary had a warrant authorized a search of practice papers or had it been known or believed on reasonable grounds that the material sought was subject to legal professional privilege, but assuming for the sake of argument that that were so, that is not the present situation….”

4.Accordingly, the motion is refused.

Mr Philip Dykes, SC and Mr Dennis W.H. Kwok, instructed by Messrs Jonathan Rostron for A1 and A2

Mr Gerard McCoy SC, Mr Wayne Walsh, Ag. Deputy Law Officer (MLA) and Mr Alex Lee, SADPP, instructed by Secretary for Justice for R1 and R2