Read the full judgment text of CACV 4/2008; CACV 272/2008 on BabelCite. This Court of Appeal judgment was delivered on 2 October 2009 before Stock VP, A Cheung J, Wright J.
Administrative law – judicial review – legal professional privilege – Independent Commission Against Corruption – search and seizure of documents – whether case should be remitted to first instance judge for determination of privilege claim. The applicants, a firm of solicitors (Philip K. H. Wong, Kennedy Y.H. Wong & Co.) and Philip (Nominees) Limited, brought judicial review proceedings (HCAL 70/2007) against the Commissioner of the Independent Commission Against Corruption, challenging the seizure and detention of documents under a search warrant. On 26 August 2009, the Court of Appeal (Stock VP, A Cheung J and Wright J) allowed the appeal and validated the search warrant, but reserved the question of whether the application should be dismissed or whether the privilege issue should be remitted to the first instance judge. The respondent asserted that there was no supervisory jurisdiction capable of being engaged by the court below in relation to any claim of privilege. The applicants argued that, while the warrant was valid, the detention of documents covered by legal professional privilege remained unlawful. The Court of Appeal preferred the applicants' argument, holding that under section 18 of the Independent Commission Against Corruption Ordinance nothing in the Ordinance prejudices any claim to legal professional privilege, and following Shun Tak Holdings Limited v Commissioner of Police [1994] 2 HKC 363, the court is empowered in judicial review proceedings to examine documents to determine a privilege claim. The Court rejected the respondent's contention that the documents could be unsealed and examined without a determination of the privilege issue. The case was remitted to the first instance judge to determine whether the documents in issue are covered by legal professional privilege, the hearing to be at an early date fixed in accordance with counsel's diaries. A costs order nisi was made that the costs occasioned by the Court of Appeal's request for further submissions shall follow the determination of the privilege issue.
Legal issues: Whether the case should be remitted to the first instance judge to determine whether seized documents are covered by legal professional privilege
Outcome: The case is remitted to the first instance judge to determine whether the documents in issue are covered by legal professional privilege.
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