Philip K. H. Wong, Kennedy Y.H. Wong & Co (A Firm of Solicitors) and Another v. The Commissioner of the Independent Commission Against Corruption

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)

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BETWEEN

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and

CACV 272/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 272 OF 2008

(ON APPEAL FROM HCAL NO. 70 OF 2007)

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BETWEEN

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Before: Hon Stock VP, A Cheung J and Wright J in Court

Date of written submissions:

for Applicant: 1 September 2009
for Respondent: 31 August 2009

Date of Judgment: 2 October 2009

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J U D G M E N T

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Hon Stock VP:

1.On 26 August 2009 we handed down judgment in this case by which we allowed the appeal, and made various consequential orders, but said that we would hear counsel on the question whether the application for judicial review should be dismissed or whether the case should be remitted to the first instance judge for him to determine whether the documents were or were not covered by legal professional privilege.

2.The respondent asserts that there is no supervisory jurisdiction capable of being engaged by the court below in relation to any claim of privilege. Counsel for the applicants, on the other hand, argues that our latest judgment whilst validating the search warrant does not validate the detention of such documents as are in fact covered by legal professional privilege.

3.I prefer the logic of the applicant's argument. The decisions challenged by the notice of application for leave to apply for judicial review, in respect of which leave was given, include decisions of the Commissioner of the ICAC to seize as well as to detain documents and it is asserted that it is not open to the Commissioner to continue to detain documents that are in fact covered by legal professional privilege. Section 18 of the Independent Commission Against Corruption Ordinance provides that nothing in the Ordinance shall prejudice any claim to such privilege and it must be the case that where it is asserted in judicial review proceedings that a decision to detain documents is unlawful because the documents are in fact so covered, the court is empowered in those proceedings to examine the documents. That is what happened in Shun Tak Holdings Limited v Commissioner of Police [1994] 2 HKC 363. It is implicit in the arguments advanced by Mr McCoy SC for the respondent that, consequent upon this Court’s judgment as to the validity of the warrant, it is open to the respondent to unseal the documents and examine them without a determination of the contention that the documents are privileged. That cannot be right.

4.Accordingly, I would order that the issue be determined by the first instance judge at an early date fixed in accordance with counsel’s diaries. I would also make a costs order nisi that the costs occasioned by this Court’s request for these further submissions shall follow the determination of the privilege issue.

Hon A Cheung J:

5.I agree.

Hon Wright J:

6.I agree.

Hon Stock VP:

7.Accordingly, the case is remitted to the first instance judge to determine whether the documents in issue are covered by legal professional privilege, the hearing of that issue to be at an early date fixed in accordance with counsel’s diaries. There will be a costs order nisi that the costs occasioned by this Court’s request for further submissions shall follow the determination of this remaining privilege issue.

Mr Philip Dykes, SC and Mr Hectar Pun instructed by Messrs Philip K.H. Wong, Kennedy Y.H. Wong & Co. for the 1^st Applicant

Mr Gerard McCoy, SC, Mr Alex Lee, SADPP and Ms Betty Fu, PP of the Department of Justice, for the Respondent