2004 7月24日,廉署10多名調查人員到《信報》、《東方日報》、《太陽報》、《星島日報》、《蘋果日報》、《南華早報》及《大公報》等搜查,主要集中搜查及詢問曾處理過「黃創光秘書被指遭廉署非法禁錮,要申請人身保護令一案」內庭聆訊的記者。事件引起多間報館不滿,指廉署行動妨礙新聞自由,而新聞工作者聯會及香港報業公會亦召開緊急會議,認為廉署行動粗暴。
其後《星島日報》入稟高等法院,申請撤銷廉署的搜查令。而廉政專員黃鴻超稍後主動約見報業公會,解釋廉署搜查報館的行動。直至8月10日,法庭裁定《星島日報》獲勝訴。
廉政公署在七月底涉嫌不按正常程序向高院申請十四張手令,搜查七間報館及多名記者寓所,取去新聞材料。其中被搜查的《星島日報》不滿廉署做法,於是向高院提出申請,要求撤銷有關手令。高院法官夏正民在8月10日裁定,廉署申請手令搜查報館在事實和法理上都犯錯,認為廉署可以採取較溫和的手法,引用《釋義及通則條例》第八十四條,要求報館交出新聞材料,同樣可達到調查目的,因為申請搜查報館的手令會嚴重侵犯新聞自由,法庭要確保這種程序不會被濫用,因此針對《星島》及其記者寓所的兩張手令應被撤銷,《星島》可取回被檢去的新聞材料。《星島》及傳媒組織均對判決表示歡迎,認為是新聞自由的一項勝利。
HCMP 1833/2004
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO.1833 OF 2004
---------------------
BETWEEN
SO WING
KEUNG Applicant
AND
SING TAO LIMITED 1st Respondent
HUS HIU
YEE 2nd Respondent
----------------------
Coram: Hon Hartmann J in Court
Dates of Hearing: 2 and 4 August 2004
Date of Handing Down Judgment: 10 August 2004
-------------------------
J U D G M E N T
-------------------------
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.
(M.J.
Hartmann)
Judge of
the Court of First Instance,
High Court
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
Remarks: Appeal by the applicant to Court of
Appeal. Appeal dismissed. Please refer to CACV245/2004.
廉署上訴。
【本報訊】廉署上月搜查七間報館,調查洩露法庭內庭資料的消息來源,被裁定非法,廉署昨上訴時指報館涉嫌違反《證人保護條例》,罪行嚴重,故廉署調查應凌駕記者保護消息來源權利,而法官認為記者毀滅資料機會較低,在事實及法律上均犯錯。 記者:梁偉強
原訟庭法官夏正民是於上月十日,判《星島日報》及其記者勝訴,撤銷廉署的搜查令,並批評廉署沒向簽發手令的石仲廉法官,提供英國案例作參考,廉署昨由資深大律師麥高義及薛偉成,在上訴庭上訴,指夏法官犯錯,亦無權撤銷手令。
呈所有案例是障礙
麥高義首先指出,在有關《釋義及通則條例》生效九年以來,撿取新聞材料的個案,只有三宗,執法部門作出申請,要符合不少條件,譬如由高級執法人員負責,不可就輕微罪行撿取新聞材料等,而法庭亦會嚴格審核申請,在新聞自由與打擊罪行之間,平衡公眾利益。
麥高義指涉案傳媒涉嫌違反《證人保護條例》,最高刑罰入獄十年,其報道既危害涉案證人的安全,亦影響別人參與有關計劃,罪行如此嚴重,廉署的調查便凌駕記者保護消息來源的權利。
麥高義又認為,廉署申請手令時,已將有關的上訴庭權威案例呈堂,其他的英國案例,均無約束性,要將所有案例呈堂,沒有大律師做得到,夏法官的要求,對業界是一大障礙。
麥高義又批評,夏法官應答辯人要求,查閱受公眾利益豁免權保障的廉署誓章,結果令答辯人由無變有,獲得爭拗理據,但新西蘭上訴庭早有案例,不接納法官這種做法。
對於夏法官指記者毀滅資料的機會較低,麥高義套用夏法官批評廉署的一句話,反指夏法官「在事實及法律上均犯錯」,並舉例說《星島日報》及《蘋果日報》,均沒合作交出關鍵資料,而廉署搜查《蘋果日報》,更獨缺該等資料,可見申請交出令,也無補於事。
麥高義又提及,涉案的《星島日報》記者,擔心前途受損,不肯披露消息來源,廉署申請搜查令,正好解決其兩難局面,聆訊今續。
上訴庭不同意夏法官所指,廉署要先提出證據,證明涉案新聞材料有確實風險或很大機會被毁。馬道立法官引用法例字眼,強調只要調查可能嚴重受損,法庭便可頒發手令。他又認為倘若廉署先申請資料交出令,反而會打草驚蛇,令向新聞機構報料者知所警覺,因而妨礙調查。
馬法官解釋,沒有法例禁止新聞機構接到交出令的申請通知時,不能向其他人披露,然而若以此為頒發手令的理由,那兩級制度便形同虛設:差不多每次執法人員企圖要找出報館的資料來源,根本不會考慮通知報館,要求交出資料,便可直接引用這個案例,單方面申請手令。
事實上,保護消息來源對新聞界非常重要,尤其是遇上一些重大事件,例如政府官員貪污或瀆職,若新聞界無法保護消息來源,執法人員可以隨時搜查傳媒機構,試
問知情者又怎敢向傳媒披露真相?新聞界無法監察政府、伸張公義,這又是否公眾之福?上訴庭的判例為廉署搜查傳媒機構大開方便之門,也難怪新聞界憂心如焚, 紛紛要求修改法例,限制執法人員搜查權,以免新聞自由受損。
案件編號: CACV245/2004
ON APPEAL FROM HCMP NO. 1833 OF
2004)
_________________________
BETWEEN
|
SO WING KEUNG
|
Applicant
|
|
and
|
|
|
SING TAO LIMITED
|
1st Respondent
|
|
HSU HIU YEE
|
2nd Respondent
|
_________________________
Before: Hon Ma CJHC, Stuart-Moore V-P & Stock JA
in Court
Dates of Hearing: 8, 9 and 13 September 2004
Date of Handing Down Judgment: 11 October 2004
______________
J U D G M E
N T
______________
Hon Ma CJHC :
Introduction
1. The present appeal, listed and for the most part
treated by the parties as a civil appeal, is from the decision of
Hartmann J handed down on 10 August 2004 in which he set aside
the ex parte decision of Stone J made on 23 July 2004 issuing
search warrants to the Applicant allowing the Independent Commission Against
Corruption (“the ICAC”) to search the business premises of the
1st Respondent (Sing Tao Limited) and the home of the 2nd Respondent,
a news editor of Sing Tao Daily. Costs were awarded to the Respondents.
The application to Stone J was made under section 85 in Part XII
of the Interpretation and General Clauses Ordinance, Cap.1 (“IGCO”). It
was only the third time that such an application has been made in Hong Kong.
The Applicant, So Wing Keung, is an investigator with the ICAC.
In this judgment, I shall simply refer to the Applicant as the ICAC.
2. In order to understand the issues arising in this
appeal, it is desirable first to set out the factual background. I take
this largely from the judgment of Hartmann J, but would add some
observations of my own.
3. The story begins on 9 July 2004 when a
number of persons were arrested by the ICAC for suspected corruption offences
under the Prevention of Bribery Ordinance, Cap.201 (“POBO”). One of the
arrested persons agreed to assist the ICAC. This person was then put into
a witness protection programme. Like the Judge, I shall hereinafter refer
to this person simply as the Participant.
4. The reason for a person like the Participant to be put
into a programme is obvious : - he is in the most vulnerable and
dangerous of positions. It is not an exaggeration to say that persons
protected under the witness protection programme face not just the possibility
(and often the probability) of imminent danger to their well-being and life,
but this may continue perhaps for the rest of their life. This should not
be lost sight of. The witness protection programme is governed by
statute, namely the Witness Protection Ordinance, Cap.564 (“WPO”). The
following provisions of this Ordinance are of note : -
(1) Section 3 establishes the witness protection programme under which
the approving authority “arranges for or provides protection and other
assistance for witnesses whose personal safety or well-being may be at
risk as a result of being witnesses.” (emphasis added).
(2) In deciding whether or not a person
(referred to in the Ordinance as a participant) is to be included in the
witness protection programme, the approving authority must take into account
the perceived danger to the witness : - see section 4(3).
In other words, all participants in the witness protection programme share at
least one characteristic : a perceived danger to their well-being.
(3) As part of the programme, the
participant may have to assume a new identity : - see
section 8(2). Specific provisions exist as to how the legal rights
and obligations of a participant who has assumed a new identity are to be dealt
with : - see section 9.
(4) Heavy penalties (understandably and
necessarily) exist against any person who, without lawful authority or
reasonable excuse, discloses 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 : - see section 17(1). A contravention of this section
attracts a maximum imprisonment of 10 years. Conviction can only be
on indictment.
5. As can be seen from the provisions of WPO set out
above and as the Judge said, it “is paramount therefore that the identity of a
person in [the witness protection programme] is not allowed to pass into the
public domain”. Sadly, this is precisely what has happened in the present
case and the instruments by which this was achieved were several newspapers,
among them the 1st Respondent. By their actions (on which I shall
presently elaborate), the Participant’s name was disclosed to the world at
large and thus this person’s well-being could thereby well have been put in
jeopardy. This apart, and speaking generally, the publication of the name
of a participant causes the risk of undermining proceedings in train, as well
as a danger of debilitating the future efficacy of witness protection
schemes. As Mr Gerard McCoy, SC (for the Applicant) asked
rhetorically : how could such a thing have happened?
6. The Participant was placed in a witness protection
programme on 13 July 2004. That evening, lawyers acting on the
instructions of people purporting to have spoken to the Participant, sought
access to the Participant. When this was denied, on the following day, an
application for a writ of habeas corpus was made to the Court of First Instance
seeking the Participant’s release from ICAC custody. This application was
heard by Hartmann J on 16 July 2004. He dismissed the
application “being satisfied that the Participant was not in any form of
custody nor was [the Participant] being in any way held against [the
Participant’s] will”. A question mark thus arose in relation to the
motives of those persons who had purportedly instigated the habeas corpus
proceedings.
7. Details of the habeas corpus proceedings (which at one
stage involved the Court of Appeal) were reported in the press, this
notwithstanding that many of the relevant hearings were either in Chambers or
in camera. As far as the 1st Respondent was concerned, newspaper
reports surfaced on each of 14, 15 and 16 July 2004. We have
had the relevant reports in the Sing Tao Daily included in the appeal bundle
before us. Apart from identifying the relevant company which was at the
centre of the investigation by the ICAC, the Participant was specifically
named. Her full name was given. Not only that, the Participant’s
age, position within the company, area of residence and even the name of her
friend were disclosed, as was the fact that the Participant was in a witness protection
programme. The irony of these disclosures is that the article in the
16 July 2004 edition actually referred to the bar against disclosure
of the name of a person in the witness protection programme.
8. The Court of Appeal, to which one aspect in the habeas
corpus proceedings was referred, was so concerned about the press coverage to
which I have referred that it convened a hearing to convey its concern and to
hear counsel. Having heard counsel, the Court requested the Secretary for
Justice to look into the matter and consider what appropriate action was
merited. The next day, further reports appeared in the press which
repeated the fact that the Participant was in the witness protection programme.
9. The result of this were the investigations of the ICAC
that form the immediate background to the search warrants issued by
Stone J. Two suggested arrestable offences were involved.
Hartmann J identified the offences and also said as follows : -
“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.”
10. The following points arising from these passages are
of note : -
(1) The two suggested offences
identified by the Judge - which I shall call the section 17
offence and the conspiracy to pervert the course of justice – are connected to one another. Aspects of the conspiracy to pervert the course of justice
offence included the leaking of information concerning the Participant to the
press, the motives for this and the persons responsible for it. These were precisely those aspects which the Judge regarded
as being what the ICAC considered necessary to ascertain in relation to the
section 17 offence.
(2) Both the Judge and Stone J regarded as extremely serious the possible use of habeas
corpus proceedings (and, I might add, of the press) for criminal ends.
(3) The concession by counsel for the
ICAC at the hearing before Stone J that the newspapers were not
complicit in the conspiracy to pervert the course of justice offence, meant
only that they were not suspected of “knowingly” being complicit. In
other words, they had been “unwittingly [to the newspapers, that is] used”.
11. With the above background, I now turn to the obtaining
of the search warrants by the ICAC from Stone J and the subsequent hearing
before Hartmann J.
The relevant statutory provisions
12. For the sake of convenience, I now set out some
statutory provisions and Rules of the High Court that will have to be considered
in this appeal.
13. Interpretation and General Clauses Ordinance, Cap.1
(“IGCO”)
“82. Meaning of ‘journalistic material’
(1)
Subject to subsection (2), in this Part ‘journalistic material’ (新聞材料) means any material acquired or
created for the purposes of journalism.
(2)
Material is only journalistic material for the purposes of this Part if it is
in the possession of a person who acquired or created it for the purposes of
journalism.
(3)
A person who receives material from someone who intends that the recipient
shall use it for the purposes of journalism is to be taken to have acquired it
for those purposes.
…..
84. Application for production order in respect of journalistic
material
(1)
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 an order
under subsection (2) in
relation to material which is known or suspected to be journalistic material.
(2)
If on an application under subsection (1) a judge is satisfied that the
conditions in subsection (3) are
fulfilled he may make an order that the person who appears to be in possession
of journalistic material specified in the application shall –
(a)
produce it to the applicant to take away; or
(b)
give the applicant access to it,
not later than the end of the period of 7 days from the
date of the order or the end of such longer period as the order may specify.
(3)
The conditions to be fulfilled for the purposes of subsection (2) are that –
(a)
there are reasonable grounds for believing –
(i) that an arrestable offence
has been committed;
(ii)
that there is material which consists of or includes material known or
suspected to be journalistic material on premises specified in the application;
(iii)
that the material is likely to be –
(A)
of substantial value to the investigation of the arrestable offence; or
(B)
relevant evidence in proceedings for the arrestable offence;
(b) but for section 83 the applicant would
be or could have been authorized under the provision mentioned in subsection (1) to enter onto the premises specified in the application
and to search the premises or a person found on the premises or to seize the
material specified in the application;
(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.
(4) An application for an order under
subsection (2) shall be made inter partes.
(5) Any person who without reasonable
cause fails to comply with an order made under subsection (2) commits an offence and is liable to a fine at level 6
and to imprisonment for 1 year.
85. Application for warrant to seize
journalistic material
(1) 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.
(2) An application for a warrant under
this section shall not be made unless it has been approved by a person
specified in Schedule 7 to be a directorate disciplined
officer.
(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.
(4) A warrant issued under subsection (3) shall not authorize any entry, search or seizure other
than such entry, search or seizure as, but for section 83, would be or could have been authorized under the
provision mentioned in subsection (1).
(5) The further conditions mentioned in
subsection (3)(a)(ii) are –
(a) that it is not practicable to
communicate with any person entitled to grant entry to the premises to which
the application relates;
(b) that while it might be practicable
to communicate with a person entitled to grant entry to the premises, it is not
practicable to communicate with any person entitled to grant access to the
material;
(c) that service of notice of an
application for an order under section 84(2) may seriously prejudice the
investigation.
(6) 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.
(7) Subsection (6) shall not apply where the judge is satisfied that there
may be serious prejudice to the investigation if the applicant is not permitted
to have immediate access to the material.
(8) Any person empowered by a warrant
issued under this section may –
(a) use such force as may be necessary
to enter the premises specified in the warrant;
(b) on the premises, seize such
material, including journalistic material, as may be found and as but for
section 83 he would be or could have been authorized under the provision
mentioned in subsection (1) to take possession of;
(c) detain for a reasonable period any
person found on the premises who may have such material in his possession or
under his control and who if not so detained may prejudice the purpose of the
search.
…..
87. Procedure in relation to sealed material
(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.
(3) If on an application under
subsection (1) the judge determines not to
grant an order under subsection (2), or where no application has
been made under subsection (1) within the period specified in
that subsection, the material may be unsealed.
(4) For the purpose of determining an
application under subsection (1) a judge may require the person
who seized the material to produce it to the judge for examination by him.
(5) An application for an order under
subsection (1) shall be made inter partes.
…..
89. Miscellaneous
(1) The costs of any application under
this Part and of anything done or to be done in pursuance of an order made
under it shall be at the discretion of the judge.
(2) For the avoidance of doubt, it is
declared that nothing in this Part shall be construed as requiring a judge to
make an order under this Part where he considers that, in all the circumstances
of the case, it would not be in the public interest to make that order.
(3) Unless a judge otherwise directs,
proceedings inter partes under this Part shall be held in open court.
(4) Rules of court may provide for the
practice and procedure applying to proceedings under this Part.”
14. High Court Ordinance, Cap.4 (“HCO”)
“13. Jurisdiction of Court of Appeal
(1)
The Court of Appeal shall be a superior court of record.
(2)
The civil jurisdiction of the Court of Appeal shall consist of –
(a)
appeals from any judgment or order of the Court of First Instance in any civil
cause or matter;
(b)
appeals under section 63 of the District Court Ordinance (Cap.336); and
(c)
any other jurisdiction conferred on it by any law.
(3)
The criminal jurisdiction of the Court of Appeal shall consist of –
(a)
appeals from the Court of First Instance or District Court under Part IV of the
Criminal Procedure Ordinance (Cap.221);
(aa) appeals from a judgment or order of the
Court of First Instance given or made in the exercise of the powers conferred
on it under section 21I(1) and relating to a criminal cause or matter;
(b)
the consideration of questions of law reserved under section 81(1) of the
Criminal Procedure Ordinance (Cap.221);
(c)
the consideration of –
(i) applications by the
Secretary for Justice for the review of any sentence under section 81A(1)
of the Criminal Procedure Ordinance (Cap.221);
(ii)
references by the Secretary for Justice of questions of law under
section 81D of the Criminal Procedure Ordinance (Cap.221);
(d)
appeals by way of case stated from the District Court under section 84 of the District Court Ordinance (Cap.336); and
(e)
any other jurisdiction conferred on it by any law.
(4)
For the purposes of and incidental to –
(a)
the hearing and determination of any appeal to the Court of Appeal; and
(b)
the amendment, execution and enforcement of any judgment or order made on such
an appeal,
the Court of Appeal shall have all the authority and
jurisdiction of the court or tribunal from which the appeal was brought.
(5)
Any provision in this or any other Ordinance which authorizes or requires the
taking of any steps for the execution or enforcement of a judgment or order of
the Court of First Instance applies in relation to a judgment or order of the
Court of Appeal as it applies in relation to a judgment or order of the Court
of First Instance.”
15. Independent Commission Against Corruption
Ordinance, Cap.204 (“ICACO”)
“10. Power of arrest
(2)
Where, during an investigation by the Commission of a suspected offence under
the Prevention of Bribery Ordinance (Cap.201) or of a suspected offence under the
Elections (Corrupt and Illegal Conduct) Ordinance (Cap.554), another offence is
disclosed, any such officer may without warrant arrest a person if he
reasonably suspects that such person is guilty of that other offence and –
(a)
he reasonably suspects that such other offence was connected with, or that
either directly or indirectly its commission was facilitated by, the suspected
offence under the Prevention of Bribery Ordinance (Cap.201) or the suspected
offence under the Elections (Corrupt and Illegal Conduct) Ordinance (Cap.554)
as the case may be; or
(b)
the other offence is one which is specified for the purposes of this subsection
in subsection (5).
…..
(3)
Any such officer –
(a)
may use such force as is reasonable in the circumstances in effecting an arrest
under subsection (1) or (2); and
(b)
may, for the purpose of effecting such an arrest, enter and search any premises
or place if he has reason to believe that there is in the premises or place a
person who is to be so arrested.
(4)
No premises or place shall be entered under subsection (3) unless the officer has first stated that he is an
officer and the purpose for which he seeks entry and produced his warrant card
to any person requesting its production, but subject as aforesaid any such
officer may enter any such premises or place by force, if necessary.
(5)
The following offences are specified for the purposes of subsection (2) –
(a)
the offence of perverting or obstructing the course of justice;
(aa)……”
16. Witness Protection Ordinance, Cap.564 (“WPO”)
“17. Offences
(1)
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.
(2)
…
(3)
…
(4)
A person who contravenes –
(a)
subsection (1) commits an offence and is liable on conviction on
indictment to imprisonment for 10 years;
(b)
…”
17. Rules of the High Court, Cap.4
O.1, r.2(3)
“(3)
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.”
O.32, r.6
“6.
The Court may set aside an order made ex parte.”
O.118, r.1
“Interpretation (O.118, r.1)
1. In this Order ‘the
Ordinance’ (條例)
means the Interpretation and General Clauses Ordinance (Cap.1), and a section
referred to by number means the section so numbered in the Ordinance,”
O.118, r.2
“Application (O.118, r.2)
2. This Order applies to proceedings under sections 84, 85 and 87.”
O.118, r.3
“Proceedings under section 84 (O.118,
r.3)
3.(1) An application for an order under
section 84 shall be made by originating summons in the expedited form
supported by affidavit.
(2) The
affidavit shall contain the evidence relied on to show that the conditions set
out in section 84(3) have
been fulfilled.
(3) Unless
the court otherwise directs, the affidavit may contain statements of
information or belief with the sources and grounds of such information or
belief.
(4) Notwithstanding Order 28, rule 1A, a copy of
the originating summons and affidavit shall be served on the respondent not
less than 3 clear days before the date fixed for the hearing of the
application.”
O.118, r.4
“Proceedings under section 85 (O.118,
r.4)
4.(1) An application for a warrant under section 85
shall be made ex parte by originating summons supported by affidavit.
(2) The
affidavit shall –
(a)
state which of the grounds set out in section 85 is relied on;
(b)
contain the evidence relied on in support of those grounds; and
(c)
specify the name, rank, title and address of the officer who has approved the
making of the application.
(3) Unless
the court otherwise directs, the affidavit may contain statements of
information or belief with the sources and grounds of such information or
belief.
(4) All applications under section 85 shall be
heard in chambers.”
O.118, r.5
“Proceedings under section 87 (O.118, r.5)
5.(1) An application for an order under
section 87 shall be made by summons which may be supported by affidavit.
(2) The
summons shall set out the grounds on which the applicant relies.
(3) A copy of
the summons and affidavit (if any) shall be served on the person named in the
warrant pursuant to section 86(1)(a)
by delivering it to him not less than 3 clear days before the date fixed for the hearing of the
summons.
(4) Unless the court otherwise directs, a party
wishing to adduce evidence shall do so by affidavit, and such affidavit may
contain statements of information or belief with the sources and grounds of
such information or belief.”
The obtaining of the search warrants and the
hearing before Stone J
18. On 23 July 2004, two search warrants in the
following terms were issued by Stone J relating to both
Respondents : -
“IT IS ORDERED THAT :
(1)
You and any other investigating officer of the Independent Commission Against
Corruption are authorized to enter, by force if necessary, the specified
premises or place namely :
offices of …..
And to search for and seize any photographs, negatives, documents,
articles or objects, or any records of data processed or stored in a computer
or other electronic devices in relation to the articles published in ‘Sing Tao Daily’
dated 14.7.2004, 15.7.2004 and 16.7.2004, which is material that consists of or
includes journalistic material which is likely to be of substantial value to
the investigation of arrestable offences, namely conspiracy to pervert the
course of public justice contrary to common law and unlawful disclosure of
information about the identity of a person who is a participant in the witness
protection programme contrary to section 17(1) of the Witness Protection
Ordinance, Cap.564, and which you have reason to believe to be or to contain
evidence of those offences.
(2)
It is a condition of this search warrant that any journalistic material seized
shall be sealed upon seizure and the sealed material be held until otherwise
authorized or required under section 87
of the Ordinance.
(3)
Any person from whom journalistic material is seized under this warrant or a
person who is an owner of such material may apply within 3 days of its
seizure under section 87 for the immediate return of such material.
Failure to so apply will result in the material being unsealed.”
19. The search warrants were issued following a hearing
before Stone J that stretched from 12:11 pm to 4:11 pm, with a
lunch break which he used to study the legislation and the papers. We
have read the transcript of the proceedings (although this has not been made
available to the parties). With respect to Stone J, he conducted an
extremely thorough examination of the ICAC’s application, frequently asking
very searching questions and demonstrating the need to tread very carefully
given the nature of the application before him (search warrants to search
journalists’ premises and seize journalistic material). Hartmann J
described the hearing before Stone J as being “robust and lengthy”, “long
and arduous”. In the end, he issued the search warrants despite being “drawn
reluctantly” to this determination, but would not allow the ICAC immediate
access to any materials that might be seized thereunder. He ordered that
any seized materials be sealed in compliance with section 85(6) IGCO.
20. I should mention that the basis for the ICAC’s application
for the search warrants was contained in an affirmation of the Applicant, who,
as identified above, was an investigator with the ICAC. This affirmation,
running to some 13 pages and 36 paragraphs, was described by
Hartmann J as “certainly no standard format document” and “painstaking in
its detail”. It was not in the agreed bundle used in the present appeal
since, according to the Applicant, public interest immunity attached to
it. For reasons that I will elaborate on below, this Court has read the
affirmation for itself even though the parties could not refer to it (and
in the Respondents’ case, they had not even seen it).
21. On 24 July 2004, the two search warrants
were executed by the ICAC on the relevant premises and various materials were seized
and, following Stone J’s direction to this effect, sealed. We have
been told that execution followed a refusal voluntarily to hand over the
material. It was subsequent to this search and seizure that the
Respondents moved to set aside the search warrants.
The hearing before Hartmann J and the judgment
below
22. By a summons dated 27 July 2004, within
three days of the seizure, the Respondents applied under RHC O.32 r.6, O.118
r.5 and the Court’s inherent jurisdiction to set aside the search warrants and
for the return of the journalistic materials seized by the ICAC. The
grounds for setting aside were that the requirements under section 85(3)
and/or (5) had not been met. The grounds in support of the application
for the return of the seized materials (under section 87 IGCO) were that
(a) it was unnecessary for the ICAC to have proceeded under
section 85 IGCO (when a less intrusive way was open to them, namely an
application under section 84); and (b) the seized materials were
neither valuable nor relevant to the investigation of arrestable offences and
in the circumstances, it was not in the public interest that they should be
permitted to be used by the ICAC.
23. The hearing of the application took place before
Hartmann J on 2 and 4 August 2004. In his judgment handed
down on 10 August 2004, he set aside the search warrants under O.32
r.6. In the light of this, he considered it unnecessary to make a
decision in relation to the application for the return of the materials under
section 87 IGCO.
24. The Judge arrived at this decision essentially for the
following reasons : -
(1) He held that he had the necessary
jurisdiction under O.32 r.6 to hear and determine the summons to set aside
Stone J’s issue of the search warrants. The Judge was of the view that the decision of Stone J to issue the warrants was an “order” in civil proceedings to which O.32
r.6 applied. In adopting this reasoning,
Hartmann J rejected the ICAC’s contention that as the issue of search warrants was a “criminal proceeding inherent to the criminal investigative
process”, that order had no application. The Judge was of the view that notwithstanding the fact
that proceedings governed by O.118 were criminal proceedings, the Rules of the
High Court (including therefore O.1 r.6) applied to such proceedings by reason
of O.1 r.2(3). He derived support in his view from the obiter remarks of
Keith JA in Apple Daily Ltd. v
Commissioner of the Independent Commission Against Corruption (No.2) [2000]
1 HKLRD 647, at 657A-658H. Neither of the other members of the court
(Chan CJHC and Nazareth VP) dealt with this point.
(2) Having assumed jurisdiction, the
Judge then examined the material before him to determine whether the
requirements of section 85 IGCO had been met. He had before him the affirmation that had been used by the
ICAC before Stone J even though, by reason of public
interest immunity, it could not be revealed to the Respondents. He also looked at the transcript of the hearing before
Stone J although the parties before him
did not. The Judge reached the conclusion
that on the materials before him, the ICAC had not made out a sufficient case
for search warrants to be issued under section 85 IGCO.
(3) In arriving at the conclusion that
the ICAC had not made out a case under section 85, the Judge referred to the requirements of that provision
and also to various legal principles.
He suggested 7 legal principles governing section 85 applications : -
“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.’”
(4) The Judge took the view that had
Stone J’s attention been drawn to the legal authorities that
contained these 7 suggested principles, it was highly
unlikely that he (Stone J) would have issued the search warrants.
The failure to draw Stone J’s attention to relevant authorities was
ascribed by the Judge to counsel for the ICAC. This was held by
Hartmann J to be a failure to make full and frank disclosure, although not
a deliberate one.
(5) On the facts, the Judge took the
view that it had simply not been demonstrated by the ICAC that there was a real
risk of the Respondents destroying the journalistic materials sought in the
investigation. This being the burden on the ICAC,
the Judge said, “I fail utterly to see how that was
demonstrated or could have been demonstrated”.
(6) In summary, the Judge said
this : -
“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.”
25. It is from this decision that the ICAC has appealed in
the present case. The appeal was, as I have already stated, marked as a
civil appeal.
The issues in the appeal
26. The issues for this Court’s determination arising from
the Notice of Appeal, Respondents’ Notice and counsel’s submissions, can be
identified as follows : -
(1) It was submitted by the Respondents
that this Court had no jurisdiction to entertain the present appeal because
this was not an appeal, it is said, from a judgment or order in a civil cause
or matter and because none of the situations specified under section 13(3) of the HCO which delineate the criminal jurisdiction
of this Court, applies. In order to resolve this question,
it is necessary to determine whether the proceedings before Hartmann J were civil, failing which whether section 13(3) of the HCO can confer jurisdiction. (Issue 1 : The
jurisdiction of this Court to hear the appeal).
(2) Mr Philip Dykes, SC (for the
Respondents) also submitted that the present appeal was in any event academic
and therefore should not be entertained for that reason as well. The
basis for this submission was that all the materials that were seized during
the searches made by the ICAC under the search warrants have now been made
available to them. Accordingly, Mr Dykes submitted, there is nothing
to be gained whichever way the present appeal was decided. (Issue 2 : Is the appeal
academic?)
(3) On the assumption that the Court of
Appeal had jurisdiction to hear the present appeal and that it was not academic
to do so, Mr McCoy argued that Hartmann J was wrong, both in law and
fact, to decide the matter as he did. In brief, the Judge had
erred :-
(a) By assuming jurisdiction to set
aside Stone J’s order of 23 July 2004 under O.32 r.6 when no such jurisdiction existed. (Issue 3 : Jurisdiction
to set aside under O.32 r.6 or the Court’s inherent jurisdiction).
(b) In any event on the facts by
holding that there was no justification for search warrants to be issued under
section 85 IGCO. (Issue 4 : Was
there justification to issue the search warrants in the present case?)
27. Although a number of sub-issues arose within these
issues, they are the main ones. I will now deal with them in turn.
Issue 1 : The jurisdiction of this Court to
hear the appeal
28. I have already mentioned the fact that the present
appeal was listed as a civil appeal. This was also how both parties
treated it when the Notice of Appeal and Respondents’ Notice was served.
However, the day before the hearing began on 8 September 2004,
Mr Dykes served a skeleton submission in which the jurisdiction of this
Court to hear the present appeal was questioned.
29. Mr Dykes’ arguments were
basically as follows : -
(1) Section 13(2) HCO sets out the jurisdiction of the Court of Appeal
to hear appeals in civil matters. As section 13(2)(a) states, the civil jurisdiction of the Court of
Appeal is to hear appeals from any judgment or order of the Court of First
Instance in any “civil cause or matter”. In order to determine whether or
not a judgment or order of the Court of First Instance was made in a civil
cause or matter, one had to look at the nature and substance of the matter
underlying the particular judgment or order under appeal. Reliance was
here placed on the decision of the Court of Appeal in Attorney General v Alick Au Shui-yuen [1992] 1 HKLR
88 and that of the English Court of Appeal inBonalumi v Secretary of State for the Home Department and another [1985]
1 All ER 797. Accordingly, if the nature and substance of the matter
underlying the decision sought to be appealed from, was criminal rather than
civil, then it was to the criminal jurisdiction of the Court of Appeal that one
had to look in order to found jurisdiction. The criminal jurisdiction of
the Court of Appeal is of course set out in section 13(3) of the HCO.
(2) The application made by the ICAC
for search warrants under section 85 of the IGCO were essentially
criminal proceedings. So were the proceedings before Hartmann J in
which the Respondents sought to set aside the issue of the search
warrants. Both proceedings concerned the investigation into alleged
crimes and were therefore quite clearly criminal in nature. Mr Dykes
referred to George Tan Soon-gin
v His Honour Judge Cameron and Another [1992] 1 HKLR 149 (Court of
Appeal) and [1992] 2 AC 205 (Judicial Committee of the Privy Council), where it
was held that an application for judicial review made in the context of
underlying criminal proceedings could not give rise to any appeal to the Court
of Appeal since it was not a civil cause or matter. He also referred to
the decision of the Canadian Supreme Court in Knox Contracting Ltd v The Queen (1990) 58 CCC 65, in which it
was held that proceedings for the issue of a search warrant were criminal in
nature.
(3) If he were correct in this analysis
so far, Mr Dykes submitted that the Court of Appeal simply had no
jurisdiction in the present case to entertain the appeal, and that remained the
case even if the Judge below himself assumed a jurisdiction which he did not
possess. Nothing in section 13(3) gave the Court the necessary
jurisdiction and, as the Court of Appeal was a creature of statute whose
jurisdiction was clearly set out in the HCO, the absence of an express
jurisdiction was fatal.
30. Mr McCoy countered these arguments in the following
way : -
(1) Generally, where the Court of First
Instance has acted without jurisdiction, the Court of Appeal had an inherent
jurisdiction to set aside the judgment or decision below. This inherent jurisdiction existed by reason of the Court
of Appeal being a superior court of record (section 13(1) HCO). It had jurisdiction by reason also
of section 13(3)(e) HCO. Mr McCoy
relied on R v Stuchiner [1997]
2 HKC 271 as an example where this inherent jurisdiction was utilized by the
Court of Appeal. There, Litton VP referred to this court as being “a
superior court of unlimited jurisdiction” : - see 274F. Killenny Ltd & Ors v Attorney General [1996]
1 HKC 30 was also cited to us as an example where the Court of Appeal set aside
the order of the court below by reason of an absence of jurisdiction.
(2) Next, in order to support his
contention that the present appeal arose from a decision of the Court of First
Instance in a civil cause or matter, Mr McCoy approached the matter from
the opposite end. He tried to persuade us that as the present proceedings
were not criminal proceedings, they must therefore have
involved a civil cause or matter. Here he relied on various speeches in
the decision of the House of Lords in R
(McCann and others) v Crown Court at Manchester and another [2003] 1
AC 787. It was argued that in order for criminal proceedings to exist,
there had first to be a formal accusation of a breach of criminal law (in other
words, an information laid or a charge preferred) with the consequence that, if
the breach was proved and the proceedings prosecuted to their conclusion, penal
consequences would result : - see the speeches of Lord Steyn at 808
(paragraph 22), Lord Hope of Craighead at 816-7 (paragraph 54),
Lord Hutton at 828-830 (paragraph 93-95).
(3) Applying this test, Mr McCoy
accordingly submitted that the section 85 application for a search warrant
involved civil, not criminal, proceedings. There was at that stage no
formal accusation of a breach of the criminal law (in other words, no charges
were laid) and the conclusion of the section 85 proceedings did not (and
could not) result in the conviction of anyone or the imposition of penal
consequences.
(4) Reference was also made to the
obiter observations of Keith JA in Apple Daily Ltd at 658C where he
said : -
“But as a matter of principle, I would be surprised if an
application for a warrant, whose purpose was to render lawful acts which would
otherwise amount to civil wrongs, i.e. trespass to land
and detinue, would be regarded as an application made in criminal proceedings, simply
because the execution of the warrant might result in the discovery of materials
which might be used in a criminal prosecution.”
These
observations were made to reinforce the view that O.32 r.6 was an available
procedure to set aside the search warrant. This aspect will of course be dealt with under Issue 3.
31. In my view, this Court does not have the jurisdiction
to hear the present appeal : -
(1) The jurisdiction of the Court of
Appeal to hear both civil and criminal appeals is circumscribed by the
provisions of section 13 HCO. There is no inherent jurisdiction to hear appeals outside
of what is prescribed by statute. This is by no means a startling
proposition. In George Tan Soon-gin, Silke VP said at 177, “We are
a creature of Statute and we are bound within the confines of the appropriate
legislation”. In the same case in the Judicial Committee of the Privy
Council, Lord Mustill, delivering the opinion of the Board, said at 217A-B,
“The Court of Appeal in Hong Kong has both a civil and a criminal jurisdiction,
each defined and limited by section 3 of the Supreme Court Ordinance [now
the HCO]”. This reflects the position in England as well. We were
referred by Mr Dykes to the decision of the House of Lords in In re Racal Communications Ltd [1981]
AC 374. Further, in one of the authorities provided to us by
Mr McCoy, Taylor and another v
Lawrence and another [2003] QB 528, it was said by Lord Woolf
(presiding in that case in a Court of Appeal comprising five judges including
the Master of the Rolls) at 538 (paragraph 16) :
“Accordingly, it is accepted that the Court of Appeal does
not have any inherent jurisdiction in respect of appeals from the county court
but only that which is given by statute. However, the use of the word ‘inherent’ in this context means no more than
that the Court of Appeal’s jurisdiction depends on statute
and it has no originating jurisdiction. The position is very much the same in relation to other
appeals to the Court of Appeal. Its
jurisdiction is to be determined solely by reference to the relevant statutory
provisions.”
(2) Notwithstanding the above, does an
inherent jurisdiction exist nevertheless giving the Court of Appeal
jurisdiction to hear appeals in situations not referred to in section 13? It is not necessary to enter into a
discussion of what is meant generally by the term ‘inherent jurisdiction’. For an erudite discussion of this
concept, see the well known article “The Inherent Jurisdiction of the Court” by
I H Jacob (1970) Current Legal Problems 23. It is necessary,
however, to recognize the limits of the inherent jurisdiction when the
jurisdiction of the court is defined by statute. Here, there is no room
for a court to exercise any jurisdiction to hear a case when its jurisdiction
has already been defined by statute. In other words, where a statutory
provision delineates the jurisdiction of a court, that court cannot assume a
jurisdiction that is outside the statutory scheme. The cases referred to
in the previous paragraph (and we are bound by some of them) seem exactly to
confirm this point. Obviously, the Court will have the full armoury of
powers within that jurisdiction to do what is necessary,
whether such powers derive from statute or its inherent jurisdiction, but it
cannot exercise a jurisdiction it does not have.
(3) As to Mr McCoy’s point that
the Court of Appeal, as a superior court of record, must have an inherent
jurisdiction to overturn a lower court’s order or decision if that has been
reached without jurisdiction, I do not see any distinction between such a
situation and that where it is said that the court below has erred, whether on
fact or law. Quite simply, whether or not the Court of Appeal can hear an
appeal from a lower court depends on the wording of the statute that defines
its jurisdiction. As will presently be seen, it has unfortunate
consequences in the present case where the Judge has, in my view, himself acted
in excess of jurisdiction.
(4) Although in Stuchiner, Litton VP referred to this
Court as a “superior court of unlimited jurisdiction”, it is clear, when that
statement is read in context, that all the Vice-President was saying was that
the Court of Appeal had an inherent jurisdiction to do everything necessary within
the jurisdiction it already had, even though the statutory rules were
silent on the court’s powers. As for Killenny, that case is upon analysis no more than an example where
the Court of Appeal set aside the decision below which was reached without
jurisdiction. There was never any question that the Court of Appeal
itself did not possess the requisite jurisdiction to hear the appeal. It
obviously did, since it arose in a civil cause or matter.
(5) The value of Killenny, rather, is more for the trite
proposition that where a court or tribunal does not have the necessary
jurisdiction, the parties cannot consent to jurisdiction being granted.
Nor can it be conferred either by the operation of doctrines such as estoppel
or waiver which might otherwise prevent a party from asserting his legal
rights. In the present case, it is notable that both sides were content
to treat the present appeal as a civil one and the jurisdiction point was one
that was raised late in the day. I mention this not as a criticism of the
Respondents (quite the contrary, as this point is an important one that had to
be resolved) but merely to emphasize the point on jurisdiction discussed so
far.
(6) The critical question is whether
the present appeal is from a judgment or order of the Court of First Instance
in a civil cause or matter : - cf section 13(2)(a). The
criminal jurisdiction of the Court of Appeal is not engaged, for the subject
matter of the present appeal does not fall within any of the provisions of section 13(3)(a)
to (d). Mr McCoy argued that the appeal could come within
section 13(3)(e) (“any other jurisdiction conferred on it by law”) but I
think Mr Dykes is correct when he says that this relates only to appeals
where an express provision to this effect exists in a statute.
(7) The question whether or not an
appeal arises from a judgment or order in a civil cause or matter, was
expressly dealt with in George Tan Soon-gin by both the Court of Appeal and the Judicial Committee
of the Privy Council. The applicable principles from that case can be
stated as follows : -
(a) In order to see whether an appeal
comes from a judgment or order in a civil cause or matter, one must have regard
to the nature of the cause or matter in
which the appeal is brought : - see the opinion of Lord Mustill at
221B.
(b) The term “cause or matter”
is a reference to the proceedings underlying the particular judgment or order
sought to be appealed : - see here Amand v Home Secretary and Minister of Defence of Royal Netherlands
Government[1943] AC 147 at 159-60 per Lord Wright. Silke VP in
the Court of Appeal in George Tan Soon-gin (in
a passage cited with approval by the Privy Council) used the term “root” in posing
the question whether or not proceedings were criminal or civil : -
see 177. Thus, in George Tan Soon-gin,
where the matter sought to be appealed was a decision of the District Court on
an application to stay the prosecution of criminal charges, it was held that
the relevant cause or matter were the underlying criminal proceedings (being
the trial of the accused in that case on various charges).
(c) Where the nature of a cause or
matter is criminal rather than civil, it does not lose this characteristic
merely because at one stage or another, techniques are employed which closely
resemble those used in civil matters : - seeGeorge Tan Soon-gin at 221B-C. For example,
in Alick Au Shui-yuen, the
immediate judgment or order sought to be appealed was a decision in judicial
review proceedings, although the underlying cause or matter were criminal
proceedings.
(8) The above statement of the
principles arising from George Tan Soon-gin do not, however, answer the
fundamental question, crucial in the present case, as to how one is to
determine whether the “nature” of a cause or matter is civil or criminal.
On one view, the nature of a cause or matter (the underlying proceedings)
can only be criminal where (borrowing the words of Lord Wright
in Amand at 162) it is one
“which, if carried to its conclusion, might result in the conviction of the
person charged and in a sentence of some punishment”.
(9) This view is said to find support
from the case of McCann which was heavily relied on by Mr McCoy. In
that case, the House of Lords had to determine whether the making of what were
commonly known as anti-social behaviour orders under the Crime and Disorder Act
1998 were civil or criminal proceedings. Such orders, made by
magistrates, prohibited persons who have acted in an anti-social way from doing
certain things (for example, from entering certain areas of a city).
Anti-social behaviour could include criminal activities but, importantly, not
necessarily so. In addition, the making of such an order did not involve
any criminal sanctions, although the breach of such an order, could.
Instead, what was involved in the making of such orders was essentially the
granting of the civil remedy of an injunction against the anti-social
person : - see 806 at paragraph 18. The House of Lords
accordingly held that the making of anti-social orders involved civil, not
criminal, proceedings. It is pertinent to note that the House of Lords
had to consider this question in the context of the following provisions : -
(a) First, Article 6 of the European
Convention which stipulated a number of requirements for persons charged with
criminal offences (such as the presumption of innocence and the right to a
public hearing within a reasonable time).
(b) Secondly, the Civil Evidence Act
1995 and the Magistrates Courts (Hearsay Evidence in Civil Proceedings) Rules
1999 concerning the use of hearsay evidence.
(c) Thirdly, section 1(1) of the Administration of Justice Act 1960 providing for
appeals from the High Court to the House of Lords “in any criminal cause or matter”. In arriving at its
conclusions, the House of Lords made statements as to what would constitute
criminal proceedings or a “criminal cause or matter”. I have already
referred to the relevant passages in paragraph 30(2) above.
(10) Attractive though this view
(expressed in paragraph (8) above) is, I regret I do not
agree with it. Nor do I think that it was the intention of the Judicial
Committee of the Privy Council in George
Tan Soon-gin to restrict the inquiry as to the nature of the
relevant cause or matter in this narrow way. While no doubt the presence
of underlying criminal proceedings where the relevant accused faces the
possibility of a conviction on a criminal charge and of being punished for it,
will certainly mean that the “cause or matter” is criminal and not civil, this
I believe merely to be an example (albeit a classic one) and not exhaustive.
Further, in my view, the House of Lords in McCann, in those passages already referred to, was not seeking to
lay down an exhaustive definition of criminal proceedings or a criminal cause
or matter. These statements were made in the particular context before the
House of Lords. It was expressly recognized that the term “criminal cause
or matter “ may bear a different meaning when interpreted in the context of the
existence of appellate jurisdiction : see the speech of Lord Steyn at
807 (paragraph 21).
(11) In ascertaining the nature of the
underlying cause or matter in which the judgment or order under appeal is
brought, one must, I believe, adopt a flexible approach with some degree of
commonsense. The analysis should involve looking
at the object and purpose of the relevant cause or matter. A cause or matter that has as its object or purpose the
possible conviction of a person on a criminal charge is an a fortiori situation where the
nature is without doubt criminal, but this is not the only situation. Where,
for example, an order was sought for the production of various documents which
constituted “special procedure material” under the terms of the Police and
Criminal Evidence Act 1984 (“PACE”) in order to assist a criminal investigation
(these being proceedings similar to those under section 84 IGCO), it was
held by the English Court of Appeal that these proceedings were a criminal
cause or matter for the purpose of section 18(1)(a) of the Supreme Court
Act 1981 (which barred appeals to the Court of Appeal in relation to any
judgment of the High Court in a “criminal cause or matter”) : -
see Carr and Others v Atkins [1987]
1 QB 963. This was so even where criminal proceedings had not yet
begun : - see 968C-E per Lord Donaldson of Lymington. In the
same case, Stephen Brown LJ agreed with the judgment of the Master of
the Rolls and added at 971C :
“The criminal investigation is, in my judgment, the basis of
the application in the instant case.
This is undoubtedly, in my view, a criminal cause or matter, and to hold
otherwise would render the administration of this Act [PACE] well nigh
impracticable”.
I
pause here to note that Carr and Others v Atkins was one of the authorities
referred to by Lord Mustill (without any disapproval) in George Tan Soon-gin : -
see 218H-219A. This lends support to the proposition that the analysis of
the nature of a cause or matter was not intended by the House of Lords to be
too narrow in scope.
(12) In the present case, the judgment
or order on appeal before us is that of Hartmann J where he set aside the search warrants that had been
issued by Stone J under section 85 of IGCO. The relevant cause or matter here
were therefore the underlying section 85
proceedings. Admittedly, there has been no
formal accusation of any breach of criminal law and the consequences for the
Respondents of the section 85 application, when carried out to
its conclusion, was not their (or indeed, anyone else’s) conviction. The only consequence of that
application as far as the Respondents are concerned was that search warrants
were issued allowing the ICAC to search their premises. No criminal charge may ever be brought. Yet, as a matter of reality and commonsense, the whole
point of a section 85 application is to further investigations into criminal
offences. There is no other purpose. Here, it is to be noted that a
section 85 (or for that matter a section 84) application can only be
made where there are reasonable grounds for believing that an arrestable
offence has been committed : - see sections 84(3)(a)(i) and
85(3)(a)(i) IGCO. This is a requisite condition to be fulfilled.
In Apple Daily Ltd when the
matter was before the Appeal Committee of the Court of Final Appeal (where the
application for leave was eventually refused), it was stressed in the judgment
of Litton NPJ that the search and seizure powers of section 85 had to
be seen against section 10C(1)(c) of ICACO which empowered the ICAC to
seize and detain material only if there was reason to believe that such material
was itself or contained evidence of an offence under section 10 of that
Ordinance. Moreover, search warrants in general are only issued in
furtherance of a criminal investigation. This has to be contrasted with
the position in McCann where
the relevant underlying proceedings were the making of anti-social orders which
did not necessarily (although it could) involve the
investigation of criminal offences or the making of any finding that such
offences had been committed. This was evidently an important factor which
enabled the House of Lords to reach the view that such orders were civil orders
(and constitutes, in my view, the main distinguishing feature of that case from
the present) : - see 808-9 (paragraphs 22-27), 817
(paragraph 54), 822-3 (paragraphs 71-72), 829 (paragraph 94).
Accordingly, for these reasons, I am of the view that section 85
proceedings are criminal in nature and do not constitute a civil cause or
matter.
(13) Statute also strongly supports this
conclusion. During the course of argument,
Stock JA referred to the provisions of RHC
O.1 r.2(3) which expressly refers to O.118 as applying to criminal
proceedings. Given that O.118 deals solely with applications under
Part XII of IGCO for the search and seizure of journalistic material, it
follows that applications made under sections 84 and 85 IGCO are
necessarily criminal proceedings. In my view, there is no answer to this
argument. Mr McCoy tried to draw a distinction between applications
made under section 85 before charges have been laid and such applications
being made after charges have been made (and therefore criminal proceedings
commenced). However, Part XII of IGCO does not make this
distinction. Further, even if it were possible for a section 85
application to be made once charges have been laid, an absurdity arises on the
ICAC’s arguments here : - it would logically follow that while
applications under section 85 made prior to charges being laid would be
regarded as civil proceedings and therefore any decision can be appealed to the
Court of Appeal, this radically changes once charges have been laid, when such
applications under section 85 would presumably be transformed into
criminal proceedings with the result that no appeal would be available to the
Court of Appeal.
(14) I accept in the conclusion reached
above as to the nature of a section 85
application that this is directly contrary to the obiter views of Keith JA in Apple Daily Ltd at 658 that a section 85
application could not be regarded as having been made in criminal
proceedings. However, we have had the benefit of extensive argument on
this point, unlike in Apple Daily Ltd where no one seems to have
raised any question of the Court of Appeal’s jurisdiction to hear the
appeal. If the same question had been raised and the Court there provided
with the assistance that we have, it is doubtful whether the appeal would have
been entertained in that case either.
(15) Lastly in this context, I would
just deal with one minor point that was raised by me during argument, namely,
the possibility whether jurisdiction could be conferred on this Court by reason
of RHC O.1 r.2(3) making the RHC (and therefore O.59) applicable to proceedings
under O.118. On closer analysis, this point is
untenable. O.59 is applicable only where there
is jurisdiction to lodge an appeal in the first place (see O.59 r.1). It does not itself provide any basis for founding
jurisdiction.
32. Accordingly, since the proceedings underlying
Hartmann J’s decision were not a civil cause or matter, this Court has no
jurisdiction to hear the present appeal. The only means of appeal would
be an appeal to the Court of Final Appeal : - see section 31(b)
of the Hong Kong Court of Final Appeal Ordinance, Cap.484.
33. This point of jurisdiction having been resolved
against the ICAC, the appeal must inevitably be dismissed. In George Tan Soon-gin, the Court of
Appeal, after having decided that it had no jurisdiction nevertheless continued
to state its views on the subject matter of the appeal before it. This
caused the Judicial Committee of the Privy Council to remark that “any
observations concerning the merits of an appeal which should not be before the court
must necessarily be extra-judicial” : - see 221E-F. Though
mindful of this, I think it must be accepted that my conclusions on
jurisdiction could be wrong. Therefore, out of completeness and as the
other issues I have identified above have been fully argued, I think it
worthwhile to state my views on them.
Issue 2 : Is the appeal academic?
34. It is true that the ICAC have now been given access to
the seized materials. However, the present appeal is far from academic,
even as between the parties. An order for costs in the court below was
made against the ICAC and the reversal of this forms a part of the Notice of
Appeal. No concession having been made by the Respondents as to costs, it
seems to me that, on the assumption the Court has jurisdiction, this question
can only be resolved in the present case by determining the merits of the
appeal.
35. More important, considering that the outcome and
determination of the present appeal involves the examination of provisions that
singularly affect one of the basic freedoms enshrined in the Basic Law
(Article 27 : the freedom of the press), the case is of
considerable public importance and interest. Moreover, a number of other
newspapers in respect of whom search warrants were also issued, find themselves
in a similar position as the Respondents in the present case and are awaiting
the outcome of the present appeal. In these circumstances, there is a
very strong case that is made out in the public interest to hear the present
appeal : - see here Chit
Fai Motors Co Ltd v Commission for Transport [2004] 1 HKC 465, at
472-3 (paragraph 20(3)) referring to R v Secretary of State for the Home Department ex p Salem [1999]
1 AC 450, at 457.
Issue 3 : Jurisdiction to set aside under O.32
r.6 or the inherent jurisdiction
36. It is first necessary to outline the statutory scheme
under Part XII of IGCO. The relevant provisions here have already
been set out in paragraph 13 above. Essentially the scheme is as
follows : -
(1) As the title to that Part suggests,
the subject matter is the search and seizure of what is termed “journalistic material”, a term which is defined in section 82. The provisions contained in Part XII are unique in the sense that while production orders and
search warrants are frequently made or issued by the courts in many varied
situations, the search and seizure of journalistic material has been singled
out for special consideration. The reason is perhaps not difficult
to discern : when a fundamental freedom such as the freedom of the press
is involved, it was obviously felt necessary and desirable to set out clearly
any qualification or derogation of that freedom. Journalistic material
forms the backbone of the freedom of the press. As a general rule, such
material must be given the greatest possible protection from seizure or public
exposure; otherwise the press may become inhibited in informing the public of
matters it is entitled to know.
(2) However, the protection of
journalistic material is of course not absolute either, for sometimes it may be
in the public interest that journalistic material should be seized or exposed. Part XII aims to set out the requisite
criteria to govern the search and seizure of journalistic material. There has been no suggestion in the present appeal that the
provisions of Part XII are in any way unconstitutional. It must therefore be assumed in these circumstances that,
for present purposes at least and as far as these Respondents are concerned,
they are within acceptable bounds.
(3) The first requirement that has to
be fulfilled before any search or seizure can take place is that access to
journalistic material under Part XII is restricted only to those
persons who are authorized by statute to carry out searches in the first place. Thus, the police or the ICAC are able to make the necessary
application to court for access to journalistic material.
(4) Only two means to search and seize
journalistic material are provided for under Part XII : an application under
section 84 or one under section 85. Both can only be made in
the context of arrestable (and therefore serious) offences.
(5) In the case of an application under
section 84, the following features are
present : -
(a) The application is made either to a
judge of the District Court or of the Court of First Instance.
(b) The Applicant must demonstrate
those requirements stipulated in section 84(3). Of particular note here is the
requirement in section 84(3)(c) that other methods of
obtaining the material have been tried and failed or that such methods have not
been tried because they were unlikely to succeed or would be likely seriously
to prejudice the investigation.
(c) Of note also is the public interest
the Court must take into account not only under section 84(3)(d) (which is somewhat limited) but also under
section 89(2). These provisions require a court to have a broad view
of the public interest in considering whether such orders should be made.
(d) The application is to be made inter
partes. O.118 r.3 states that such applications must be made by way of
originating summons and that there must be a supporting affidavit. This
exemplifies one of the singular features of an application made under this
section, namely, that the Respondent has full notice well in advance of just
what is sought.
(e) An order under section 84, once made, requires the journalist or newspaper
respondent to produce the journalistic material sought or to allow the
applicant to take it away not later than 7 days from the date of the order or such longer period as may
be permitted by the Court. In other words, access is not
immediate.
(6) By way of total contrast, a section 85 application has the following features : -
(a) The application is for a search
warrant, not an order to produce as in section 84.
(b) It is made ex parte (see O.118 r.5)
to a judge of the District Court or of the Court of First Instance.
(c) It is intended to be acted upon
immediately (as indeed are all search warrants).
(d) Accordingly, given these
characteristics just referred to, the conditions that have to be fulfilled in
obtaining a search warrant are more stringent than in the case of a production
order. Not only have the conditions set
out in section 84(3)(a), (c) and (d)(i) to be
fulfilled and also the requirement that before an application under this
section is made, there must be approval from a superior officer, the Applicant
must fulfil each of the further conditions stipulated in
section 85(5). For present purposes, the important condition is that
contained in section 85(5)(c), being that it must be shown that a
section 84 application could not have been made by reason that such an
application “may seriously prejudice the investigation”. It should be
observed that this provision, dealing specifically with the question whether a
section 84 application could instead have been made, qualifies the
requirement in section 84(3)(c). It is curious that the term in
section 85(5)(c) is “may seriously prejudice the investigation” whereas in
section 84(3)(c)(ii) the term used is “would be likely to seriously
prejudice the investigation”. There may be little difference in practice
between the two terms (and certainly in the present case, it makes no
difference - see Issue 4 below) but on a plain reading it does
suggest that somehow the requirement in section 85(5)(c) is less stringent
than that in section 84(3)(c)(ii).
(e) Once a search warrant is issued and
a search and seizure take place, the Applicant is not entitled to immediate
access to the journalistic material, such material having to be sealed for 3 days pending any application under section 87 of IGCO, unless the judge is satisfied that there may be
serious prejudice to the investigation if immediate access is
denied : - see sections 85(6) and (7).
(7) Applications under both section 84 and section 85 require the Court to consider the
public interest : section 89(2). Even where the various
stipulated requirements are satisfied, the Court retains a discretion whether
or not to grant the application (note the word “may” in section 84(2) and
section 85(3)). In exercising this discretion, the judge must bear
in mind the public interest.
(8) In the context of section 85 applications, section 87 requires careful examination. It enables a person from whom journalistic material has
been seized under a section 85 search warrant to apply to Court
for the return for such material. Although the heading to this
subsection refers to “Procedure in relation to sealed
material”, it applies to all seized
journalistic material, sealed or not.
In my view, this provision assumes great importance in the present case in the
following respects : -
(a) First, it emphasizes the fact that
an application under section 85 is made ex parte.
(b) Secondly, while in the normal case,
ex parte decisions of the Court are revisited either on the return day (for
example, on a summons day) or when the person affected by it applies to set it
aside or have it quashed, in the case of a search warrant issued under section 85, the procedure for an inter partes hearing is expressly
provided for in section 87 itself. It is difficult to see why a
specific procedure for an inter partes hearing following the grant of a search
warrant under section 85 should be set out in primary legislation unless
it was intended that this was to be the only means by which the ex parte
decision could be revisited. While a section 85 search warrant
allows search and seizure of journalistic material, a section 87
application is for the return of that material.
(9) At a section 87 hearing, the Court has to consider whether it would be in
the public interest that the seized material should be made use of for the
purpose of the relevant investigation.
This, together with the obligation on the Court to look at the public interest
in a broad way under section 89(2), permits the Court to look at
all the circumstances of the case.
37. Hartmann J assumed there existed jurisdiction to
entertain the Respondents’ application to set aside the search warrants.
He did so under O.32 r.6. The Respondents also prayed in aid of the
Court’s inherent jurisdiction. With respect, I regret not being able to
agree with these approaches : -
(1) It will be clear from the earlier
analysis of the statutory scheme under Part XII of the IGCO that a complete, self contained code has
been devised to deal with the search and seizure of journalistic material.
Detailed provisions exist in IGCO and in O.118 as to the two types of
applications which relate to this, covering not only the substantive
requirements which have to be satisfied, but also the procedures governing such
applications. Insofar as section 85 proceedings are concerned, there
is, I believe, no room for the application of O.32 r.6 (or the Court’s inherent
jurisdiction) when there exist express provisions (contained in
section 87) to allow the person affected by a section 85 search
warrant to be heard. It must not be forgotten that the purpose of a
section 85 search warrant is to search for and seize journalistic
material. Section 87 allows the affected person effectively to set
this aside by obtaining the return of the seized material.
(2) I of course readily accept that in
normal ex parte situations in civil proceedings, the party affected should have
a right to be heard if that party wishes, particularly as ex parte orders are
essentially provisional in nature : - see WEA Records Ltd v Visions Channel 4 Ltd [1983] 1 WLR 721, at 727
D-E. O.32 r.6 is the statutory embodiment of this right. Equally,
the fact that an ex parte order has been performed provides no reason to
prevent the affected person from seeking to overturn its grant. For
example Anton Piller orders may often already have been executed before a party
seeks to set it aside. However, a search warrant is quite different in
nature. It is not part of any ongoing process, or part of any lis between
two or more parties. In procedures for the issue and execution of such
warrants, occupiers have no right to be told at the stage of the application or
before the warrant is executed of the grounds upon which the application has
been made or the grounds upon which the warrant has been issued : - see R v IRC ex parte Rossminster [1980]
AC 952, 999. Normally, once a judge has issued a warrant and it has been
executed he is then functus officio.
It follows that but for section 87, there would be no right to entertain
any application whether it be by way of Order 32, r 6 or by any other
mechanism, to review the order (if it be an order) by which the warrant had
been issued. So much is clear, if authority be needed, from the decision
in R v Liverpool Crown Court and
another ex parte Wimpey plc [1991] Crim LR 635, a case in which
similar provisions under PACE were examined, and from the full judgment
(unreported) of which I take the following passages :
“ Mr Leveson on behalf of the Crown submits that the
procedure within Schedule 1 is a self-contained procedure which has a
beginning, a middle and an end. The beginning is an application to the
circuit judge; the middle is the hearing of that application, and the end is
the order made by the circuit judge. Although therefore Mr Scrivener
in a sense rightly refers to this proceeding as an interlocutory proceeding in
the sense that it is a proceeding which is ancillary to a projected criminal
trial and is not the outcome of that trial, Mr Leveson submits that it is,
being a self-contained procedure, one which leads within itself to a final
order, that is to say, the final order made by the judge for the warrant to
issue. It is not open to the parties to come back to the judge, submits
Mr Leveson, to re-open that final order in order to hear further evidence
and consider what, if any, alteration he ought to make.
There is a principle which it is important to bear in mind,
that proceedings ought to have finality, and, if it were open to parties to
challenge an order made by a circuit judge in these circumstances, challenges
would almost certainly be made in nearly every case and the circuit judge would
be faced with a review of his order, conflicting evidence, and having to decide
on that evidence matters which might pre-empt the trial of the case in some
respects. Mr Leveson submits that it is
not appropriate that there should be a review of that kind. This does not
leave an aggrieved party without a remedy. The party has the remedy of
applying for judicial review. That, Mr Leveson submits, is the
proper approach.
…..
Speaking for myself, I can see the anxiety that is
reflected by the submissions made by Mr Scrivener as to what might happen
if a judge was persuaded to make an order which was erroneous in some important
respect. He gave, as an example, what would happen if the judge were persuaded
in error to make an order in respect of premises which were not in fact the
premises that the police really wanted to examine but they had got the address
wrong. I would have thought that that was an unlikely situation but one
that could be met on a pragmatic basis, and in any event it could be a matter
to be brought before the Divisional Court as swiftly as it could before a
circuit judge in most instances.
As a matter of principle, it seems to me that this
situation provided for in Schedule 1
of the 1984 Act is unlike that which is to be encountered generally in the
jurisdiction of the Crown Court and certainly unlike that to be encountered in
the jurisdiction of the High Court on its civil side. Looking at the scheme of Schedule 1 and the statutory purpose, I have reached the conclusion
that it would not be right for the circuit judge nor would he have any power to
entertain an application inter partes to review the order that he had made ex
parte pursuant to paragraph 12 of Schedule 1.”
I should add in relation to PACE
that there is no equivalent provision to section 87.
(3) Of course, in a section 87 application, the Court does not just look at the question
whether the issuing of the search warrants was justified in the first place
because it has, as required by section 87(2),
to consider whether it would be in the public interest that the seized material
should be made use of for the purpose of a criminal investigation. This may at times involve a careful balancing exercise,
with the public interest as the paramount consideration. For example, the public interest may demand that
notwithstanding the fact that an ex parte order was improperly obtained, the
Court may nonetheless consider it appropriate to allow the seized material to
be used, particularly when it is, say, crucial for the detection or prevention
of a crime. On other occasions, the balance may tilt the other way.
Because of the approach that a court is required to adopt under
section 87(2), this provides yet another reason to support the proposition
that section 87 provides the only means by which an affected person can
challenge the section 85 decision. Otherwise, the Court may find
itself in the near impossible situation of having to apply different principles
in relation to what in essence is the same inter partes application. The
present case provides a ready example. An application under
section 87 must be made within three days of the seizure (unless extended
by the Court). An application under O.32 r.6 on the other hand, is not so
restricted in terms of time. The fact that in the present case the
Respondents made both applications within the 3-day limit is beside the point.
(4) In Apple Daily Ltd, Keith JA was of the view that
an application to set aside under O.32 r.6 was available to an affected
person : - see 657-8. This view was necessarily obiter as the
matter was eventually resolved by the Court of Appeal on the facts. The
basis for it seems to have been two-fold : - first, that it was
thought the obtaining of a search warrant under section 85 involved civil
proceedings; secondly, Keith JA was particularly concerned that an affected
person should have the right to set aside an ex parte order where there
existed, for example, material non-disclosure or misrepresentation. As to
the first basis, for the reasons set out above in relation to the question of
the jurisdiction of this Court, I am of the view that section 85
proceedings are criminal in nature. As for the second basis, while I
instinctively share Keith JA’s concern over any inability of an affected
person to be heard in relation to an ex parte order that has been made against
him, this is not a concern in the present case since, for the reasons earlier
discussed, the remedy made available to a person affected by a section 85
search warrant is to be found in section 87. Curiously, but
significantly, this provision was not referred to by Keith JA in Apple Daily Ltd. This is quite
apart from the point made in paragraph (2) above that a search warrant
differs in nature to an ex parte order made in court proceedings.
(5) In the present case, in holding
that there was jurisdiction to hear the setting aside application under O.32
r.6, the Judge did not examine the importance of section 87 to see how it fitted into the statutory scheme. Reliance was instead placed on O.1 r.2(3), the dicta of
Keith JA in Apple Daily Ltd and a decision of
Lugar-Mawson J in X v The
Commissioner of the Independent Commission Against Corruption, unreported,
HCCM 49/2003, 20 October 2003, Court of First Instance. It
is correct that O.1 r.2(3) makes applicable the Rules of the High Court to
proceedings under Part XII of IGCO, but this must be with the obvious
qualification that the Rules are applied only insofar as they are
applicable. There are many Rules in the RHC that are simply inapplicable
to Part XII proceedings. For the reasons earlier given, O.32 r.6 is
one of them. As for X v
Commissioner for the Independent Commission Against Corruption, this case,
apart from merely following the dicta of Keith JA in Apple Daily Ltd, concerned O.119 (which
deals with applications made under Part III of the POBO).
(6) Finally, I ought to mention that
none of the foregoing discussion affects the right of a person to claim damages
for the tort of the malicious procurement of a search warrant:- see Brian Gibbs v John Mitchell Rea [1998]
AC 786.
38. Before us, interesting arguments were raised by
Mr McCoy as to whether a decision to issue a search warrant under
section 85 could constitute an ‘order’ for the purpose of O.32 r.6, and
whether it was a judicial act in the first place (in Australia there exists a
line of cases suggesting that the issue of a search warrant by a court was
merely an administrative act open to judicial review : - see Love v Attorney General for the State of New
South Wales (1990) 169 CLR 307). I have some doubts as to the
soundness of these points. As to the first, although admittedly the
language of section 84 refers to orders of the Court being made and this
is absent in section 85, yet section 89(2) uses the terms “order”
when referring to Part XII proceedings. It is in any event difficult
to see the real difference between a section 84 decision and one under
section 85 as a matter of substance when both deal with the search and
seizure of journalistic material. As for the second point, whatever the
position in Australia, it is difficult to see how section 84 or
section 85 applications can be seen to involve merely administrative acts,
especially given the judicial nature of the procedures involved. In any
event, these points are perhaps peripheral to the main point which is the
availability of section 87 as a real (indeed the only) means of setting
aside the effects of a section 85 search warrant after it has been
granted.
39. The Judge being wrong to have assumed jurisdiction
under O.32 r.6, he ought therefore to have heard only the Respondents’
application under section 87 of IGCO. However, as paragraph 72
of his judgment makes clear, he did not deal with this application.
40. I now proceed to consider the merits, this being on
the assumption that the Judge was correct to assume jurisdiction as he did.
Issue 4 : Was there
justification to issue the search warrant in the present case?
41. I have already in paragraph 36 above set out the
relevant statutory scheme in relation to the issue of search warrants under
section 85 IGCO. To this scheme, the Judge superimposed
7 principles which he said could be derived from the English cases.
These principles have already been set out in paragraph 24(3) above.
Counsel for the ICAC was criticized for not having drawn Stone J’s
attention to these cases. Hartmann J was of the view that had the
judge’s attention been drawn to these cases, the outcome would have been quite
different.
42. I will presently be embarking on an analysis of these
suggested principles and then deal with the question whether on the facts the
search warrants ought to have been granted in the first place. In this
latter exercise, I do so on the basis that this Court is in at least as good a
position as Hartmann J to look at the facts. There is, moreover, no
question of having to disturb a judicial discretion here because
Hartmann J treated the hearing as a setting aside application under O.32
r.6. Had he (as I have held he ought to have done) conducted a hearing
based on section 87, the question of a judicial discretion might well have
arisen on appeal.
43. Before going into the 7 suggested principles, I
would like to make some general points : -
(1) First, the Judge said in paragraph 46 of his judgment that the scheme contained in Part XII of IGCO had to be viewed “through the prism”
of Article 27 of the Basic Law guaranteeing the
freedom of the press. This is apt to confuse. If all that was meant was that Part XII deals with the permissible limits to the freedom of the
press, then I would have no quarrel with this as a proposition. If, however, what was meant was that in approaching Part XII applications, there should be a bias in favour of this
basic freedom and to regard that as some sort of paramount consideration, I
would disagree. As I have earlier said, Part XII at the same time
emphasizes the freedom of the press as well as fixes the limits to it.
Part XII itself contains important safeguards to protect the basic
freedom, safeguards which journalists alone enjoy in Hong Kong. And, it
should perhaps be noted, these safeguards (in the form of those stringent
requirements referred to earlier) are more extensive in Hong Kong than in
legislation such as PACE. There are, however, limits to it. If
there is any paramount consideration at all, it is the public interest which is
mentioned in at least 3 provisions : - sections 84(3)(d),
87(2) and the catch-all section 89(2). As far as
section 84(3)(d)(i), imported by section 85(3)(a)(i) is concerned,
the public interest to which the Judge is at that stage to have regard is
expressly limited to the matters there stipulated and is not an open ended
public interest condition. See R
v Central Criminal Court ex parte Bright [2001] 2 All ER 244; R v Northampton Crown Court ex parte
Director of Public Prosecutions(1991) 93 Cr App R 376, 381. The
public interest referred to in sections 87(2) and 89(2) are of course much
wider. The public interest requires the Court to consider all aspects of
any given case, with no bias or predisposition towards any particular
factor. Often, a balancing exercise between competing interests is
involved.
(2) The balancing exercise that Part XII focuses on is the freedom of the press seen against the
need effectively to investigate and deal with crime. In Apple Daily Ltd, Chan CJHC said at
674D-E : -
“The court in discharging this constitutional duty must
balance two competing aspects of the public interest, namely, the interest in
the detection of crimes and bringing criminals to justice on the one hand and
the interest in the protection of the citizens’ rights and privacy on the other. See IRC v Rossminster Ltd & Another [1980] AC 952, per Lord Diplock at p.1007G, Lord Salmon at p.1015B and A-G of Jamaica v Williams [1998] AC
351, per Lord Hoffman at
p.361A.”
(3) In R(Bright) v Central Criminal Court [2001] 1 WLR 662, which
concerned an application for an order under section 9 and Schedule 1
of PACE (akin to a section 84 application), Judge LJ said in relation
to this at 681F-G :-
“The judge, alert to the need to safeguard basic freedoms,
must simultaneously acknowledge the public interest which underpins the
relevant legislation, and section 9
and Schedule I in
particular, that crime should be discouraged and those responsible for crime
should be detected and brought to justice. Balancing these interests where they appear to be in
conflict is a decision to be made in each individual case where apparent
conflict arises.”
(4) In Canadian Broadcasting Corporation v
Attorney General for New Brunswick (1991) 67 CCC (3rd edition) 544,
at 556-7, Cory J in the Supreme Court of Canada had this to
say : -
“The constitutional protection of freedom of expression
afforded by s.2(b) of the Charter does not, however, import any new or
additional requirements for the issuance of search warrants. What it does
is provide a backdrop against which the reasonableness of the search may be
evaluated. It requires that careful consideration be given not only to
whether a warrant should issue but also to the conditions which might properly
be imposed upon any search of media premises.
Whether the search of a media office can be considered
reasonable will depend on a number of factors including the nature of the
objects to be seized, the manner in which the search is to be conducted and the
degree of urgency of the search.
It is of particular importance that the justice of the peace consider the
effects of the search and seizure on the ability of the particular media
organization in question to fulfil its function as a news gatherer and news disseminator.
If a search will impede the media from fulfilling these functions and the
impediments cannot reasonably be controlled through the imposition of
conditions on the execution of the search warrant, then a warrant should only
be issued where a compelling state interest is demonstrated. This might
be accomplished by satisfying the two factors set out by Nemetz, C.J.B.C.
in Pacific Press: namely, that
there is no alternative source of information available or, if there is, that
reasonable steps have been taken to obtain the information from that
source. Alternatively, the search might be justified on the grounds of
the gravity of the offence under investigation and the urgent need to obtain
the evidence expected to be revealed by the search.
The balancing of interests is always a difficult and
delicate task. In this
case, for example, the throwing of Molotov cocktails at a building not only
damaged the property but constituted a potential threat to the lives and safety
of others. The investigation of a serious and
violent crime was of importance to the state. Further, in light of the ongoing demonstrations, some
urgency in conducting the search must be recognized. On the other hand, the objects sought to be seized were the
product of the research and investigation of a media organization. It was important that the continuing work of the media
should not be unduly impeded.
The factors to be weighed with regard to issuing a warrant
to search any premises will vary with the circumstances presented. This is as true of searches of media offices as of any
other premises. It seems
to me, however, that where the media have fulfilled their role by gathering the
news and publishing it, there would seem to be less to be said for refusing to
make that material available to the police. At that point, the media have given to the public, by way
of picture or print, evidence of the commission of a crime. The media, like any good citizen, should not be unduly
opposed to disclosing to the police the evidence they have gathered with regard
to that crime.”
(5) Secondly, it is important to
emphasize that neither Part XII nor any other legislation
enables the ICAC to exercise any sort of arbitrary power to effect search and
seizure of journalistic material. A search warrant must first be
obtained from a judge, who may only grant it upon certain identified, stringent
requirements being fulfilled as well as it being in the public interest to
issue one.
(6) Thirdly, while there is normally no
objection in setting out general principles the way the Judge has done in the
present case, care must be taken not to detract or divert attention from what
are the statutory requirements for a section 85 application.
As Bingham LJ said in R v Crown Court at Lewes, ex parte
Hill (1991)
93 Cr App R 60, at 65-66 (in a passage cited with approval by the House of
Lords in R v Southwark Crown Court
ex parte Bowles [1998] AC 641, at 648) : -
“ The Police and Criminal Evidence Act governs a field in
which there are two very obvious public interests. There is, first of
all, a public interest in the effective investigation and prosecution of
crime. Secondly, there is a public interest in protecting the personal
and property rights of citizens against infringement and invasion. There
is an obvious tension between these two public interests because crime could be
most effectively investigated and prosecuted if the personal and property
rights of citizens could be freely overridden and total protection of the
personal and property rights of citizens would make investigation and
prosecution of many crimes impossible or virtually so.
The 1984 Act seeks to effect a carefully judged balance
between these interests and that is why it is a detailed and complex
Act. If the scheme intended by
Parliament is to be implemented, it is important that the provisions laid down
in the Act should be fully and fairly enforced. It would be quite wrong
to approach the Act with any preconception as to how these provisions should be
operated save in so far as such preconception is derived from the legislation
itself.
It is, in my judgment, clear that the courts must try to
avoid any interpretation which would distort the parliamentary scheme and so
upset the intended balance. In the
present field, the primary duty to give effect to the parliamentary scheme
rests on circuit judges. It seems
plain that they are required to exercise those powers with great care and
caution. I would prefer to the observation
of Lloyd L.J. in Maidstone Crown Court, ex p. Waitt [1988] Crim.L.R. 384 where he said:
‘The special procedure under section 9 and Schedule 1
is a serious inroad upon the liberty of the subject. The responsibility for ensuring that the procedure is not
abused lies with circuit judges.
It is of cardinal importance that circuit judges should be scrupulous in
discharging that responsibility.’”
(emphasis added)
(7) Fourthly, the Judge obviously felt
that the ICAC had failed in its duty to make full and frank disclosure by its
failure to draw Stone J’s attention to certain English authorities. It is not clear whether this was by itself enough to set
aside the search warrants but it can, I think, fairly be assumed that it must
have been a factor that influenced Hartmann J. I should perhaps make it clear that
normally in ex parte applications the duty to make full and frank disclosure
applies to facts rather than law. That said, the overall duty on the
party applying for an ex parte order is to present the case fully and fairly to
the judge hearing the matter, whether relating to fact or law. By “fully
and fairly” I do not mean that an advocate is expected to deal with every
little nuance in an application but he must highlight to the Judge the
weaknesses in particular in his case, whether in fact or in law. I have
found useful in this discussion the remarks of Robert Walker LJ
in Memory Corporation Plc and
Another v Sidhu (No.2) [2000] 1 WLR 1443, at 1454C-1455G.
44. With these general remarks in mind, I now proceed to
deal with the 7 principles that the Judge suggested and then applied to
the facts of the case. As stated above, he was firmly of the view that
had Stone J applied these principles, the search warrants applied for by
the ICAC would not have been granted. I deal with each in
turn : -
(1) Principle 1
As long as one bears in mind the
statutory scheme, the individual requirements contained in Part XII and the consideration of the public interest discussed
above, this principle, as a general statement of the obvious, is
unobjectionable. I have no doubt that Stone J would have had it in mind and from the transcript of the
proceedings before him, it is clear that he did. Stone J had also before him the case of Apple Daily Ltd, where at 673J-4, Chan CJHC
makes precisely the same point.
(2) Principle 2
This is also a statement of the
obvious and of what is required by section 85. Again, there can be little doubt
that Stone J had this principle in mind.
(3) Principle 3
This principle as stated is liable
to mislead. It seems to suggest that before a
section 85 search warrant is sought, a
section 84 application ought first be made
first or that in most cases, this is the preferred method. Yet, the
legislation itself makes no such suggestion or assumption. Admittedly, it
must be shown as a condition of obtaining section 85 relief that the
making of an application under section 84 may seriously prejudice the
investigation, but this is the only requirement. I might perhaps add here
that a factor which may justify a search warrant being issued under
section 85 is the fact that the newspaper or journalist is itself or
himself the subject of a criminal investigation : - cf R v Leeds Crown Court ex parte Switalski,
unreported, 21 December 1990, QBD.
(4) Principle 4
The principle here stated is, with
respect, self-evident with emphasis to be placed on the word “necessarily”. The fact that a journalist is himself or herself a suspect
may well suggest that the appropriate route should be a warrant : - see sentiments to that effect in R v Lewes Crown Court, ex parte
Nigel Weller & Co, 12 May 1999, unreported; Attorney General of Quebec v Canadian
Broadcasting Corporation 67 ccc (3d) 517, 534. The important
point to remember here however is that there must be flexibility in the way
that the Court treats any particular factor. Sometimes, it may be a
matter of little consequence that the newspaper or journalist is being
investigated for a crime but on other occasions, it may be decisive. It
simply depends on the relevant circumstances.
(5) Principle 5
It is not helpful for phrases such
as “real risk” or “substantial probability” to apply to what needs to be shown in an affidavit in
relation to the destruction or concealment of the journalistic material sought. Section 85(5)(c) only requires that it be
shown that a section 84 application “may seriously prejudice the
investigation”. In my view, a judge will be perfectly able to test the
evidence before him against these words without the need for additional words
which, if anything, may confuse. In any event Switalski cited by the Judge is not support for the
proposition the Judge there advances. The phrase “substantial
probability” was used by counsel as descriptive of the likelihood of loss or
destruction of material, a suggestion of fact - not of a test in law – with which Neill LJ
agreed.
(6) Principle 6
While this may reflect good
practice, I have difficulties in seeing how in the present case this factor
could have influenced Stone J one way or the other.
(7) Principle 7
This has already been discussed in
paragraph (5) above. However, again I have difficulties in seeing how this
factor could have influenced Stone J
into making a different decision even if he was somehow unaware of it (which I
cannot accept).
45. In my view therefore, either these principles were
obvious ones having regard to the decision of this Court in Apple Daily Ltd, the express provisions
of Part XII of IGCO and as a matter of judicial commonsense, or they
require to be qualified. I should also make it clear that I am of the
view that counsel before Stone J could not be said to have failed in his
duties to the Court in any way and I take this opportunity to underline this
fact.
46. Nowhere in the judgment does the Judge explain just
how the application of these principles would have persuaded Stone J to
refuse issuing the search warrants. Perhaps the Judge thought that by
doing so, he might have had to reveal the contents of the affirmation that was
used to support the section 85 application before Stone J. I
know not the reason but would only wish to say that I would be surprised in the
extreme if Stone J did not have the relevant principles in mind when approaching
the application before him. The length and content of the hearing amply
demonstrates this. The Judge acknowledged also that Stone J was
“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”. That said, in
any event, this Court will now have to look at the facts to see whether the
search warrants were properly granted.
47. As indicated earlier, this Court has had sight of the
affirmation used to support the ICAC’s application for the search warrants
under section 85. So did Hartmann J. This affirmation was
not made available to the Respondents in the court below by reason of public
interest immunity. In Apple
Daily Ltd, the Court of Appeal held that public interest immunity attached
to the whole of the affidavit used to support an application for a search
warrant under section 85 and they were therefore privileged from
disclosure : - see 659E-664C. This Court is bound by that
decision on this aspect, forming as it does part of the ratio decidendi of the
case. Mr Dykes cited to us various authorities to suggest that if
public interest immunity attached at all, this could not be automatically
applied to the whole document. It was necessary, he contended, to go
through each part of the supporting affidavit to see whether public interest
immunity attached. These submissions, interesting and important though
they are, will have to await the decision of the Court of Final Appeal. I
might perhaps add that even if Mr Dykes were right in his submissions,
having read the affirmation in support of the section 85 application, I
think it is abundantly clear that public interest immunity should attach to the
whole of it in the present case.
48. I have already in paragraphs 3 to 9 above set out
the factual background to the application for the search warrants by the
ICAC. They reveal, I emphasize, an extremely troubling scenario whereby
the well-being or life of the Participant in a witness protection programme may
have been put at risk and the integrity of the programme potentially
undermined. At the very least, the Participant’s further co-operation in
the criminal investigation could have been compromised. I cannot imagine
that any responsible person could regard this situation as anything other than
a serious one.
49. The critical question on the facts is : was
it justified for search warrants to have been issued? In my judgment, it
clearly was : -
(1) Hartmann J was of the view that the only condition that merited
consideration was the requirement in section 85(5)(c) that the making of a section 84 application
“may seriously prejudice” the ICAC’s investigation. He must therefore
have accepted implicitly that the other conditions were satisfied. I
agree with the Judge’s analysis in this respect. Subject to one aspect to
which I shall return, Mr Dykes appeared also to be content in this regard.
(2) Having read the affirmation in
support of the ICAC’s application, I find myself in no
doubt whatsoever that had the ICAC made a section 84 application, this may have (if not would have) seriously
prejudiced their investigations. Although it is not appropriate to
reveal the contents of the affirmation, I can, however, highlight some of the
factual aspects of the case already dealt with in paragraphs 3 to 9 above. One aspect of the suspected
conspiracy to pervert the course of justice offence was the possibility that
the leaking of information concerning the Participant to the press may have
been for motives which may not be innocent or inadvertent. The leaking of information to the press had the effect,
desired or not, of revealing the identity of the Participant, thus potentially
putting the well-being of this person at risk and possibly – one knows not –
of undermining her willingness to continue with such co-operation as she may
wish to render. The 1st Respondent, like some other newspapers, published in great
detail the identity of the Participant. If there has been a conspiracy, then it would follow that
these newspapers were vehicles for it and became themselves the target of
investigations in relation to section 17
of the WPO. I have earlier referred to the
concession by counsel for the ICAC in the hearing before Stone J that the newspapers have not “knowingly” been complicit in the alleged
conspiracy. At most they had been “unwittingly” used. There is no reason to think otherwise on the evidence
before this Court but the fact remains that the press has been used in a
potentially most damaging way to the Participant as part of a suspected
conspiracy to pervert the course of justice.
(3) Hartmann J regarded it determinative of the application the fact that
there was no evidence to suggest that there was a real risk of the Respondents
destroying or concealing the journalistic material, if they had been pre-warned
of the ICAC’s wish to see that material. He failed “utterly” to see how
this was or could be demonstrated on the facts.
(4) With respect to the Judge, I think
he has taken too narrow a view of the matter. Those factual aspects I have just set out were before the
Judge and they revealed as I have said a very disturbing state of affairs not
to mention the possibility of very serious criminal offences having been
committed. Given the link between the
newspaper (and their journalists) and those persons who supplied the
information about the Participant to them, the Judge ought to have gone on to
consider the very real possibility that had a section 84 application been made or the newspaper had otherwise been
informed of the ICAC’s wish to investigate the suspected
perpetrators of the alleged conspiracy, those very people would or might well
then have been alerted by the newspapers or journalists, perhaps quite
innocently, to the fact that the authorities were onto them. It may here be observed that once a section 84 application is made, there is nothing in the relevant
statutory provisions to prevent a journalist from revealing this fact or the
information used to support it to colleagues, friends, his readers or to the
sources themselves. Further, and importantly, by reason
of the requirement to serve on the other party the supporting evidence when
making a section 84 application (see O.118 r.3), the
Respondents would also have been alerted to the state of the investigation with
all its details, with the added risk that this information might find its way
to the suspected perpetrators of the alleged conspiracy. This aspect is clear from the affirmation in support. It refers (as indeed counsel referred in the hearing before
Hartmann J) to “the sensitivity of the matter” and the need to preserve “the confidentiality of the investigation”. These were the aspects, I believe,
that must have ultimately persuaded Stone J to have issued the search warrants. Whilst I agree with the Judge that it is not to be assumed
that a journalist will seek to thwart an investigation, it has to be recognized
that an investigation may be thwarted even unintentionally and further that the
legislature has itself assumed, by the very act of legislating as it has, that
the efficacy of an investigation may be put at risk by service of papers on a
journalist.
(5) Both Stone J and Hartmann J were sensitive to the aspect of
the freedom of the press in this case and rightly so. Fundamental rights are to be broadly construed and
respected. However, on occasion, the enjoyment
of such rights must be balanced against the rights and interests of other
persons or society as a whole. The present case involves just such
a balancing exercise. The freedom of the press in the
present case must be seen against the fact that serious crimes may well have
been committed, one in which the Respondents (one of course has to assume
innocently at this stage) have been caught up; the other in respect of which
there is prima facie evidence against the Respondents themselves (the section 17 offence).
50. I mentioned in paragraph 49(1) above one
reservation that the Respondents had in relation to the question whether the
ICAC had fulfilled the necessary requirements to obtain a search warrant under
section 85. It is this and it relates to locus standi. In
order for a section 85 application to be mounted, the Applicant must have
the necessary locus standi to do so, meaning that he must by virtue of some
other enactment have the power to search and seize anyway : - see
sections 83, 85(1) and (4) of IGCO. The number of possible
Applicants is therefore restricted. The ICAC and the police are covered,
as are the Immigration Department and the Customs and Excise Department.
In the present case, one must therefore look at the extent of the powers of
search and seizure of the ICAC.
51. Here, Mr Dykes referred to the power of arrest
contained in section 10 of ICACO and made the point that since that
provision did not allow the ICAC to make an arrest in relation to offences
under section 17 of the WPO, it had therefore to follow from this that
there was no power to search and seize in relation to such an offence.
Accordingly, the ICAC had no locus standi to apply for a search warrant under
section 85 in relation to the section 17 offence. Reference was
made to sections 10(1), (2), (5) of ICACO. While the offence of
perverting the course of justice was expressly named in section 10(5) as
an offence for which an arrest could be made by the ICAC if it arose in the
course of an investigation into a suspected offence under the POBO, a
section 17 offence was not.
52. In my view, the ICAC did have the necessary locus
standi to apply for the search warrants in the present case : -
(1) It is clear from the affirmation
made in support of the section 85 application that in the course of
the ICAC’s investigations into a suspected
offence under POBO, other offences were disclosed (these being the conspiracy
to pervert the course of justice and a section 17 offence) : - cf section 10(2) of ICACO.
(2) The Respondents were suspects in
relation to the section 17 offence though not for the
conspiracy offence. The section 17 offence, though not one that is named in section 10(5) of POBO, is however suspected to be connected to the
offence under POBO under investigation : - cf section 10(2)(a).
(3) Accordingly, the section 17 offence was one which by reason by section 10(2)(a) (which is an alternative to what is set out in
section 10(2)(b)), the ICAC could effect an arrest and therefore exercise
powers of search and seizure.
Conclusion
53. By reason of the conclusion reached by me on Issue 1,
this Court has no jurisdiction to hear the present appeal and this appeal must
therefore be dismissed. However, it will be clear from my views on the
other issues that had this Court possessed the necessary jurisdiction, the
appeal would have been allowed with costs. This would have been on the
basis that first, the Judge had no jurisdiction under O.32 r.6 to deal with a
setting aside application and secondly, in any event, the issuing of the search
warrants by Stone J was entirely justified (and nothing material emerged
thereafter to dictate a different result). I wish further to state that I
am satisfied that the ICAC acted entirely lawfully in seeking the search
warrants in this case. They did no more and no less than they were
entitled by law to do. Had we had jurisdiction, we would simply have set
aside the Order of Hartmann J dated 10 August 2004. There
would have been no point remitting the section 87 application to be heard
given the fact that the relevant journalistic material have now been made
available to the ICAC.
54. The appeal is dismissed, but this is as a result of my
conclusion on this Court’s jurisdiction, not because of my views on the merits.
55. As for costs, while it is true that the appeal is
dismissed, the point on jurisdiction was raised late in the day and, given my
conclusion on the other issues in the appeal, I would for my part make an order
nisi as to costs that each side is to bear its own costs.
56. Finally, I wish to express my gratitude to counsel on
both sides for their valuable and helpful submissions.
Hon Stuart-Moore V-P :
57. I agree.
Hon Stock JA :
58. I agree with the judgment of the Chief Judge and there
is nothing I wish to add.
(Geoffrey Ma)
Chief Judge CJHC |
(Michael Stuart-Moore)
Vice-President |
(Frank Stock)
Justice of Appeal |
Mr Gerard McCoy, SC, Mr Kevin P Zervos, SC, DDPP(Ag) and Mr
Ned Lai Ka Yee, instructed by the Department of Justice for the
Applicant/Appellant
Mr Philip Dykes, SC and Mr Victor Dawes instructed by Messrs
Wilkinson & Grist for the 1st and 2nd Respondents/Respondents
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