APPLE DAILY LTD. v. THE COMMISSIONER OF THE INDEPENDENT COMMISSION AGAINST CORRUPTION

FAMV000002/2000

FAMV No. 2 of 2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 2 OF 2000 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV No. 357 OF 1999)

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Between:
APPLE DAILY LIMITED
Applicant
AND
THE COMMISSIONER OF THE INDEPENDENT COMMISSION AGAINST CORRUPTION
Respondent

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Appeal Committee: Chief Justice Li, Mr Justice Litton PJ, and Mr Justice Bokhary PJ

Date of Hearing: 28 January 2000

Date of Determination: 28 January 2000

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DETERMINATION

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Mr Justice Litton PJ:

Introduction

1. This application comes to us as a matter of urgency. The Court of Appeal, against whose judgment the applicant seeks leave to appeal,had stayed their order until 4.30pm on Wednesday 26 January. They then refused leave to appeal to the Court of Final Appeal, butstayed their order further to enable an application to be made to us. The solicitors and counsel concerned, to their great credit,have been able to put together the material at short notice for a hearing this morning. We have obtained much assistance from counsel,in particular Ms Gladys Li SC, who did not appear in the courts below. This has enabled us to give our determination speedily, whichI do so now on behalf of the Committee.

2. We are concerned on this application with the legality of acts of entry into and search of premises belonging to the applicant AppleDaily Ltd by ICAC officers in November 1999, and of the seizure and detention of material found on those premises. Entry was madeunder the authority of two warrants, one issued under s.17(1A) of the Prevention of Bribery Ordinance, Cap. 201 (“cap. 201”) and the other under s.85(3) of the Interpretation and General Clauses Ordinance, Cap. 1(“cap. 1”). Some of the material seized by the officers falls into the category of “journalistic material” as defined by s.82 of cap. 1; the seizure of such material is governed by special conditions as laid down in Part XII of cap. 1. The applicant says(1) that the entry into and search of the premises was unlawful and (2) that the seizure and detention of the material found on thosepremises was (and is) unlawful.

3. The matter has already been closely examined by two courts which unanimously came to the view that the legal challenge failed. Thequestion before us is simply whether, arguably, the lower courts have erred in law. Additionally Ms Li has raised for our considerationa fresh point not hitherto considered in the courts below.

The “defect” in the warrant

4. As mentioned earlier, the ICAC obtained, upon application made to Gall J, two search warrants, one pursuant to s.85 of cap. 1 and the other pursuant to s.17(1A) of cap. 201. There was however this problem: The warrant issued by Gall J under s.17(1A) authorized on its face an act beyond the scope of that section. That warrant purportedly authorized the named ICAC officers to seize and retain various things whereas the section allowed only entry into and search of the premises. This point was however picked up by the applicant’s solicitor who had attended upon the premises during the search,whereupon the officer in charge of the search produced his warrant card which indicated that he was expressly authorized by the Commissionerunder s.10C(1)(c) of the Independent Commission Against Corruption Ordinance, Cap. 204 (“cap. 204”) to seize and detain anything which he had reason to believe to be or to contain evidence of a corruption offence.Despite this, the applicant says that the seizure of the material found on the premises was unlawful, because the legal requirementsin Part XII of cap. 1 in relation to journalistic material have not been complied with.

The restrictions regarding journalistic material

5. The search and seizure of journalistic material is governed by Part XII of cap. 1. The warrant as issued by Gall J under s.85(3)of cap. 1 on its face authorized the named officers to search for and seize material including journalistic material:

“which is likely to be relevant to the investigation for the purpose of which this search warrant is issued.”

6. It is said by counsel that this is too wide, rendering the warrant void in law. As Ms Li puts it, s.85(3) is parasitic; it cannotstand on its own; it merely enlarges the scope of the underlying Ordinance authorizing search and seizure to include journalisticmaterial; and when one turns to those statutes, one sees that, in essence, what the officers are permitted to do relates to thingslikely to be or contain evidence of an offence, not things “likely to be relevant to the investigation”.

7. However, when Ms Li was challenged in the course of argument as to the practical consequences of the difference in the wording, shewas unable to demonstrate any. The reality is that things found by the officers during a search which are relevant to the investigationwould most probably be also evidence of a relevant offence. As Keith JA in his admirably comprehensive judgment said :

“If the language of section 10C(1)(c) permitted the Commissioner to authorise his officers to seize documents which they have reason to believe might assist in determiningwhether an offence of bribery under section 4 of the POBO has been committed and if so by whom, that is no different, in practical terms, from an authority to seize documentswhich are likely to be relevant to the investigation of an allegation that such an offence has been committed.”

8. The powers conferred by s.85(3) contain extensive safeguards: One of the conditions to be fulfilled before the judge can issue thewarrant is that he must be satisfied that there are reasonable grounds for believing that the material on the premises is likelyto be of substantial value to the investigation or constitutes relevant evidence in proceedings for the offence: s.84(3)(a)(iii).Inevitably, in the course of a search, there would be material seized which, on further examination, is found to be irrelevant: Plainly,the statute allows for this possibility. The intention of the legislation is to give officers executing warrants some latitude. Thefine-tuning implicit in the applicant’s argument is wholly inconsistent with the statutory scheme regulating searches under PartXII of cap. 1, viewed as a whole.

The fresh point

9. The fresh point raised by Ms Li boils down to this: Nothing suggests that in issuing the s.85(3) warrant the judge had in mind s.10C(1)(c) which is the underlying authority for the seizure of material found inside the premises; the judge therefore could not have authorizedby that warrant the seizure and detention of journalistic material. With respect to Ms Li this argument is plainly unsound: The s.85(3) warrant as issued expressly authorizes the seizureand retention of journalistic material, the judge having been satisfied, as the warrant says, that the various conditions laid downin Part XII have been met. The law does not require the warrant to recite the further fact that the officers, having lawfully gainedentry, proposed to exercise their power of seizure under s.10C(1)(c). The judge could not have been ignorant of the fact that the officers had such power.

Additional points

10. It is unnecessary to deal with points 2 and 3 in the notice of motion. These are subsidiary points that call for no detailed analysis.

Conclusion

11. In our judgment the Court of Appeal has clearly come to a correct view of the law. The contrary is not arguable.

12. This application is dismissed, with costs.

(Andrew Li) (Henry Litton) (Kemal Bokhary)
Chief Justice Permanent Judge Permanent Judge

Representation:

Ms Gladys Li, SC and Mr Peter Duncan (instructed by Messrs Deacons Graham & James) for the Applicant

Mr Kevin Zervos, SADPP and Mr J To, SGC (of the Department of Justice) for the Respondent