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

CACV000357/1999

CACV 357/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 357 OF 1999

(ON APPEAL FROM HCMP 7315/1999)

IN THE MATTER of an application by the Commissioner of the Independent Commission Against Corruption, Ex parte Apple Daily Limited,for a search warrant pursuant to Section 85 of the Interpretation and General Clauses Ordinance, Cap. 1

and

IN THE MATTER of an application by the Commissioner of the Independent Commission Against Corruption, Ex parte Apple Daily Limited,for a search warrant pursuant to Section 17(1) of the Prevention of Bribery Ordinance, Cap. 201

BETWEEN
APPLE DAILY LIMITED Appellant
AND
THE COMMISSIONER OF THE INDEPENDENT COMMISSION AGAINST CORRUPTION Respondent

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Coram: Godfrey, Rogers & Keith JJ.A.

Date of Hearing : 15 December 1999

Date of Judgment : 15 December 1999

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J U D G M E N T

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Godfrey, J.A. :

Introduction

1. This is an application for interim relief made by Apple Daily Limited (“Apple”) in proceedings it has brought against the Commissionerof the Independent Commission Against Corruption (“ICAC”). The proceedings below have been the subject of a ruling adverse to Appleby Lugar-Mawson, J. and the nature of the case (the right or otherwise of ICAC to seize and inspect documents of Apple) is such thatit is agreed on both sides that it would be appropriate to expedite the hearing of Apple’s appeal against the judge’s ruling in ICAC’sfavour. Arrangements have now been made for that appeal to be expedited, and it will be listed for hearing on 4 January 2000 beforeChan, C.J.H.C., Nazareth, V-P and Keith, J.A. At the moment, an order of Chan, C.J.H.C. made yesterday precludes ICAC from havingaccess to the seized documents.

The present question

2. The question for us is whether, until after judgment in the appeal, the status quo ought to be preserved, or whether the strengthof ICAC’s case is such as to necessitate its being allowed to inspect these documents even before the hearing of Apple’s appeal.

ICAC’s argument

3. Mr. McWalters for the ICAC, in a succinct and helpful argument, has submitted that we should refuse Apple any further interim relief.He suggests that these proceedings are, in some respects, analogous to criminal proceedings; for example, proceedings in which aconvicted defendant seeks bail pending an appeal. In such a case, the defendant has to get over the first hurdle, that he must showa good chance of success in his appeal, and then get over the second hurdle, of persuading the judge to exercise his discretion infavour of granting bail.

4. For my part, I do not see the matter in quite that way. As it seems to me, we ought to approach the present problem as we would approachthe problem in civil proceedings generally. That is to say, we should look to see whether, if the status quo is not preserved, theresult would be to render the appellant’s appeal nugatory, because what he seeks to obtain on the appeal would have been destroyedby a failure to preserve the status quo.

5. ICAC has rightly argued that the appeal dictates consideration of competing interests which have to be balanced. On Apple’s side,there are Apple’s private interests; in addition, there are public interests, relating to freedom of the press and freedom of expression.On ICAC’s side, there is a public interest in the prompt investigation and punishment of corruption. The case is not, as ICAC rightlypoints out, the same as it was on previous hearings, for it now has the benefit of a judgment below in its favour on the substantiveissues. The time has now come, says ICAC, for the court to allow it to inspect the documents.

The facts in support of the ICAC’s argument

6. The ICAC’s investigation into the instances of corruption within the police force which it is investigating is being, it says, “seriouslyimpeded”. The denial of access to documents, etc. which it has seized at Apple’s premises is “seriously undermining” its abilityto investigate these matters. Further delay, it says, is not justified.

The evidence

7. ICAC’s evidence on this application consists of an affidavit sworn on 14 December 1999 by Anthony Alan Godfrey, an Assistant Directorwith the ICAC. The deponent refers to the investigation which I have mentioned, describing it as :-

“… an investigation into the allegation that certain employees of Apple Daily Limited had been paying bribes to Police CommunicationsOfficers and Police Officers under the employ of the Hong Kong Police Force as a reward for them unlawfully releasing confidentialpolice data and intelligence to which they have access.”

8. He deposes that a number of documents and articles have been seized by ICAC at the premises of Apple for the purpose of their investigation,and deposes :-

“4. … Such seized documents included the following :-

(a) witness statements recorded by police;

(b) police situation reports;

(c) police crime reports;

(d) photofit of a person believed to be involved in a police investigation; and

(e) other classified police documents.

5. Accounting documents believed to contain evidence of corrupt payments were also seized.”

9. He further deposes that he has been informed by officers who conducted the search at Apple that due to various circumstantial constraints,the data contained in the two seized computers was not examined there and then. (Mr. McWalters has indicated that this raises a specificproblem because of the concerns which have been widely expressed that, at the turn of the century, much data stored on computersmay be lost. That is a factor which should be taken into account.)

10. When it comes to the necessity for releasing the material to the ICAC even before the hearing of the appeal, the deponent gives thesereasons for doing so. He says :-

“The withholding access to these seized documents gives the suspects involved in this criminal enterprise :-

(a) more time to cover their tracks;

(b) to interfere with evidence; and

(c) to possibly pervert the course of public justice.”

But these matters have now been under consideration by the court for some time and, as it seems to me, the rogues who are said tohave been guilty of the alleged corruption would have already had ample time to do all those things. The additional time betweennow and 4 January 2000 has not been shown to give them any further opportunity to do what they have not had plenty of time to doalready.

Conclusion

11. I come back, then, to the “difficult balancing act” (to use Mr. McWalters’ words) which we have to perform. Of course, ICAC is inan unsatisfactory position. It is being impeded in its investigation by the interim relief granted by the court in these proceedingsto preserve the status quo, pending first the hearing before Lugar-Mawson, J. and now pending the hearing of Apple’s appeal fromhis ruling. We have to give proper weight to that (and, of course, to the importance of the work which the ICAC has done in the past,is doing at present and, no doubt, will be doing in the future, in the public interest to protect Hong Kong against corruption).

12. All those matters are of very considerable importance. Against that, we have to weigh Apple’s legitimate concern that its appeal(which seems to have, at any rate, an arguable chance of success) will be rendered useless (since it is concerned with attackingthe validity of search warrants which have led to the seizure of the documents) if the documents are, in fact, released to ICAC beforethe hearing of Apple’s appeal.

13. Doing the best I can to perform this “difficult balancing act”, I conclude that the balance comes down in favour of Apple. I would,therefore, be in favour of granting interim relief to Apple (the exact form of which we will discuss with counsel after giving judgment)pending the determination of its appeal.

Rogers, J.A. :

14. I agree.

15. I only wish to say that, for my part, this decision does not indicate any consideration that the work of the ICAC is not of the utmostimportance but, in this case, by reason of the way this matter has come to this Court, the facts behind this case are so little knownby this court that we can only approach the matter on general principles.

16. The general principle here is that the appeal should not be rendered nugatory unless there are clear and compelling reasons why thatshould be so. I do not consider that there are clear and compelling reasons which have been made out which would so indicate. Thesealing up order should thus remain until the appeal has been disposed of.

Keith, J.A. :

17. I agree with both of the judgments which have been delivered and there is nothing which I can usefully add.

(Gerald Godfrey) (Anthony Rogers) (Brian Keith)
Justice of Appeal Justice of Appeal Justice of Appeal

Representation:

Mr. Philip Dykes, S.C. and Mr. Peter Duncan instructed by Messrs. Deacons Graham & James for the Appellant

Mr. Ian McWalters, SADPP and Mr. J. To, SGC of Department of Justice for the Respondent