CHAU FOO CHEONG SIDNEY v. COMMISSIONER OF THE INDEPENDENT COMMISSION AGAINST CORRUPTION

HCMP 2268/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2268 OF 2013

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JUDGMENT

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Introduction

1.  Chau Foo Cheong Sidney (“Chau”) had his documents seized by the officers of The Independent Commission Against Corruption (“the ICAC”) in the course of a home search on 25 June 2013 (“the 2^nd Search”). He commenced these proceedings by his Originating Summons dated 5 September 2013[1] to apply for the return of the documents claiming legal profession privilege (“LPP”).

2.  The ICAC opposes this application on two grounds, namely, (1) the documents seized are not subject to LPP and/or (2) in any event, Chau by his and/or his agents’ conduct already waived LPP. These are the two principal issues calling for my resolution.

3.  Chau has been at all material times represented by Messrs. K.C. Ho & Fong (“KCHF”) and Mr Ho Wai Fung (“Ho”) has been the handling solicitor. Mr Leung To Keung (“Leung”) was, and still is, an investigating officer of the ICAC. Leung conducted the 2^nd Search and, among other things, seized the documents. Mr Pang Wai On Robert

(“Pang”), chief investigator of the ICAC, has been in charge of the overall investigation in respect of Chau.

4.  All Chau, Ho, Leung and Pang filed their respective affidavits/affirmations in these proceedings. By the order of Au Yeung J dated 9 January 2014, all of them were required to attend the substantive hearing of the Amended OS for the purpose of cross-examination.

5.  Therefore, all of them except Pang testified orally in addition to their affidavit/affirmation evidence. As explained below, there were no significant factual disputes and the two issues identified can be resolved mainly on undisputed and/or indisputable evidence.

Undisputable/Indisputable Background Facts

6.  Chau worked for the Hong Kong Police Force for 34 years (from 1970 to 2004) and his last position was Senior Assistant Commissioner of Police in command of all police training. He left the police force and undertook a project to provide security services at the new airport to be opened in 1998. To this end, the HKSAR Government set up a private company called the Aviation Security Company Limited (“AVSECO”) and Chau was seconded to be in charge of AVSECO as General Manager overseeing its operational side.

7.  Chau first got into trouble with the authorities on 13 June 2013 when the ICAC arrested him at his residence at Tai Hang, Hong Kong (“the Premises”). On that occasion, Leung took part and executed a search warrant in respect of the Premises. Chau called Ho for assistance but Ho was not immediately available. The ICAC searched the Premises (“the 1^st Search”) and in the end, Chau voluntarily handed over certain documents to Leung and the latter seized the same pursuant to the search warrant.    

8.  At the time of the arrest, Chau was explained that he was alleged to have contravened certain provisions under the Prevention of Bribery Ordinance, Cap. 17 and the common law (“the 1^st Batch of Allegations”). On 15 June 2013, after a video recorded interview at the ICAC Headquarters which Ho also attended on the previous day, Chau was released on bail. For the purpose of this Judgment, I do not think it is necessary to go into any detail of the 1^st Batch of Allegations.

9.  Leung compiled an operation log to make a detailed record of the events taking place on 13 June 2013 relating to Chau.

10.  In the late morning of 25 June 2013, the ICAC executed another search warrant at the Premises in the presence of Chau and hence the 2^nd Search was conducted. On this occasion, fresh allegations were levied on Chau (“the 2^nd Batch of Allegations”). Again it is not necessary to go into any detail of the 2^nd Batch of Allegations here. Suffice it to say none of them was related to any of the 1^st Batch of Allegations. Chau called Ho and asked him to assist. On the other hand, at the living room, inside a briefcase there were found two sets of documents. Some of them contained handwritten notes and some were mere photocopies. In the absence of any objection on the part of Chau, Leung seized such documents (“the Subject Documents”) among other documents and marked them as CFC/H1/6 in a seizure list dated 25 June 2012.

11.  Chau was again brought to the ICAC Headquarters and had a video recorded interview with the assistance of Ho in that afternoon (“the 2^nd Interview”). Ho arrived with a trainee solicitor of KCHF, namely, Mr Ray Chan. During the interview, the seizure list was shown to Chau and so were the contents thereof including the Subject Documents. From the transcript of the interview, it can be seen that Chau was not forthcoming and refused to give answers to most of the questions. At the end of the 2^nd Interview, Chau explained to Leung that he and his legal advisors were working on a voluntary statement to be submitted to the ICAC.

12.  After the 2^nd Interview, Chau and his legal advisors stayed at the ICAC Headquarters briefly and then they left for the office of KCHF for private discussion at 4:17 p.m..

13.  Leung also compiled an operation log (“the Operation Log”) to make a detailed record of the events on 25 June 2013.

14.  On 21 and 26 June 2013, KCHF wrote to the ICAC to request for photocopies of certain documents seized during the 1^st Search. No mention was made about the Subject Documents.

15.  It was not until 28 June 2013 that KCHF claimed LPP in respect of the Subject Documents by way of a fax reaching the office of the ICAC at 5:48 p.m. There, it was asserted that the Subject Documents were Chau’s handwritten instructions to them and hence LPP attached to the Subject Documents. It was also emphasized that Chau had not given his consent for the disclosure of those documents. On that basis, KCHF requested for the return of the Subject Documents.

16.  By a letter dated 4 July 2013, the ICAC replied to the request of KCHF. It was pointed out that when the Subject Documents were seized at the Premises, Chau once contended that they were explanations intended for the ICAC but when he was interviewed at the ICAC Headquarters, he refused to comment on their contents. It was further pointed out that in their previous two letters, KCHF did not mention the Subject Documents at all. However, in the light of the request, the Subject Documents together with the disc containing the video-recording of the 2^nd Interview were put inside a sealed envelope while in the meantime the ICAC would take legal advice in respect of Chau’s claim of LPP.

17.  By a letter dated 5 August 2013, the ICAC advised KCHF that if they did not hear from them by 12 August 2013 for an arrangement to review the contents of the Subject Documents at the ICAC premises to establish LPP, the ICAC would open the sealed envelope to examine the Subject Documents.

18.  By a letter dated 9 August 2013, KCHF replied and reiterated that the Subject Documents contained written instructions given to them by Chau with their notes and remarks. They hence asserted that the Subject Documents were subject to absolute LPP and they were protected against disclosure by virtue of Article 35 of the Basic Law. They further made it clear that Chau had neither expressly nor impliedly waived LPP attaching to the Subject Documents.

19.  By a letter dated 20 August 2013, the ICAC advised that unless KCHF instituted legal proceedings by 27 August 2013 to establish their claim for LPP, the ICAC would proceed to open the sealed envelope and examine the Subject Documents. I note that the ICAC alleged no waiver, express or implied, in their last letter before this action.

20.  By a letter dated 26 August 2013, KCHF reiterated their position and the privileged nature of the Subject Documents. They indicated that counsel had been engaged for the preparation of their intended action to get back the Subject Documents in the event that they were not returned within 7 days thereof. They again stressed that Chau had not, wholly or partially, waived the LPP attaching to the Subject Documents.

21.  Given the refusal of the ICAC to return to KCHF the Subject Documents, the OS was issued on 12 September 2013. This completes the narrative of the background facts.

Analysis

Issue I: Whether LPP attaches to the Subject Documents?

22.  On this issue, it should first be noted that the ICAC adduced no evidence to support their contention. They have not read the contents of the Subject Documents, as shown in their correspondence. Mr Wong, for the ICAC, admits that he has not had any sight of the Subject Documents and hence is unable to make any submission on its contents from his personal knowledge.

23.  In his affirmation, Chau explained the circumstances under which the Subject Documents came into being as follows. After the 1^st Search, Chau sought legal advice from KCHF. He was advised against giving information to the ICAC lightly and that he should avoid providing information in any subsequent interviews with the ICAC as his immediate recollections could be flawed. Thus, KCHF advised him to submit a written document in the form of voluntary statement to the ICAC so as to assist their investigation.

24.  For their provision of legal advice to Chau and their preparation of the voluntary statement, KCHF asked Chau to compile a set of written instructions setting out the background of his employment at AVSECO and all the facts relating to the 1^st Batch of Allegations and all other background facts. Chau also expected KCHF to give him further legal advice on his written instructions so as to deal with the investigation by the ICAC against him.

25.  Chau eventually came up with the written instructions and he sent the same to KCHF. Ho went through the written instructions with Chau in some conferences and both he and Chau wrote certain comments and remarks on them. Ho further gave Chau legal advice on the written instructions. Finally, KCHF prepared the voluntary statement on the basis of the written instructions and the additional instructions taken from Chau during their discussion. Not all the matters stated in the written instructions were included in the voluntary statement after legal advice. The voluntary statement dated 1 August 2013 signed by Chau was finally submitted to the ICAC (“the Voluntary Statement”).

26.  KCHF keeps the original copy of the written instructions together with their handwritten notes and a copy of the same was returned to Chau. Chau placed them inside his suitcase at his Premises. The ICAC seized them during the 2^nd Search and they became the Subject Documents.

27.  Ho in his affidavit gave an explanation about the nature of the Subject Documents and it tallies with those given by Chau above.

28.  Leung in his affidavit stated that before the seizure of the Subject Documents, he asked Chau to explain to him their nature. Chau replied that the handwritten notes were prepared by him to refresh his memory of events relating to the 1^st Batch of Allegations and the notes would facilitate him to recall the events and explain the matters as he could not return to the office of AVSECO for the time being. Leung recorded this reply in the exact terms in the Operation Log.

29.  Chau points out that Leung’s record was incomplete as he also told Leung that he prepared the Subject Documents including the written instructions both at home and also at the office of KCHF. Leung denies this.

30.  I do not really think that this dispute has any materiality as to the dispute about very nature of the Subject Documents. In any event, I accept the evidence of Chau given the uncontradicted evidence of Ho relating to the creation of the Subject Documents. They were indeed prepared in both the home of Chau and the office of KCHF.

31.  On the other hand, I have no difficulties in accepting the evidence of Chau and Ho that the Subject Documents were prepared with a view to and in the course of the latter’s provision of legal advice. Both Chau and Ho appeared to be forthcoming in this regard and there is simply no contrary evidence. Neither of them was shaken under cross-examination in the slightest.

32.  Mr Wong highlights to me that Chau did not mention to the ICAC that they contained written instructions to KCHF on 25 June 203. Be that as it may, on the evidence of Leung, the Subject Documents as described by Chau to Leung, did serve such a purpose.

33.  There is no dispute about the law relating to LPP. Both parties rely heavily on Rockefeller & Co Inc v Secretary for Justice & Anor. [2000] 3 HKLRD 351. Godfrey VP had this say about LPP at p.360D:

“So far as legal professional privilege is concerned, this attaches, inter alia, to documents containing information passed by the lawyer to the client (or vice versa) as part of a process aimed at keeping both informed, so that advice may be sought or given: see the statement to that effect in the Supreme Court Practice 1999, Vol.1 at a man must be able to consult his lawyer in confidence”: see R v Derby Magistrates Court, ex p B [1996] AC 487, per Lord Taylor of Gosforth CJ at p.507.”

34.  Accepting the evidence of Chau and Ho in regard to the nature of the Subject Documents, I conclude that LPP as explained by Godfrey VP above does attach to the Subject Documents.

35.  Mr Wong urges me to, out of abundance of caution, inspect the Subject Documents in my privacy to determine whether LPP attaches to them. It is submitted that this was the course taken by Kaplan J in Shun Tak Holdings Ltd and Ors v The Commissioner of Police (1995) 1 HKCLR 48 where there was an allegation that the documents in questions came into being in the course of or in furtherance of criminal activity.

36.  I note that there is no similar allegation in the present case. Mr Cheung, and Mr Li, counsel appearing for Chau, agrees to the course suggested by Mr Wong. In the circumstances, I acceded to the request of Mr Wong and I unsealed the sealed envelope and inspected the Subject Documents after the hearing.

37.  I went through the Subject Documents on my own and I also referred to the Voluntary Statement supplied to me after the hearing. I am satisfied that the description of the Subject Documents given by Chau and Ho was truthful and correct. I see no reason why I should depart from my foregoing conclusion (§34 hereof) as to the nature of the Subject Documents.

Issue II: Any express or implied waiver of LPP?

38.  Both Chau and Ho disavow any intention and/or commission of any acts on their part to have waived the LPP so found in the Subject Documents. In fact, there is no suggestion let alone evidence that they have ever expressly told the ICAC that Chau would waive the LPP attaching to the Subject Documents.

39.  The case of the ICAC on the issue of waiver as submitted by Mr Wong can be summarized as follows:

(1) Given Chau’s 34 years of service in the police force, Chau should have a clear understanding of the concept of LPP;

(2) When the Subject Documents were seized by the ICAC during the 2^nd Search albeit in the absence of his legal advisors, Chau should have claimed LPP in respect of the Subject Documents but he did not;

(3) Ho had a 3-minute meeting with Chau in private before the 2^nd Interview (from 13:27 to 13:30 hours according to the Operation Log). Ho should have advised Chau that the issue of LPP in respect of the documents seized during the 2^nd Search;

(4) During the 2^nd Interview, the Subject Documents were indeed shown to Chau and Ho. Chau refused to disclose the whereabouts of their original copy. Both Chau and Ho did not make any claim for LPP though Ho admitted under cross-examination that the LPP issue did cross his mind briefly;

(5) After the 2^nd Interview, Chau and Ho were allowed to stay in a conference room in private in the ICAC Headquarters and they should have discussed the issue of LPP and made such a claim there and then; and

(6) It was only after 3 days that KCHF first claimed LPP and it was already too late. Any LPP had been waived by reason of the foregoing matters.

40.  Chau explained that though he had ample experience in the execution of search warrants throughout his career in the police force, he mainly dealt with hard crimes and did not come across any claim for LPP. He accepts he knows LPP but his knowledge is only skin deep. Hence, he was not alive to the issue of LPP when the Subject Documents were seized during the 2^nd Search, which was a total surprise to him.

41.  I accept his explanation though I note that Chau was in charge of police training and I would have thought that LPP should be a basic knowledge to be imparted to police officers. That said, I have no idea as to how much Chau should have learnt about LPP in the police force. In any event, during the 2^nd Search when he faced the 2^nd Batch of Allegations, I accept that it is possible that the issue of LPP did not spring to his mind under those circumstances.

42.  Ho and Chau testified that during the brief meeting before the 2^nd Interview, they did not talk about the Subject Documents and they just focused on the 2^nd Batch of Allegations. This is perfectly understandable and I accept their evidence as well.      

43.  I find nothing untoward about their performance during the 2^nd Interview in the light of the legal advice KCHF gave Chau after the 1^st Interview. It is understandable that Chau intended to tell the ICAC the minimum under caution during the 2^nd Interview as he had been advised that the Voluntary Statement would serve his purpose better.

44.  On the other hand, there is no evidence and it is not the case of the ICAC that Chau had ever given Ho instructions to waive LPP on his behalf prior to the 2^nd Interview. I cannot accept that the mere failure of Ho to claim LPP during the 2^nd Interview could amount to a waiver even if he did think about the issue of LPP briefly.

45.  I accept Ho’s evidence that they did not have any substantive discussion in the ICAC Headquarters after the 2^nd Interview. They waited to return to the office of KCHF to talk in depth about the new accusations. Ho also testified that in his office, he raised the issue of LPP and it was agreed that counsel opinion would be sought in that regard before any definitive action would be taken.

46.  Finally, I note that in the present case, Chau did not make an informed decision to surrender the Subject Documents to the ICAC of his own volition. Instead, the Subject Documents were seized by the ICAC pursuant to the search warrant and he was not really in a position to refuse the seizure on the spot.

47.  Mr Cheung pertinently refers to me the dicta of Hartmann JA (as he then was) in Citic Pacific Ltd v Secretary for Justice [2012] 2 HKLRD 701. After reviewing three English authorities, Hartmann JA said the following:

“48. While privilege may have had its origins as a rule of evidence founded in public policy, today it is recognised as a substantive legal right of particular importance to the due and just administration of justice.  Lord Hoffmann has described it as “a fundamental human right”: R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2003] 1 AC 563 at 606, a description cited with approval in a number of subsequent cases: see Phipson on Evidence 17 ed., [23-06].  That it is regarded as a fundamental human right in Hong Kong is witnessed by art. 35 of the Basic Law.

49. As a fundamental human right, privilege must, and does, guarantee the same measure of protection in criminal as well as civil matters; art. 35 makes no differentiation.

50. In B and Others v Auckland District Law Society and Another (cited in para 24 above), Lord Millett not only stated that the privilege is the same whether the proceedings are civil or criminal but said that, save in cases where the privileged communication is itself a means of carrying out a fraud, privilege is ‘absolute’.  It is therefore the position that privilege is not to be balanced against competing public interests no matter how compelling they may be: one such interest being the apprehension and prosecution of criminals.

51. That being the case, it seems to me to be inherently contradictory to say that privilege, although a fundamental human right unassailable to competing issues of public interest, may nevertheless be lost in criminal matters without any intention on the part of the holder, indeed on no more than a whim of fate; that is, by accident or inadvertence, or even (at the outer extreme) by the surreptitious conduct of a third party.  I do not accept that the Basic Law affords such frail protection.  I am satisfied that, in both civil and criminal matters, privilege is not lost unless there is evidence that it has been intentionally waived by the holder of that privilege.

52. Evidence of the intention to waive privilege may be inferred from all the circumstances. However, as a constitutionally guaranteed right, a “condition on which the administration of justice as a whole rests”: R v Derby Magistrates’ Court, ex parte B (cited above), that waiver will not lightly be inferred.”

48.  The case of waiver on the part of the ICAC is very thin indeed and the supportive evidence is tenuous to say the least. In the light of the foregoing dicta of Hartmann JA, particularly bearing in mind that waiver cannot be lightly be inferred, I come to the clear conclusion that Chau has never waived LPP in respect of the Subject Documents by his or Ho’s conduct, expressly or impliedly. The Subject Documents are very much subject to LPP and the ICAC should return the Subject Documents to Chau forthwith.

Conclusion and Orders

49.  I therefore accede to the application of Chau. However, as pointed out by this court during the hearing, the drafting of the terms of the OS as amended leaves much to be desired and Mr Cheung openly agrees to bulk deletion of a large part of the relief claimed. I order that the Subject Documents contained in the sealed envelope be returned to Chau by ICAC forthwith and as they are now in the possession, Chau do have leave to obtain the same from this court. KCHF should submit a draft order for this court’s approval.

50.  There is no reason why costs should not follow the event. I make a costs order nisi that the ICAC do pay Chau his costs of the Amended OS, subject to variation(s) by application(s) by summons to be taken out within 14 days from the date hereof.