CHAN MEI YIU, PADDY AND ANOTHER v. SECRETARY FOR JUSTICE AND OTHERS

HCAL 16/2007
HCAL 17/2007
HCAL 18/2007
HCAL 19/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

          CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
          NO. 16,17, 18, 19 OF 2007

          (Heard Together)

        ____________

HCAL 16/2007

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HCAL 17/2007

BETWEEN

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HCAL 18/2007

BETWEEN

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HCAL 19/2007

BETWEEN

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Dates of Hearing: 21 & 22 June 2007

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J U D G M E N T

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Introduction:

1.  These are judicial review proceedings in which the Applicants challenge the decision of a magistrate is sitting at Eastern Magistracy, on 16 January 2007, to issue certain search warrants pursuant to the provisions of the Mutual Legal Assistance in Criminal Matters Ordinance, Cap 525, (the Ordinance).

2.  The substantive application for judicial review will involve the determination of the following main issues:

(i)      Whether the letter of request from the Republic of Italy to Hong Kong contains misrepresentations or omissions that may have operated in the mind of the magistrate when he decided on the applications for the search warrants, on the basis of informations prepared by reference to the letter of request;

(ii)     Whether there was such material non-disclosure in the applications for the search warrants that the magistrate issued them erroneously and not according to law;

(iii)    Whether the terms of the search warrants were too wide;

(iv)    Whether the execution of the search warrants in each of the four named premises was unlawful;

(v)     Whether the documents to which legal professional privilege is claimed had been seized, and if so, whether they should be return.

3.  Now, in the course of the judicial review proceedings the Applicants seek the discovery of two documents:

(a)     the letter of request from the Public Prosecutor of the Milan Court of the Republic of Italy to the Government of the Special Administrative Region of Hong Kong seeking mutual legal assistance;

(b)    the informations laid before the magistrate in support of the application for the search warrants.

The argument for the Applicants is that these documents are relevant to the first two arguments to be made, (para 2(i) and (ii) above), and will go to establish the misrepresentations, omissions and material non-disclosures alleged by the Applicants.

Discovery in judicial review proceedings:

4.  The present law in Hong Kong as to discovery in judicial review proceedings is drawn from a decision in 1991.  Discovery is not automatic in judicial review proceedings.  The party seeking discovery must show that the order sought is necessary either for disposing fairly of the matter, or for saving costs: see Au Shui Yuen Alick v Sir David Ford, Deputy to The Governor & Ors [1991] 1 HKLR 525.  The weight of that burden on the applicant was demonstrated in that case, where Kaplan J. held that it was not sufficient simply to show that the documents were relevant or that production was desirable.

5.  The concept of discovery in judicial review proceedings has advanced since 1991.  I accept Mr McCoy’s submission that the modern approach to discovery in judicial review proceedings in the United  Kingdom is more liberal than in the past.  The approach now adopted there is described in the headnote to Tweed v Parades  Commission for Northern Ireland [2007] 2 WLR 1 HL in these terms:

“…the courts should now adopt a more flexible, less prescriptive approach and judge the need for disclosure on the facts of the individual case; that since the proportionality of a decision restricting a protected Convention right would, on the substantive application, call for careful factual assessment in the context of the relevant margin of appreciation, the court, on a disclosure summons, would take account of those factors when considering whether to make the order sought;” (the emphasis is Mr McCoy’s).

6.  The entitlement of an overseas authority to obtain a search warrant in Hong Kong is dependent upon compliance with the legislative scheme as set out in the Ordinance.  The issue of a search warrant may impact, as it has here, on the rights of a Hong Kong resident.  Consequently, due regard must be had to Article 28 of the Basic Law which protects Hong Kong residents from arbitrary or unlawful search.

7.  Before the magistrate can issue the search warrants, he must be satisfied that there are reasonable grounds to issue the warrants.  In the present case he must be satisfied that there are reasonable grounds to say that there is a prosecution or a continuing investigation that has commenced in Italy involving external serious offences relating to fraud, false-accounting, misappropriation and money laundering.  If in fact the prosecution or the continuing investigation that has commenced in Italy does not involve such external serious offences as are alleged, or the offences being investigated do not fall within the definition of external serious offences, then there may be no jurisdiction upon which the magistrate could issue the search warrants. 

8.  The Ordinance defines an external serious offence as an offence the maximum penalty for which is death, or imprisonment for not less than 24 months.

9.  In the normal run of cases, in the absence of evidence to the contrary, it is likely that there will be nothing to establish that the legislative scheme has not been properly followed.  Mr Walsh is quite right when he says that the Applicants cannot seek discovery in the hope that it will produce materials that will afford them with better arguments and will help justify their challenge: Law Sze Yan v Chinese Medicine Practitioners Board of the Chinese Medicine Council of Hong Kong, (unreported, 28 October 2005, HCAL 41/2005).  A mere assertion by an applicant that he suspects that there may have been some relevant flaw in the procedure will not be sufficient to entitle him to an order for discovery in relation to the letters of request, or the Information placed before the magistrate.  But where there is evidence that tends to indicate that there has been some relevant flaw in the procedure, the court will be more likely to grant an order for discovery of the documents.

10.  I have come to the view that Tweed represents an advance on the law on discovery in judicial review cases, and that the approach set out in paragraph 5 above is the more appropriate approach, rather than the imposition of the strict and heavy burden on the applicant required by Au, to establish not only that documents were relevant or desirable, but that they were necessary to dispose fairly of the matter.  The flexible approach laid out in Tweed enables the court to balance a refusal of disclosure, a decision which would potentially restrict Basic Law rights, against the risk of any real damage being caused to the proper administration of justice, including the investigation of serious offences, by disclosure.

The reason for discovery in this case:

11.  At the centre of the external offences, the subject of the warrants, is the conduct of a man named Farouk (Frank) Agrama.  Mr  Agrama has been the subject of the search procedures commenced pursuant to letters of request in Los  Angeles, California, United States of America, and Dublin, Republic  of Ireland.  Those search procedures relate to the same set of offences as are the subject of the letter of request to Hong Kong.  In both of those jurisdictions Mr  Agrama challenged the issue of the search warrants. 

12.  In Los Angeles, following the exchange of affidavit evidence and written briefs, consequent upon an application by Mr Agrama for the return of “unlawfully seized property”, the Government of the United States withdrew its opposition to the application, and returned all seized materials.

13.  I have before me, as part of the evidence, the letter of request for the search warrants issued by the Italian prosecutor to the Californian authorities.  As a result of that letter of request, search warrants were issued pursuant to the mutual legal assistance legislation in California.  I have also, again as part of the evidence, an affirmation by Roberto Pisano, a licensed attorney in the Republic of Italy.  That affirmation was filed in the proceedings commenced by Mr Agrama in Los Angeles.  The affirmation sets out what Mr Pisano believes to be certain inconsistencies, misstatements and omissions in an affidavit filed by an FBI agent in the proceedings.  It also sets out what Mr Pisano believes to be misrepresentations of witness statements which were referred to in the FBI agent’s affidavit. 

14.  An examination of the affirmation arguably demonstrates inconsistencies, misstatements and omissions contained in with the letter of request which formed the foundation for the California warrants.

15.  I also have before me, again as part of the evidence, the letter of request issued by the Italian prosecutor to the Irish authorities.  As a result of that letter of request the Irish authorities commenced search procedures pursuant to Irish legislation.  There, the search procedure is the subject of an extensive letter from solicitors for Mr Agrama, addressed to the Chief State Solicitor in Dublin.  The letter from the solicitors sets out what the solicitors suggest are a number of matters which are “seriously misleading” resulting in the search being procured by “an abuse of the process envisaged by the European Convention on Mutual Assistance in Criminal Matters”.  The letter mirrors, and expands upon the matters raised in the affidavit of Mr Pisano, filed in California.  The letter, which was sent on 29 May 2007, is presently being considered by the Chief State Solicitor, and the outcome has not yet been resolved.

16.  There is no reason to suggest that the letter of request from the Republic of Italy, to Hong Kong, which stimulated the application to the magistrate for a search warrant, significantly differs from those used in both California and Ireland.  Mr Walsh sensibly acknowledges that in the light of the information before the court, that is the California and Irish letters of request, and the responses by way of affidavit and letter raising issues as to those letters of request, it cannot be said that the Applicants, in seeking to see the letter of request in this case on a mere fishing expedition.

17.  It is upon the basis that the alleged misrepresentations and material nondisclosures identified in both California and Ireland are likely to have been present in the Hong Kong letter of request, that the Applicants seek disclosure of the letter of request.

Confidentiality:

18.  The right to confidentiality in relation to a letter of request arises first from the provisions of the Ordinance.  By s 8(1), a request by a place outside Hong Kong to Hong Kong for assistance in a criminal matter may be made to the Secretary for Justice.  Under s 8(2)(e), an applicant for assistance is entitled to include a statement setting out his wishes concerning the confidentiality of the request and the reason for those wishes. 

19.  Mr Walsh says that the letter of request contains the appropriate request for confidentiality.  A request for confidentiality is contained in the California letter of request, although no reason is given for confidentiality.  There is no request for confidentiality in the Irish letter of request.  At Mr Walsh’s suggestion I have read the letter of request in the present case and I am satisfied that it contains an appropriate request to be kept confidential and that appropriate reasons for that request are set out.

20.  I am informed by Mr Walsh that following the request by the Applicants for disclosure of the letter of request an enquiry was made to the Italian authorities to see whether or not they objected to disclosure.  Mr  Walsh says that they did so object.  On its face, that may be surprising bearing in mind that the California and Irish letters of request have been disclosed, and that the Irish letter of request did not contain a request for confidentiality.  Subsequent to the hearing, at Mr McCoy’s request, and with my encouragement, an affidavit confirming Mr Walsh’s statement from the bar as to the objection by the Italian authorities to the disclosure of the letter of request, has been filed.

Disclosure of a letter of request:

21.  Mr Walsh founded his opposition to the disclosure of the letter of request on the basis of a claim for public interest immunity, (PII).  In my view however, it is not necessary to go that far to justify opposition to the disclosure. 

22.  The modern law in England is clear: in relation to disclosure of a letter of request, the starting position is that a letter of request is a confidential document and not disclosable: see R (Evans & Anor) v Director  of  the  Serious Fraud Office [2003] 1 WLR 299.  Where the needs of justice, to give appropriate protection to fundamental rights, can be met by giving information as to the nature of the criminal investigations, that will be sufficient, however where justice can only be done by disclosure, disclosure may be ordered.

23.  Thus it is necessary for the court to examine the particular circumstances of the case.  If the court is of the view that the particular argument to be mounted may be satisfactorily mounted following the giving of information as to the nature of the criminal investigations the subject of the letter of request, then there will be no disclosure.  If, on the other hand, the court comes to the view that the mere giving of information, as against disclosure of the letter of request, would not be sufficient to enable justice to be done, then there is more likely to be disclosure of the letter of request.

Should there be disclosure in this case:

24.  In the present case Mr Walsh relies upon two affidavits to assert that there has been sufficient information supplied by the Government, to enable the argument as to misrepresentations, omissions and material non-disclosures to be made.

25.  The first, is the affidavit of Detected Senior Inspector Leung.  It is convenient to set out the extent of the information disclosed.

“The request from Italy

5.      The request was made by the Public Prosecutor at the Milan Court of Italy in connection with a prosecution and continuing investigation that had commenced in Italy involving external serious offences relating to fraud, false-accounting, misappropriation and money laundering, against Farouk Agrama (also known as Frank Agrama) (“Agrama”) and Silvio  Berlusconi (“Berlusconi’) and their associates.

6.      It was alleged that for over two decades, Agrama had been purchasing broadcasting rights from Paramount for the Berlusconi Group which included three national television networks. He conducted his business through his company Harmony Gold USA. Between 1988 and 1999, Agrama conspired with Berlusconi and arranged fictitious sales of the broadcasting rights to a number of dummy companies under the control of the Berlusconi Group at an inflated price. These dummy companies had been reselling the broadcasting rights at an over-price to Italian companies and to Mediaset spa (“Mediaset”) a listed company in Italy since 1995. The initial estimate of the amount involved in the criminal matter is USD200 million.

7.      The management of Mediaset had been under the control of Berlusconi.  Prior to 2000, Berlusconi owned 50% of Mediaset.  After 2000, his share had decreased to 35% since he increasingly involved in politics.  He had become the prime minister in 2001.  Even so, he still exercised influence over the management of Mediaset and manipulated its affairs through his associates who were top executives in the company.

8.      Investigations had also revealed that a number of directors of Mediaset were involved.  They had received bribes from Agrama to facilitate the inflated sales agreements.

9.      Certain funds generated from the criminal activities were found to have channelled into the accounts of the companies under the control of Berlusconi, including the Fininvest Group, Principal Network Ltd and International Media Services Ltd.

10.    Other funds had gone into the bank accounts of Agrama’s companies, including Wiltshire Trading Ltd (domiciled in Hong  Kong) and Melchers Limited N.V. (domiciled in the Netherlands), maintained at Sanwa Bank in Los Angeles and UBS New York.  It was alleged that Agrama had also set up other companies to facilitate the laundering of the criminal proceeds.  They included Harmony Gold Ltd (domiciled in Hong  Kong), Meadowview Overseas Ltd and Olympus Trading Ltd (domiciled in Ireland).  It was further discovered that the above companies had common shareholders and company directors.  Paddy Chan Mei Yu (“Paddy Chan”) and Katherine  Hsu  May  Chun (“Katherine Hsu”), who are Hong  Kong residents, are the shareholders and directors of these companies.

11.    Italian authorities had also discovered that an approximate amount of 150 million Swiss Francs had been credited to the accounts opened at UBS Lugano under the names of Harmony  Gold Ltd, Wiltshire Trading Ltd and other companies traceable to Agrama.  Substantial deposits came from the account of Melchers Ltd held at Banca del Gottardo in Lugano.  Paddy  Chan and Katherine Hsu are the authorised signatories of Melchers Ltd’s account.

12.    Italian investigations had also revealed that Paddy Chan is the authorised signatory of the accounts of Wiltshire Trading Ltd and Melchers Ltd opened at UBS’s New York Branch.

13.    Assistance sought by the request included, inter alia, searching the premises: (i) Flat C, 16/F Hung Fook Court, 169 Tin Hau Temple Road, Bedford Gardens, Hong Kong (residence of Paddy Chan); (ii) Flat C, 16/F Yuan Kung Mansion, Kam Din Terrace, 20 Taikoo Shing Road, Taikoo Shing, Hong Kong (residence of Katherine Hsu); (iii) 12/F Inchape Insurance Tower, 3 Lockhart Road, Wanchai, Hong Kong (registered address of Wiltshire Trading Ltd); and (iv) Room 1523, Prince’s Building, 10 Chater Road, Hong Kong (registered address of Harmony Gold Ltd, CS Secretaries Ltd and Loong Po Management Ltd) and seizing the things as itemized at A below relating to the persons and entities as identified at B below:

A: Things to be seized

(i)      company incorporation documents, articles of association, shareholding and capital (including the transfer, sale or purchase of shares) details, beneficial ownership, written resolutions, change of name, directors and secretaries or addresses information;

(ii)     correspondence, notes agreements, contracts, letter of engagement, instructions;

(iii)     invoices, receipts and payments;

(iv)    financial records, including company accounts, cash books, ledgers, profit and loss accounts, balance sheets and statements;

(v)     banking records including mandates, cheque books, cheques journals, statements of account for all accounts held, cheque stubs and paid cheques, money transfer instructions and any correspondence with banks;

(vi)    powers of attorney;

(vii)    bank drafts, loan certificates of deposits, and guarantees;

(viii)   documents relating to Trusts (including trust deeds and appointment of trustees) set up for the benefit of the company or associated persons;

(ix)    investment certificates, share certificates, certificate of title and ownership;

(x)     minutes of meetings, file notes, working papers, reports, diary notes, telephone attendance notes, internal memoranda;

(xi)    documents relating to service provided, including valuation services, acquisition, sale or possession of film rights;

(xii)    contact addresses and telephone numbers;

(xiii)   documents relating to any external storage facility; and

(xiv)   documents relating to any management agency, fiduciary or formation agent used by the individual or company.

B: Persons and entities identified

Persons

Farouk Agrama (also known as Frank Agrama)
Colleen Morris
Vilma Thomas
Silvio Berlusconi
Pier Silvio Berlusconi
Marina Berlusconi
Daniele Lorenzano
Carlo Bernasconi
Roberto Pace
Gabriella Ballabio
Giovanni Stabilini
Aldo Spagnoli
Guido Babieri
Luca Dermitzel
Oscar Garzotto
Bruce Gordon
Peter Mustaky Cary
Gary Marenzi
Joe Lucas

Companies connected with Farouk Agrama

Harmony Gold HK Ltd
Harmony Gold USA
Wiltshire Trading Ltd
Melchers N.V. Ltd
Meadowview Overseas Ltd
Olympus Trading Ltd
The Agrama Trust

Companies connected with Silvio Berlusconi

Fininvest
Silvio Berlusconi Finanziaria
Societé Financiére d`Investissement
Principal Network Ltd
International Media Services Ltd
Waotu Investment Ltd

Other companies

Mediaset
Mediatrade
RTI
Paramount

Banks

Sanwa Bank
Bank of The West
UBS Lugano
UBS New York
UBS Hong Kong
Banca del Gottardo
Cedars Bank
National Irish Banks

14.    It was also requested that the Italian authorities that were involved in the prosecution and investigation of the criminal matter in Italy be allowed to assist the Hong Kong authorities in the execution of the search warrants.”

26.  The second, is the affidavit of Susana Sit, Senior Government Counsel, who is attached to the Mutual Legal Assistance Unit of the International Law Division of the Department of Justice.  Ms Sit says:

“The request

3       The request relates to the prosecution of offences referred to by Detective Senior Inspector Leung King Hung, (“DSIP  Leung”), in his affirmation filed on 23^rd May 2007 allegedly committed between the period of 1995 to 1999 and the continuing investigation of the offences committed subsequently, against Farouk Agrama (also known as Frank Agrama), Silvio  Berlusconi and their associates.  The offences relating to fraud, false-accounting, misappropriation and money laundering punishable with more than twenty four months imprisonment and qualify as serious external offences under section 2 (1) of the Ordinance.”

27.  In assessing whether or not disclosure should be ordered I have particular regard to the following passage from the speech of Lord  Carswell in Tweed, at p 18, para 39:

“The duty of candour has been fulfilled by an adduction of summaries of the police report, authorised officers’ reports and other documents, and the appellant’s counsel did not suggest that there had been any deficiency in candour in putting that evidence before the court.  He submitted, however, that it is not always possible to obtain the full flavour of the content of such documents from the summary, however carefully and faithfully compiled, and that there may be nuances of meaning or nuggets of information or expressions of opinion which do not fully emerge in a summary.  I consider that there is force in this view and that in order to assess the difficult issues of proportionality in this case the court should have access as far as possible to the original documents from which the commission received information and advice.”

Mr McCoy placed great weight on the passage I have emphasised.

28.  Courts in the past appear to have been somewhat reluctant to inspect documents, sought by a government to be withheld from production, unless absolutely necessary.  A better view is that the court should inspect the letter of request if a case is made out that the documents may be necessary: see Wallace Smith Trust Co Ltd (In Liq) v Deloitte Haskins & Sells (a firm) [1997] 1 WLR 257 at 267 per Neill LJ:

“The judge has a discretion whether or not to inspect the documents.  But if the party seeking discovery shows that the production of the documents may be necessary for the fair disposal of the action and order should normally only be refused after the court has examined the documents and considered them in the light of the material already in the applicant’s possession.”

29.  I have accordingly examined the letter of request and its supplementary information.  The letter of request itself, (translated from the original Italian), is dated 10 July 2006, and runs to 15 pages.  There thereafter followed certain e-mail requests from the Department of Justice in Hong Kong to the Italian prosecutor seeking clarification of certain matters.  These resulted responses in which matters were clarified. 

30.  I have had careful regard to the nature of the argument to be mounted, and the summaries of the information upon which the search warrants were sought.  I have considered extent of the information disclosed in the two affidavits filed for the Respondents, and weighed that detail against the full contents of the letter of request, including the supplementary information.  In so doing I have had regard, on the one hand, to the inherently confidential nature of a letter of request, and on the other hand, the difficulty of relying upon a summary as set out in the submission made to Lord Carswell, in which he found there to be force.

31.  The most significant factor to which the court should have regard, in my view, is the risk that the disclosure of the letter of request might prejudice other lines of enquiry still to be pursued, and the argument that disclosure would reveal the current line of enquiry to the target of the investigation.  That risk must be balanced against the need to do justice to the argument of an applicant, with due regard to his Basic Law rights.

32.  Having regard to all these matters I have come to the conclusion that there should be no disclosure of the letter of request in this particular case.  Having reviewed the letter of request and the supplementary information, I have concluded that an exercise of redaction is not possible, while at the same time maintaining the proper sense of the documents.  I am of the view that if there is comprehensive disclosure of the letter of request and the supplementary information, there is a real danger that targets of the investigation may learn information that would potentially be to the detriment of the proper course of the investigation.

33.  I am satisfied that, having regard to the terms of the argument to be made by Mr McCoy as to misrepresentation, omission and material nondisclosure, the existence in his hand of the California and Irish letters of request, together with the information contained in the two affidavits, are sufficient to enable justice to be done in this particular case.  The extent of the information contained in the affidavits and the material generally available to the Applicants are such that they are not, in the absence of the letter of request itself, “deprived of the means of the proper presentation” of their case: see Glasgow Corporation v Central Land Board [1956] SC (HL) 1 at 18, per Lord Radcliffe.

34.  Mr McCoy submits that only by putting the letter of request to Hong Kong alongside the California and Irish letters of request could one ascertain the existence of similar misrepresentations or omissions.  That is plainly arguable.  But the argument works equally to the contrary.  In the absence of the letter of request, and having regard to the extent of the information available, is still well arguable on the part of the Applicants that the evidential burden on them to establish that there have been misrepresentations, omissions, or material non-disclosure, has been met.  It will then be for Mr  Walsh, if he wishes to displace that burden, to decide whether he should put the letter of request before the court to answer the inference that arises from the evidence.

35.  The application for discovery of the letter of request and its supplementary documents is refused.

Public Interest Immunity:

36.  It is accordingly not necessary for me to consider in detail Mr  Walsh’s argument that a letter of request attracts PII.  It is appropriate that I should briefly set out my views in that respect.

37.  The traditional view is that a claim for PII may be made on a class or contents basis.  Mr  Walsh put his claim on both basis.

38.  Mr Walsh relied upon R v Horseferry Road Magistrates’ Court, ex parte Bennett (No 2) [1994] 1 All ER 289 at 292 g-h, to support the class claim.  I have no doubt at all that that very broad statement is insufficient to substantiate a class claim that letters of request in the mutual legal assistance legislation attracts PII.  That is particularly so having regard to the fact that in numerous English decisions subsequent to that decision, particularly dealing with letters of request in mutual legal assistance situations, no claim whatsoever has been made is that the letters of request covered by PII.  I refer particularly to R (Evans & Anor) v Director of the Serious Fraud Office [2003] 1 WLR 299; R (Abacha & Anor) v Secretary of State for the Home Department [2001] EWHC Admin 787 and  R v Secretary of State for the Home Department ex p Zadari (unreported, 11 March 1998 CO/0345/98).  I have no doubt at all that if a PII claim could have been made in relation to the letters of request in those cases, there would have been such a claim.

39.  Under normal circumstances a PII claim based upon contents requires a certificate from the appropriate authority.  There was no such certificate in this case.  I accept Mr McCoy’s submission that the letter of request may properly be described as a routine and formal communication in international cooperation in law enforcement, which while attracting a degree of confidentiality, does not fall within the category of high communications between states or governmental documents dealing with matters of high security which might normally demand PII.

40.  The most recent statement in Hong Kong on PII is contained in the judgement of Hartmann J in Chu Woan Chyi v Director  of  Immigration [2006] 4 HKLRD 280.  There the learned judge applied the traditional distinction of contents and class claims in relation to PII.

41.  Mr McCoy argued that since December 1996, the distinction between class and contents claims for PII has been abandoned in the United Kingdom, and a single test of whether disclosure would cause real damage to the public interest, has been adopted: see Matthews and Malek, Disclosure (Sweet & Maxwell) 2007, 11.85.  He contended that that should be the law in Hong Kong.

42.  It is not necessary in these proceedings for me to reach a conclusion on the point.  It is sufficient if I say that I find the argument attractive.

The Informations in support of the search warrants:

43.  Mr McCoy accepted that I am bound by the decision in Apple  Daily Ltd v Commissioner of the ICAC [2000] 1 HKLRD 647 CA, that the actual affidavits or affirmations used to support applications for search warrants constitute a class of documents to which PII attaches.  Other than signalling an argument that the decision should not now be followed, first since none of the speeches of their Lordships in Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952, referred to a class claim, and second that the Hong Kong Court of Appeal in Re a Firm of Solicitors [1991] LRC (Const) 764, did not approach the matter in terms of a class claim, he took the matter no further.

44.  I accept that I am bound by Apple Daily.  The application to disclosure of the informations in support of the search warrants is refused.

Costs:

45.  All questions of costs reserved.