RE C W LEUNG & CO AND ANOTHER

[A trespass committed by police officers acting under a search warrant illegally obtained is properly the subject of an ordinary action, not an application for judicial review)]

1989 MP No 1248

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. This is an application for a judicial review. The applicants are a firm of solicitors and the respondent is the Attorney-General. The solicitors complain that their offices were invaded by police officers (who are represented by the Attorney-General in these proceedings), pursuant to a search warrant which had been obtained illegally.

2. This has been the subject of consideration by Mr Justice Duffy in other proceedings into the details of which I need not go, and in the course of which the judge ruled that the warrant had indeed been obtained illegally. It was a warrant dated 9th May 1982 in wide and general terms, following a form which may well be in need of revision, and which may well be regarded as unsuitable when addressed to a firm of solicitors. I need not express any view about these matters because the Attorney-General has very sensibly conceded that, in the light of the ruling of Mr Justice Duffy, it must be accepted that the warrant was illegally obtained.

3. In those circumstances, it seemed to me, and I mentioned it to counsel, that the solicitors might have a private law remedy, that is to say, an action for damages for trespass in relation to the conduct of the police when they acted upon the warrant which they had obtained illegally. I was concerned that, whatever other results might follow from these proceedings, the Attorney-General should not be faced with two sets of proceedings; and that the whole matter should be dealt with at one go.

4. Showing equal good sense, the solicitor accepted that once their position was vindicated, that is to say, once this court also had indicated that the warrant had been obtained illegally, they were no longer interested in prosecuting any remedy they may have had in an action of trespass.

5. I have, accordingly, invited counsel to see if they can agree upon the form of the order which should follow, and as I understand it, they are agreed that an order of this court should be made recording that the Attorney-General accepts that the warrant had been illegally obtained, and recording an undertaking on the part of the solicitors that they will nevertheless not institute any action for damages for trespass in relation to the entry upon their premises of the police in execution of the warrant.

6. There is, therefore, no further issue between the parties which I have to decide, although some serious questions are raised in these proceedings as to the appropriate nature of a warrant to be issued against a solicitors firm; as to the width of the material to be sought; and as to the privilege of the solicitors' clients. But, as I say, there is no question between these two parties (other than as to the costs of these proceedings) which I have been asked to determine.

7. I cannot make an ordinary order for costs here. First of all, it is difficult to say that there is an event for the costs to follow. Secondly, I am of the opinion that this is yet another case in which an application for judicial review was not really the appropriate remedy. That would have been an action for damages for trespass bought by the solicitors, alleging that their premises had been invaded wrongfully by the police, an ordinary civil matter. These proceedings would more appropriately, as it seems to me have been brought as an ordinary action. Furthermore, there is no useful purpose to be served by the grant of any public law remedy. For these reasons, I am not disposed to make an order in favour of the solicitors providing for their costs and I shall in fact make no order as to the solicitors' costs of this application.

8. As to the Attorney-General, he has had to concede, in the face of the ruling of Mr Justice Duffy, that the police officers had entered the premises of the solicitors under a search warrant which had been illegally obtained. The complaint of the solicitors is in substance justified. For these reasons, I am not disposed to make any order for costs in favour of the Attorney-General either. And so, in the end, the order which I shall make will simply be an order, which will record the concession by the Attorney-General that the warrant had been unlawfully obtained and the undertaking by the solicitors not to institute any action in relation to the trespass of which they have complained. The order will make no provision for the costs of either party.