RE SOLICITORS OF HONG KONG

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JUDGMENT

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Hunter, JA :

1. On 4th April 1990 this court gave judgment allowing an appeal from Jones J and dismissing an application for judicial review relating to the validity of a search warrant issued by the ICAC under the Prevention of Bribery Ordinance. The unsuccessful respondents now seek leave to appeal to the Privy Council. Most helpfully and usefully they have followed the procedures suggested by my Lord the Vice-President in an earlier application, setting out in their Notice of Motion the three questions which they rely upon as questions of great general or public importance.

2. Before reading their questions I should emphasize that the application is brought under section 2(b) of the Order in Council which gives the court a discretion to grant leave where "the question involved in the appeal is one which by reason of its great general or public importance, or otherwise, ought to be submitted to Her Majesty in Council for decision". It seems to us that this paragraph gives rise to two questions. The first is a mixed question of fact and law, does the question sought to be argued before the Privy Council involve a matter of great general or public importance? If it does, does this create the circumstances in which this court should exercise its discretion and send the matter to the Privy Council for decision?

3. The three questions which are said to arise are these : -

4. Now it is not disputed that these questions each give rise to questions of some public or general importance. But it is apparent, we think, that they vary in the sense that one gives rise to a more significant question of public importance than the others. It is the second question which beyond question is a matter of very great general and public importance; the breadth of the power given by section 17 of the Prevention of Bribery Ordinance in relation to the issue of a search warrant, and the question as to whether the court can effectively review the exercise of those powers at the investigation stage.

5. In reaching its decision, this court did no more than follow the decision of the House of Lords in R v Commissioner of Inland Revenue ex parte Rossminster [1980] AC 952. The court's decision was simply this: first, it had to construe the statue and apply the statutory formula and secondly public interest immunity supported in this jurisdiction by sections 30 and 30A of the ICAC Ordinance ruled out contemporary investigation precisely for the reasons so exhaustively given by their Lordships in Rossminster.

6. The question here it seems to us to come down to this. Should we now be in effect inviting the Privy Council to reconsider Rossminster or to reconsider the applications of the principles set out in Rossminster to our statute? Or is it more appropriate in circumstances like this for this court to decline and to leave the Privy Council to decide that question for itself on an application for special leave under rule 3 of the Judicial Committee General Appellate Jurisdiction Rules Order 1982? It seems to us that the proper answer is that this is a matter for the Privy Council itself. We have done no more in this court than to follow and apply principles which seemed to bind us. If we have misapplied those principles, or wrongly applied those principles, then it is more appropriate for the Privy Council to say so than for us. It is more appropriate for the Privy Council to decide whether it wishes to have an opportunity of reconsidering the earlier decision of the house of Lords.

7. I then turn to the other two questions where the level of public interest or importance seems to us to be very much less. The first question turned on the court's jurisdiction to hear this appeal. In the view of this court it turned upon the true construction of section 21K of the Supreme Court Ordinance, because this application was plainly an application by way of judicial review for civil relief from start to finish. That is the relief that was granted on two different occasions in the court below. In the very special circumstances in this case it does not seem to us that this is a question which is of sufficient doubt or significance for us to grant leave.

8. The same principles apply to the third question which relates to the problems of legal professional privilege. Again we would emphasise, that arises on the very special facts of this case where the warrant in its terms was limited to "documents named being documents used in the commission of a criminal offence". It is quite plain that documents used in the commission of a criminal offence by the solicitor concerned or by any other party attract no privilege. There are obvious difficulties which can arise on the issue of search warrants to solicitors' offices. But this court took the view, and still takes the view, that these difficulties do not arise under a warrant in these very narrow and very specific terms.

9. In these circumstances, having given this matter careful if not anxious consideration, we have come to the conclusion that this is not a case where leave to appeal should be granted.