Apple Daily Ltd. v. The Commissioner of the Independent Commission Against Corruption

FOR REFERENCE

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 NO. 7315 OF 1999)

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BETWEEN

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J U D G M E N T

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Keith JA (giving the first judgment at the invitation of Chan CJHC):

Introduction

1. This case concerns the validity of two search warrants. It has attracted considerable publicity because the warrants relate to the premises of a popular newspaper, and purported to authorise the seizure of journalistic materials.

2. The investigation to which the warrants relate concerns an allegation that employees of Apple Daily Ltd. ("Apple Daily") have offered advantages to police officers and police communications officers to obtain from them classified information about police investigations and operations. It was suspected that offences under, inter alia, section 4 of the Prevention of Bribery Ordinance (Cap. 201) ("the POBO") had been committed. Accordingly, on 25 November 1999, warrants authorising the search of Apple Daily's premises were sought by the Commissioner of the Independent Commission Against Corruption ("the ICAC"). The application for the warrants was made ex parte to Gall J in chambers, and he ordered the warrants to issue. One of the warrants was issued under the POBO, and the other under Part XII of the Interpretation and General Clauses Ordinance (Cap. 1) ("the IGCO").

3. The warrants were executed by officers of the ICAC on 29 November 1999. A number of materials were seized. They included documents which appeared to be classified police documents and computers which were believed to "contain evidence of the offences under investigation". However, the ICAC has not yet examined this material. That is because the documents have been sealed, as has the data in the computers which has been downloaded and retrieved, pending an application by Apple Daily to have the warrants set aside. The application to set aside the warrants was heard by Lugar-Mawson J, and on 13 December 1999 he dismissed the application to set them aside. It is from his refusal to set the warrants aside that Apple Daily now appeals.

The warrant issued under the POBO

4. The terms of the warrant. The warrant issued under the POBO was expressed to have been issued pursuant to section 17(1) of the POBO. It recited that Gall J (a) had read an affirmation made by Ricky Yu on 24 November 1999, and (b) had been satisfied that the conditions in section 17(1) had been met. It then authorised the various ICAC officers to whom it was addressed

".... to enter, by force if necessary, [the particular premises named in the warrant] .... and to search for, seize and retain any bank record, accounts record, company book and any kind of record, document, article or object, or any record of data processed or stored in a computer or other electronic devices, with immediate access thereto, other than items subject to legal privilege, which is likely to be relevant to the investigation for the purpose of which this search warrant is issued."

5. The statutory authority for the warrant. The warrant was in error when it referred to the warrant having been issued under section 17(1) of the POBO. Section 17(1) merely permits a warrant to be applied for. The section under which the warrant was issued was section 17(1A), which provides:

"Where on an application under subsection (1) the court is satisfied that there is reasonable cause to believe that in any premises or place there is anything which is or contains evidence of an offence under this Ordinance, the court may by warrant directed to an investigating officer named in the warrant, empower such officer and any other investigating officer, to enter such premises or place, by force if necessary, and search the same."

6. Three comments should be made about section 17(1A):

(i) What triggers the court's power to issue the warrant is the court being satisfied that there is reasonable cause to believe that there is in the premises to be named in the warrant anything which is or contains evidence of an offence under the POBO. Since that requirement is contained in section 17(1A), the warrant was wrong to recite that Gall J had been satisfied that the conditions in section 17(1) had been met. It should have recited that he had been satisfied that the condition in section 17(1A) had been met.

(ii) Section 17(1A) does not in express terms limit what officers armed with such a warrant may search for. It empowers the officers to enter the premises "and search the same". However, I do not think that the absence of any words of limitation means that the officers can search for whatever they want. Since the warrant can only be issued if the court is satisfied that there is reasonable cause to believe that there is in the premises "anything which is or contains evidence of an offence under [the POBO]", I would construe the power to search the premises which section 17(1A) confers as being limited to searching the premises for anything which is or contains evidence of an offence under the POBO.

(iii) The only acts which a warrant issued under section 17(1A) may authorise are (a) the entry of premises, by force if necessary, and (b) the search of the premises. A warrant issued under section 17(1A) cannot authorise the seizure of any materials found in the premises, or their removal from the premises, or the detention or retention of them.

7. Power of seizure and detention. Although a warrant issued under section 17(1A) cannot authorise the seizure or detention of materials, it is common ground that some officers of the ICAC have such a power. It is a power which can be conferred by the Commissioner of the ICAC ("the Commissioner") pursuant to section 10C of the Independent Commission Against Corruption Ordinance (Cap. 204) ("the ICACO"). Section 10C(1) provides, so far as is material:

"An officer authorized in that behalf by the Commissioner may-
.....
(c) seize and detain anything which such officer has reason to believe to be or to contain evidence of any of the offences referred to in section 10...."

Offences under the POBO are offences referred to in section 10. The warrant cards issued to ICAC officers by the Commissioner include such an authorisation, and the warrant card (which included that authorisation) of the ICAC officer in charge of the officers who executed the warrant has been exhibited. Accordingly, having entered and searched Apple Daily's premises pursuant to the warrant issued under section 17(1A) of the POBO, those ICAC officers were entitled, in accordance with the instructions of the ICAC officer in charge and pursuant to the authorisation given to him by the Commissioner under section 10C(1)(c) of the ICACO, to seize and detain anything which they had "reason to believe to be or to contain evidence of any of the offences referred to in section 10 [of the ICACO]".

8. The criticisms of the warrant. Apart from the references in the warrant to section 17(1) (which should have been references to section 17(1A)), two criticisms are made of the warrant. First, the warrant authorised the ICAC officers to do things which the judge did not have the power to authorise them to do, viz. it authorised the officers to "seize and retain" various materials. Secondly, the description of the materials which the warrant purported to authorise the officers to seize and retain, viz. materials which are "likely to be relevant to the investigation for the purpose of which this search warrant is issued", was wider than the description of the materials which their authorisation from the Commissioner under section 10C(1)(c) of the ICACO permitted them to seize and detain, viz. materials which they had "reason to believe to be or to contain evidence of any of the offences referred to in section 10 [of the ICACO]". I shall return to these criticisms later.

The warrant issued under Part XII of the IGCO

9. The terms of the warrant. The language of the warrant issued under the IGCO was relatively similar to that issued under the POBO. It was expressed to have been issued pursuant to section 85 of the IGCO. It recited that Gall J (a) had read an affirmation made by Ricky Yu on 24 November 1999 (which I assume was the same affirmation as that referred to in the warrant issued under the POBO), and (b) had been satisfied that the conditions in various sections of the IGCO (which it specified) had been met. It then authorised the various ICAC officers to whom it was addressed:

".... to enter, by force if necessary, [the particular premises named in the warrant] ... and to search for, seize and retain any record, document, article or object, or any record of data processed or stored in a computer or other electronic devices, which contains material consists [consisting] of or includes [including] journalistic material, with immediate access thereto, other than items subject to legal privilege, which is likely to be relevant to the investigation for the purpose of which this search warrant is issued."

The syntax has gone wrong, and I have included in italics the words which I think were intended.

10. The rationale underlying Part XII of the IGCO. Part XII of the IGCO was added to the IGCO in 1995. The Part is headed "Search and Seizure of Journalistic Materials". The rationale underlying Part XII, I believe, relates to the important role played by a free and independent press as public watchdog. The press should be able to speak out on matters of public interest without fear of reprisal, and journalists need to protect the confidentiality of the sources of the information they receive. On the other hand, the legitimate requirements of law enforcement agencies may in exceptional cases make it necessary for journalistic materials to be the subject of seizure and inspection. In this sensitive area, Part XII of the IGCO requires a judge of the Court of First Instance or the District Court to hold the balance between these competing interests.

11. The statutory scheme in Part XII of the IGCO. The governing provision in Part XII of the IGCO is section 83. Its effect is to prevent the issue of a warrant which authorises the entry and search of premises on which there are journalistic materials, and the seizure of journalistic materials found on them, unless there is an express statutory provision permitting the issue of such a warrant. Section 85 is an express statutory provision permitting the issue of such a warrant. It confers on a judge of the Court of First Instance or the District Court the power to issue a warrant authorising the entry and search of such premises, and the seizure of journalistic materials found there. The core provision in section 85 is section 85(3), which empowers a judge to

".... issue a warrant authorizing the applicant to enter onto the premises and to search the premises and any person found on the premises and to seize any material."

12. However, before Gall J could have issued such a warrant, a number of conditions had to be satisfied. Those conditions were as follows:

(i) The application for the warrant had to have been made by a person on whom there had been conferred "under any Ordinance" the powers of entry, search or seizure: see section 85(1). As it was, the powers of entry and search were conferred on the ICAC officers at the same time by Gall J pursuant to, and therefore under, section 17(1A) of the POBO; and the power of seizure had been conferred on them by the Commissioner pursuant to, and therefore under, section 10C(1)(c) of the ICACO.

(ii) The application for such a warrant had to have been approved by a person specified in Schedule 7 to the IGCO to be a directorate disciplined officer: see section 85(2). The warrant issued by Gall J recited the fact that he was satisfied that the condition set out in section 85(2) had been met.

(iii) Gall J had to be satisfied that there were reasonable grounds for believing

(a) that an arrestable offence had been committed,
(b) that there was material which consisted of or included material known or suspected to be journalistic material on the premises, and
(c) that the material was likely to be either (1) of substantial value to the investigation of the arrestable offence or (2) relevant evidence in proceedings for the arrestable offence:

see sections 85(3)(a)(i) and 84(3)(a). The warrant issued by Gall J recited that he was satisfied that these conditions had been met.

(iv) Gall J had to be satisfied that other methods of obtaining the material had been tried and failed, or had not been tried because they were unlikely to succeed or would be likely to seriously prejudice the investigation: see sections 85(3)(a)(i) and 84(3)(c). The warrant issued by Gall J recited that he was satisfied that this condition had been met, though it did not recite which of the alternatives he had been satisfied of.

(v) Gall J had to be satisfied that there were reasonable grounds for believing that it was in the public interest that an order should be granted, having regard to the benefit likely to accrue to the investigation: see sections 85(3)(a)(i) and 84(3)(d)(i). The warrant issued by Gall J recited that he was satisfied that this condition had been met.

(vi) Gall J had to be satisfied

(a) that it had not been practicable to communicate with any person entitled to gain entry to the premises to which the application related, or
(b) that, while it might have been practicable to communicate with such a person, it had not been practicable to communicate with any person entitled to grant access to the material, or
(c) that service of the notice of an application for an order for the production of the material or for access to the material be given might have seriously prejudiced the investigation:

see sections 85(3)(a)(ii) and 85(5). The warrant issued by Gall J recited that he was satisfied that this condition had been met, though again it did not recite which of the alternatives he had been satisfied of.

13. Finally, the scope of the warrant was expressly limited by section 85(4), which provides:

"A warrant issued under subsection (3) shall not authorize any entry, search or seizure other than such entry, search or seizure as, but for section 83, would be or could have been authorized under the provision mentioned in subsection (1)."

In practical terms, this provision had two consequences for the warrant which Gall J was being asked to issue under the IGCO. First, to the extent that the warrant was to authorise the ICAC officers to enter and search the premises, the scope of the warrant could not be any greater than the power of entry and search conferred on the officers by Gall J pursuant to section 17(1A) of the POBO. Secondly, to the extent that the warrant was to authorise the ICAC officers to seize materials, the scope of the warrant could not be any greater than the power of seizure and detention conferred on the officers by the Commissioner pursuant to section 10C(1)(c) of the ICACO. The effect of section 85(4) was to limit the scope of the journalistic materials which the warrant issued under the IGCO could authorise the officers to seize and detain to anything which they had "reason to believe to be or to contain any evidence of any of the offences referred to in section 10 [of the ICACO]".

14. The criticism of the warrant. Once it is accepted that a warrant issued under the IGCO may provide for the seizure of journalistic materials provided that they come within the class of materials described in section 10C(1)(c) of the ICACO, one criticism of the warrant remains. That is that the description of the materials which the warrant authorised the officers to seize and retain, viz. materials which are "likely to be relevant to the investigation for the purpose of which this search warrant is issued", was wider than the description of the materials which their authorisation from the Commissioner permitted them to seize and detain, viz. materials which they had "reason to believe to be or to contain evidence of any of the offences referred to in section 10 [of the ICACO]". This is identical to the second criticism made of the warrant issued under the POBO, and I shall return to this criticism later as well.

The jurisdiction to set aside the warrants

15. Warrants issued under section 17(1A) of the POBO and section 85(3) of the IGCO do not have to be issued by a judge of the Court of First Instance. They can be issued by a magistrate or a judge of the District Court respectively. In such cases, the issue of such warrants can be challenged by judicial review. However, the search warrants in the present case cannot be challenged by judicial review because they were issued by a judge of the Court of First Instance. The only way in which they can be challenged is by an application to set them aside. The route by which Apple Daily sought to have them set aside was under Ord. 32 r. 6 of the Rules of the High Court, which provides:

"The Court may set aside an order made ex parte."

At the hearing before Lugar-Mawson J, it was conceded by counsel then instructed on behalf of the Commissioner that Ord. 32 r. 6 gave the court the power to set aside the warrants. Lugar-Mawson J was not convinced that that concession was correct, but he was prepared to assume that it was. He added, though, that the issue was "one which may fall to be decided in another tribunal".

16. Mr Kevin Zervos for the Commissioner (who did not appear on the application to set aside the warrants before Lugar-Mawson J) contended that Ord. 32 r. 6 did not give the court power to set aside the warrants. Accordingly, the appeal had to be dismissed without a consideration of the merits, because although the application to Lugar-Mawson J was dismissed, it should have been dismissed for want of jurisdiction without a consideration of its merits.

17. When properly analysed, Mr. Zervos' argument has, I think, two limbs. First, it is said that an application for a search warrant is not a lis inter partes. It is a unique procedure in which there is only one party, namely the party applying for the warrant. Thus, the proceedings in which the application is made are such that they come to an end when the ex parte application for the warrant is granted. Mr Zervos argued that Ord. 32 r. 6 does not apply to such an order because (a) Ord. 32 r. 6 contemplates another party to the proceedings (and in something other than a lis inter partes by definition no other party exists), and (b) the proceedings are over by the time when Ord. 32 r. 6 can be invoked. Secondly, it is said that Ord. 32 r. 6 only applies to orders made in civil proceedings. Mr Zervos argued that orders for the issue of search warrants in connection with the investigation of criminal offences are not civil proceedings.

18. I am sceptical about the correctness of these arguments. As for the first argument, I agree with the premise on which the argument is based, namely that an application for a search warrant is not a lis inter partes. An application for letters of request, which was held by Godfrey J (as he then was) in Attorney-General v. "L" [1990] 1 HKLR 195 not to be a lis inter partes, is an analogous example. But it does not necessarily follow from that that Ord. 32 r. 6 cannot be relied upon to found an application to set the warrant aside. As for the second argument, I do not think that the authorities speak with one voice. Indeed, the views of one Justice of Appeal in Hong Kong on the topic have changed in the course of time: compare Godfrey JA's different views in the "L" case at p. 198G and in Re an application by Nicholas Hunsworth (CA 486/96) at pp. 9M-10B of the transcript. But as a matter of principle, I would be surprised if an application for a warrant, whose purpose was to render lawful acts which would otherwise amount to civil wrongs, i.e. trespass to land and detinue, would be regarded as an application made in criminal proceedings, simply because the execution of the warrant might result in the discovery of materials which might be used in a criminal prosecution.

19. In any event, I would be very reluctant to go along with either of these arguments if their effect was to deny the occupier of premises to which the search warrants related an opportunity to apply to the court for their revocation or variation. It would be very surprising if the court could not revoke or vary search warrants when it could be shown, for example, that they had been obtained on obviously inaccurate facts or on facts which were seriously incomplete because of a lack of candour at the time when the applications for them were made. Mr Zervos' answer was that, although Ord. 32 r. 6 was not available to Apple Daily to challenge the search warrants, there would have been nothing to prevent Apple Daily from seeking the quashing of the warrants in fresh proceedings begun by new originating process. Although that new originating process could not take the form of judicial review under Ord. 53, Apple Daily could have issued an originating summons under Ord. 5 r. 3 claiming that relief.

20. Some of these issues were canvassed in Re: An application for an Order under Ord. 119 r. 5(2) of the Rules of the High Court (CMP 1/98). They were not resolved in that case because the court decided to dismiss the application on its merits. I propose to take the same course here. If the appeal is dismissed on its merits, it will not be necessary to address the knotty jurisdictional problems which Mr Zervos' submissions have posed. It is only if the appeal would have been allowed on its merits that it will be necessary to resolve the issue - as well as the question raised by the court in the course of argument, namely that if Ord. 32 r. 6 did not apply to the search warrants, so that no express power existed in the Rules of the High Court to set them aside, the court nevertheless has an inherent power to revoke or vary orders made ex parte, and the application to Lugar-Mawson J could be treated as an application for the exercise by the court of that reserve jurisdiction. When that possible course of action was put to Mr Zervos in the course of argument, he was happy to go along with it.

Inspection of the affirmation of Ricky Yu

21. The arguments which are relevant to the question whether the Court of First Instance had jurisdiction under Ord. 32 r. 6 to set aside the warrants are also relevant to another question which Lugar-Mawson J had to decide. Apple Daily's lawyers wished to inspect the affirmation of Ricky Yu which constituted the evidence on which Gall J ordered the issue of the warrants. They disavowed any wish to get information about the ICAC's investigation or its informants, but they claimed that they needed to see the affirmation to be satisfied that the pre-conditions for the issue of the warrant had been met. If any of the pre-conditions had not been met, that would amount to another ground for the warrants to be set aside.

22. Since Lugar-Mawson J was prepared to assume that the court had the power to set aside the warrants, he considered this issue on its merits. He ruled that the affirmation should not be made available for inspection, and Apple Daily appeals against that ruling. I propose to consider this appeal on its merits as well. If the appeal against the ruling is dismissed on its merits, it will again not be necessary to address the jurisdictional issue.

23. The arguments on whether the affirmation should be made available for inspection can be shortly stated. The Commissioner's argument was that the affirmation is covered by public interest immunity. As Lord Reid said in Conway v. Rimmer [1968] AC 910 at pp. 953G-954A:

"The police are carrying on an unending war with criminals many of whom are today highly intelligent. So it is essential that there should be no disclosure of anything which might give any useful information to those who organise criminal activities. And it would generally be wrong to require disclosure in a civil case of anything which might be material in a pending prosecution: but after a verdict has been given or it has been decided to take no proceedings there is not the same need for secrecy."

That immunity was held in Inland Revenue Commissioners v. Rossminster Ltd. [1980] AC 952 to apply to the disclosure of information used for the purpose of obtaining search warrants.

24. Mr Philip Dykes SC for Apple Daily did not quarrel with this statement of principle. He accepted that public interest immunity applies to information relating to ongoing investigations into criminal offences. However, he argued that once a document has been placed before a judge on an ex parte application for an order, a party affected by the order who applies for the order to be set aside is entitled to see it. Public interest immunity no longer attaches to the document. He relied on what Sir John Donaldson MR said in WEA Records Ltd. v. Vision Channel 4 Ltd. [1983] 1 WLR 721 at p. 724G-H:

".... I cannot at the moment visualise any circumstances in which it would be right to give a judge information in an ex parte application which cannot at a later stage be revealed to the party affected by the result of the application. Of course there may be occasions when it is necessary, for example, to conceal the identity of informants, but the judge should then be told that this information cannot be given to him and the judge will then have to make up his mind to what extent he is prepared to rely upon information coming from anonymous and unidentifiable sources."

25. Despite these comments, I have little doubt that information to which public interest immunity attaches constitutes an example of information which cannot normally be revealed at a subsequent inter partes hearing. It was recognised in Rossminster that the immunity was temporary in nature. As Lord Wilberforce said at p. 1001A:

"At some stage, which cannot be particularised now with precision but which broadly would be when criminal proceedings are over, or, within a reasonable time, are not taken, the immunity which exists at the stage of initial investigation will lapse."

Lord Diplock added at p. 1012C that even then the immunity would not lapse "as regards identity of informants". The point is that the immunity would not have lapsed by the time of the inter partes hearing of an application to set aside the ex parte order which was made on the basis of the information to which the immunity attached. Moreover, in Attorney-General of Jamaica v. Williams [1998] AC 351, Lord Hoffman recognised the need for the court to be given information which could not subsequently be disclosed to the targets of the investigation. At p. 360B-D, he said:

"It would plainly not be in the public interest for the grounds of the officer's suspicions to be disclosed while the investigation is in progress and one would not expect them to be stated upon a publicly available document. The need for confidentiality in these matters was rightly expressed by [the lower court]. But there is no need for the same confidentiality in the privacy of the justice's room. The application is made ex parte and the officer must disclose to the justice all that the latter needs to know in order to discharge his duty. There may be some knowledge, for example the identity of informers, with which the justice will find it unnecessary to be burdened. But sufficient information to establish the grounds for suspicion to his satisfaction must be stated on oath. The statute does not require the information to be provided in writing. An oral statement on oath is sufficient."

26. I have not overlooked Ord. 63 r. 4 of the Rules of the High Court which gives litigants and members of the public the right to inspect documents filed in the Registry of the High Court, although many of those documents can only be inspected by persons who are not parties to the proceedings in which the documents were filed with the leave of the court. In my view, the rights given by Ord. 63 r. 4 are subject to the principles of public interest immunity. But there is an additional reason why the affirmation of Ricky Yu is exempted from inspection under Ord. 63 r. 4, and that is because, although it was used in support of the application under section 85(3) of the IGCO, it was also used in support of the application under section 17(1A) of the POBO. Ord. 119 applies to applications under Part III of the POBO, in which section 17(1A) is contained, and Ord. 119 r. 5 provides:

"(1) The notice of motion, affidavit, if any, information [sic] and all other documents relating to the application shall be treated as confidential and shall, immediately on the determination of the application, be placed in a packet and sealed by order of the judge by whom the application was heard.

(2) The packet shall be kept in the custody of the Court in a place to which the public has no access or in such other place as the judge may authorise and shall not -

(a) be opened;
(b) have its contents removed;
(c) be copied; or
(d) be destroyed;

except by order of a judge."

27. This rule was considered in Re: An application for an order under Ord. 119 r. 5(2) of the Rules of the High Court, op. cit. The court was considering an application to set aside an order made under section 14(1) of the POBO requiring information to be produced to the ICAC. What the court said, suitably adapted to reflect the fact that in the present case the order was made under section 17(1A), was as follows:

"The rationale underlying Ord. 119 r. 5 is the recognition that orders made under [Part III of the POBO] are investigative tools, and the documents relating to applications for such orders need to be kept confidential in order to preserve the integrity of the investigation. Thus, if their confidentiality is not maintained, the person who is suspected of having committed an offence under the Ordinance may get to see copies of them, or may be informed of their contents. In that way, he may get to know [the identity of persons who have provided the investigators with information. He may also get to know], much earlier than he otherwise might, the nature of at least some of the evidence being gathered, and he may be able, by using that knowledge, to thwart the investigation into his activities.... For these reasons, it is plain that Ord. 119 r. 5(2) contemplates that non-accessibility to the documents relating to an application under [Part III of the POBO] should be the norm.

            However, the words 'except by order of a judge' in Ord. 119 r. 5(2) show that the Court has the power to disapply the requirements of Ord. 119 r. 5(2). It is therefore recognised that there may be particular cases where access to the documents should be permitted. In my view, the requirements of Ord. 119 r. 5(2) will not usually be disapplied on general grounds - for example, on the ground that the person to whom the notice is addressed needs to see the documents so that he can obtain informed advice about his legal position, .... or so that he can make an informed decision as to whether to apply for the revocation or variation of the order, .... [or so that he can satisfy himself that the pre-conditions for the making of the order have been met.] Those grounds could be relied upon in almost every case. If the requirements of Ord. 119 r. 5(2) could regularly be disapplied on any of those grounds, the norm of non-accessibility to the documents would be seriously eroded. General grounds of this kind, of course, cannot be ignored, but what is required is an examination of the particular facts to determine whether a departure from the norm is justified in any particular case."

Lugar-Mawson J was unable to discern any grounds which might justify a departure from the norm. Nor have I.

28. Mr Dykes took a further point which was not taken before Lugar-Mawson J. If, contrary to his primary argument, public interest immunity still attached to the affirmation, it did not attach to the whole of the affirmation, but only to that part of the affirmation which gave sensitive information about the investigation and the identity of the officers' sources, and which needed to be kept confidential so as to preserve the integrity of the investigation. Mr Dykes contended that Lugar-Mawson J's order refusing to set aside the warrants should be set aside on this ground alone, and that the case should be remitted back to him so that

(a) he can edit the information, permitting Apple Daily and its advisers to see that part of the affirmation which does not contain material which needs to be kept confidential, and

(b) submissions can then be made in the light of that part of the affirmation which Apple Daily and its advisers have been permitted to see.

29. From a practical point of view, I suspect that if the affirmation was edited in the way suggested by Mr Dykes there would be very little left for Apple Daily and its advisers to see. Having regard to what the judge had to be satisfied about before either of the warrants could be issued, I imagine that the bulk of the affirmation contains sensitive material. I accept that some of the material would not have been sensitive, e.g. the material which satisfied Gall J that the application for the warrant under the IGCO had been approved by an officer of the appropriate level, but I suspect that editing the affirmation would not result in much more than that being revealed to Apple Daily and its advisers.

30. I appreciate that there is a difference between a claim to public interest immunity in respect of documents falling within a particular class, i.e. the affidavits or affirmations used to support applications for search warrants, and a claim to public interest immunity in respect of information of a sensitive nature which might be included in such documents. But in my opinion affidavits or affirmations used to support applications for search warrants constitute one of the classes of documents to which public interest immunity attaches, so long as the investigation in aid of which the warrants were sought continues. It may be that once that investigation has come to an end, public interest immunity no longer attaches to the documents as a class, and public interest immunity only attaches to such parts of the document as identifies informants, but that is not something which I need to address. For the time being, while the investigation continues, the affirmation of Ricky Yu falls within one of the classes of documents to which public interest immunity attaches and cannot be inspected by Apple Daily or its advisers.

31. This view accords with such authority as has been brought to our attention which bears on the issue. Thus, according to the headnote in Taylor v. Anderton, The Times, 21 October 1986, Scott J (as he then was) held that the documents "upon the strength of which search warrants had been obtained ... were of a class to which public interest immunity attached". (Emphasis supplied.) In R. v. Playford (1988) 40 C.C.C. (3d) 142, Goodman JA in the Ontario Court of Appeal drew the important distinction between the period during which the investigation was continuing and the period after the investigation had been concluded. At p. 180, he said:

"It should be emphasised that the need for secrecy and non-disclosure of the contents of the sealed packet prior to the expiration of an initial authorization or any renewal thereof is self-evident. The availability to the public of the contents thereof prior to the expiration of the authorization or any renewal thereof would defeat the purpose of the authorization, namely, the clandestine interception of private communications. On the other hand, once the authorization and any renewal thereof has expired or the investigation of the offence and the persons suspected of being involved therein has been completed, there is no logical or policy reason to refuse to reveal the contents of the sealed packet, provided that, where appropriate to protect the identity of an informant, the contents of the sealed packet may be properly edited." (Emphasis supplied.)

I should add that Mr Dykes also relied on the decision of the New Zealand Court of Appeal in R. v. McNicol [1995] 1 NZLR 576, but I have not found that case helpful because in that case the prosecution had not sought to argue that public interest immunity covered the whole of the affidavit relied upon. The issue with which the present case is concerned did not therefore arise.

32. For these reasons, therefore, not only was Lugar-Mawson J right to rule as he did on the arguments before him, but in my view public interest immunity applies, at any rate for the time being, to the whole of Ricky Yu's affirmation. In these circumstances, I now turn to the particular criticisms which are made of the warrants themselves.

The authorisation to "seize and retain" in the warrant issued under the POBO

33. Two inescapable facts apply to the warrant issued under the POBO. First, the court did not have the power to issue a warrant under the POBO which authorised the ICAC officers to seize and retain materials found on the premises to which the warrant related. Accordingly, this was not a case of the warrant simply misdescribing the powers conferred upon the officers. The warrant purported to authorise acts which the court had not had the power to authorise the officers to do. Secondly, although the court had not had the power to authorise the officers to seize and retain materials found on the premises, nevertheless it was a power which the Commissioner had, and he had exercised that power in the case of the ICAC officer who had been in charge of the officers who had executed the warrant. Thus, the seizure and retention of the materials by the officers did not constitute the exercise of an authority which the officers did not have. They just had that authority independently of, and not pursuant to, the warrant which had purported to confer it.

34. A not dissimilar situation arose in Rossminster. The principal issue there was whether the search warrants which had been issued in that case contained enough information. The test to be applied was stated by Lord Diplock at p. 1008B-E as follows:

"What has to be disclosed upon the face of the search warrant depends upon the true construction of the statute. The construing court ought, no doubt, to remind itself, if reminder should be necessary, that entering a man's house or office, searching it and seizing his goods against his will are tortious acts against which he is entitled to the protection of the court unless the acts can be justified either at common law or under some statutory authority. So if the statutory words relied upon as authorising the acts are ambiguous or obscure, a construction should be placed upon them that is least restrictive of individual rights which would otherwise enjoy the protection of the common law."

Having considered the relevant statutory provisions, the House of Lords concluded that the warrants in that case contained all the information which the statute required to be included.

35. However, the issue in the present case is not whether the warrant issued under the POBO contained enough information, but whether it was invalid by reason of the fact that it purported to authorise acts which the court had no power to authorise the officers to do, even though that authority had been conferred on the officers by another source. It is here that the facts in Rossminster repay some scrutiny. Under the relevant statutory scheme, a circuit judge, if satisfied about certain matters, was entitled to issue a warrant authorising officers of the Board of Inland Revenue to enter and search premises. The judge was not empowered to include in that warrant an authorisation for such officers to seize and remove materials found there. However, the relevant statutory scheme also provided that when an officer entered premises with the warrant, he could "seize and remove" various materials. The warrants in fact issued under this scheme authorised the officers to whom it was addressed to enter and search Rossminster's premises, but it also purported to permit the officers to "seize and remove" various materials. Thus, the warrants issued by the court purported to authorise the officers to do things which the court could not authorise. As in our case, the issue of the warrants was the key by which the officers gained entry to the premises and searched them. As in our case, their authority to seize and remove materials arose independently of, and not pursuant to, the warrant which had purported to confer it.

36. An analysis of the judgments in the Divisional Court and in the Court of Appeal and a glance at the arguments advanced by Rossminster's counsel in the House of Lords show that the validity of the warrants was never challenged on this ground. But one passage in the speech of Viscount Dilhorne indicates what his view of such an argument would have been. At p. 1005A-B, he said:

"Anyone reading the warrants issued in this case might reasonably conclude that the warrants themselves authorised seizure and removal. If that were the case, then it might lend some force to the contention that the warrants should give some indication as to the nature of the things which might be seized and removed. Strictly I see no need for the warrant to refer at all to the power to seize and remove but if it is thought desirable to do so, then it should be stated that the power of seizure and removal is exercisable by virtue of this sub-section."

I recognise, of course, that he was addressing the question whether the warrants were deficient in not giving some indication of the nature of the things which might be seized and removed, but it is plain that since seizure and removal was authorised otherwise than by the warrants, the fact that the language of the warrants might have given the impression that they authorised the seizure and removal was not material.

37. If Rossminster points us in the direction of the answer to the conundrum posed in the present case, the judgment of Lord Hoffman in Williams lights the way. That was also a case in which a warrant (which had been issued by a Justice of the Peace) had purported to authorise officers to do things which the relevant statutory provision had not empowered him to authorise. The relevant statutory provision had empowered a Justice of the Peace to authorise customs officers to enter and seize "such house or other place" in which it was reasonably suspected that certain materials were being kept, and to seize and carry away "uncustomed or prohibited goods, or any books or documents relating to uncustomed or prohibited goods, as may be found therein". The actual warrants which had been issued had purported to authorise the officers to search, not merely the premises, but also "all persons found therein", and to seize, not merely goods of the kind described, but also "other articles reasonably supposed to have been used in connection with [the] goods".

38. One of the questions which the Privy Council had to decide was whether these defects in the warrant, which conferred greater powers than the empowering statute permitted, affected the validity of the warrant. Lord Hoffman said at p. 365F that "it would be wrong" to create "formal requirements for the validity of a warrant which the statute itself did not impose". He concluded at p. 365G-H:

"The alleged defects in the warrants are all errors of drafting, no doubt on the part of the officers of the revenue protection division by whom it was prepared for submission to the justice. So far as they may have led to substantive abuses, it is of course right that the applicants should have a remedy. But in a case like this in which they have caused little or no prejudice to the applicants, their Lordships think it would be wrong to treat them as punishable by invalidity of the entire search. Section 19(1) of the Constitution [which provided that in the absence of consent no person shall be subject to the search of his person or his property or the entry by others on his premises] was intended to serve a higher purpose than to promote accuracy in drafting in the revenue protection division."

The proposition of law which I derive from this statement of principle is that if the requirements for a valid warrant have been met, the fact that the warrant purports to authorise acts which the warrant cannot authorise does not render the warrant invalid if little or no prejudice has been caused to the persons affected by the issue of the warrant. In the Williams case, no such prejudice occurred because (a) when the warrants were executed a personal search did not actually take place, and (b) the "trivial excess of power" which the authority to seize "other articles" amounted to did not mean that the warrant was formally invalid. Likewise, in the present case, no prejudice occurred, despite the fact that the warrant issued under the POBO purported to authorise the seizure and retention of materials, because the officers had been lawfully authorised to seize and detain the materials by another route.

39. In reaching this conclusion, I have reminded myself of the desirability of the occupiers of premises to which a search warrant relates not to be misled by the terms of the warrant. In that connection, I accept that anyone carefully reading the warrant without knowing the provisions of section 17(1A) of the POBO would assume that the judge had been entitled to authorise the seizure and removal of materials found on the premises. As I demonstrate in a moment, no-one was in fact misled. Moreover, since the officers had the authority to seize and remove materials anyway, Apple Daily could only have been misled about the source of the authority, not its existence. I do not wish to minimise that, but in the final analysis it must be remembered that the principal purpose of a search warrant is to validate acts which would otherwise be tortious. I accept, of course, that the warrant serves another purpose, usefully summarised by Prof. Feldman in The Law Relating to Entry, Search & Seizure (1986), para. 502 as follows:

".... the warrant allows the occupier of the premises to be searched to satisfy himself that the officers who arrive and demand to be admitted are acting lawfully. This cuts down the risk of misunderstandings, violence and the criminal charges which often follow, and makes the job of the police easier."

For that reason, it would be unwise for officers to execute a search warrant without having it on them to show to the occupiers of the premises to which it relates. Indeed, at common law, an officer who executes a warrant must have it in his possession at the time, and must produce it if the occupier asks to see it: see Feldman, op. cit., paras. 6.22 and 6.24. But as Lord Hoffman said in Williams, the need for the occupier to be able to satisfy himself that the search and seizure is lawful does not render a warrant which misleads the occupier invalid in the absence of any prejudice to the occupier on that score.

40. In any event, the unchallenged evidence before Lugar-Mawson J was that while the ICAC officers were still executing the warrant, Apple Daily's legal advisers were aware that the power of seizure which the officers were exercising arose only from the authorisation which the Commissioner had given to the officer in charge. Thus, para. 15 of the affirmation of Chan Chor Keung, the officer in charge of the execution of the warrants, reads, so far as is material:

"During the search .... a solicitor .... who represented Apple Daily .... arrived at the premises .... I explained to him what we were investigating .... I showed him both warrants and served him with a copy of [the] warrant pursuant to [the POBO]. At a later stage, he told me that the warrants only empowered ICAC officers to search but did not give us any authority to seize. I explained to him that under section 10C(1)(c) of the [ICACO], we were empowered to make seizure. I showed him my ICAC warrant card and the back of it on which the power of seizure was printed."

41. In the course of his interesting submissions, Mr Dykes took us on a well-researched historical survey of the approach of various common law jurisdictions to search warrants. I intend no discourtesy to Mr Dykes if I do not refer to the fruits of his research in this judgment. I have attempted to focus on the particular issue which arises in this case, namely the effect on the validity of a search warrant of there being included in a warrant issued by a court an authorisation which the court did not have the power to confer but which the officers to whom the warrant was addressed had by another route. The only case which he cited which I regard as assisting on that particular question was the decision of the New Zealand Court of Appeal in R. v. Saunders [1994] 3 NZLR 450. At pp. 467-468, Fisher J summarised the principles relating to the form and contents of such warrants. He said:

"(e) A legal defect in a warrant will not invalidate it unless there is either an express or implied legislative intention that such a defect will render the warrant a nullity or the defect has caused a miscarriage of justice.

(f) .... Whether a failure in [any particular respect] renders the document a nullity must be determined on a case by case basis having regard to the seriousness of the defect and underlying legislative intentions ....

(h) Whether a defect in a warrant has caused a miscarriage of justice could be determined only upon an examination of the events which have occurred since the issue of the warrant. If no one had been misled as to the legitimate scope and purpose of the warrant, and the warrant had been properly founded upon the application, there could be no relevant miscarriage of justice."

I think that these principles are in line with the thinking of the Privy Council in Williams. Applying these principles, I have not discerned any express or implied intention in the POBO that a defect in the warrant which causes no prejudice should invalidate the warrant, nor was anyone misled nor has the defect in the warrant caused a miscarriage of justice.

The description of the materials to be seized

42. The language of the warrants describing the materials which the officers could seize, viz. materials which are "likely to be relevant to the investigation for the purpose of which this search warrant is issued", is, of course, different from the description of the materials which their authorisations from the Commissioner permitted them to seize, viz. materials which they had "reason to believe to be or to contain evidence of any of the offences referred to in section 10 [of the ICACO]". But is the latter wider than the former? And if so, is it wider by an amount which renders it more than a "trivial excess of power"? And if so, has any prejudice been caused to Apple Daily by the exercise by ICAC officers of the excessive power which the warrants purported to give them?

43. For my part, I accept that the difference in the wording could amount to a difference of substance rather than a mere difference of language. Part XII of the IGCO itself recognises a difference between material which is likely to be "of substantial value to the investigation of an arrestable offence" and material which is likely to be "relevant evidence in proceedings for the arrestable offence": see section 84(3)(a)(iii). But whether the difference of wording amounted to a difference of substance in the present case is another matter entirely, and the starting point is to decide what the language of the warrants and the language of section 10C(1)(c) actually mean.

44. So far as the warrants are concerned, it is important to note that the materials are limited to those which are likely to be relevant to the investigation for the purpose of which the warrants were issued. As I have said, the investigation relates to the allegation that employees of Apple Daily have offered advantages to police officers and police communications officers to obtain classified information about police investigations and operations. Accordingly, the materials were limited to those which were likely to be relevant to the investigation into that allegation.

45. So far as the language of section 10C(1)(c) is concerned, Mr Peter Duncan for Apple Daily (who argued this aspect of the case on its behalf) contended that the statutory words should be construed to mean "anything which is believed to be or to contain evidence which could be relied on in proceedings for any of the offences referred to in section 10 of the ICACO to prove that such an offence has been committed". That construction is based on the construction adopted by the court in Tung Hing Technology Investment Ltd. v. The Commissioner of Customs and Excise (HCAL 95/98) of section 122(1)(b) of the Copyright Ordinance (Cap. 528), which empowers an officer to "seize, remove and detain .... anything which appears to him to be ...., or to be likely to be ...., evidence of an offence under this Part". I do not think that this analogy is entirely apt. The construction adopted in Tung Hing has to be seen against the background of what was seized, namely video compact discs and machines which had been used for producing and printing them. I think that there are significant differences between non-documentary materials of that kind and documentary materials of the kind at which search warrants issued under the POBO and Part XII of the IGCO are aimed. The court in Tung Hing was much influenced by a distinction along those lines.

46. How, then, should section 10C(1)(c) of the ICACO be construed? I do not think that the words "evidence of any of the offences referred to in section 10" should be construed as referring to documents which could be relied on as evidence to prove the commission of such an offence. That would impose too much of a burden on the officers. They cannot be expected to make snap judgments as to (a) the admissibility and (b) the probative value of the documents they are seizing. In my view, the words "evidence of any of the offences referred to in section 10" should be construed as referring to documents which might assist in determining (a) whether an offence referred to in section 10 of the ICACO has been committed and (b) by whom such an offence may have been committed.

47. Moreover, the words "or to contain" should not be overlooked. Officers executing a search warrant may be confronted by a huge amount of documentary material, which may be contained in different files and filing cabinets on the premises to which the warrant relates. It may be quite impossible, having regard to the volume of the material, to trawl through the files there and then to see what documents might throw any light on whether an offence has been committed and by whom. The words "or to contain" enable the officers to seize the files and the filing cabinets in which documents are contained, so that the documents contained in them can be inspected at a proper pace, and their ability to assist can be determined. Once those documents are found not to be able to assist, they should, of course, be returned to the occupiers of the premises from which they were taken.

48. Once section 10C(1)(c) is construed in this way, it can be seen that the language of the warrants is, in terms of their practical effect, no wider than the language of section 10C(1)(c). If the language of section 10C(1)(c) permitted the Commissioner to authorise his officers to seize documents which they have reason to believe might assist in determining whether an offence of bribery under section 4 of the POBO has been committed and if so by whom, that is no different, in practical terms, from an authority to seize documents which are likely to be relevant to the investigation of an allegation that such an offence has been committed.

49. But even if the language of the warrants had been wider than section 10C(1)(c) permitted, and by an amount which might be regarded as rendering the seizure and detention of the materials more than a "trivial excess of power", it is arguable that, in the events which have occurred, Apple Daily was not caused any prejudice and no miscarriage of justice has taken place. The critical fact is that the materials seized have been sealed. ICAC officers have not yet had the opportunity to inspect them and see what they reveal. If materials which should not have been seized had been seized, they could have been returned to Apple Daily as soon as it was appreciated that they did not come within the class of materials which could have been seized. And if it is said that ICAC officers would have had the advantage of inspecting the materials if only for that purpose, the answer is that even if the warrants had been properly worded, the officers would still have had to inspect the documents (albeit at Apple Daily's premises) to see if they came within that wording. However, an argument along these lines was not developed before us, and I do not think that it would be right to express a concluded view about it.

Conclusion

50. For these reasons, the criticisms which have been levelled against the warrants do not, in my view, justify treating them as invalid. It follows that the appeal from Lugar-Mawson J's refusal to set them aside must be dismissed. At present, I see no reason why costs should not follow the event, and the order nisi which I would make is that Apple Daily must pay to the Commissioner his costs of the appeal, to be taxed if not agreed. However, I recognise that Apple Daily will want to consider its position with its advisers, and in my view it would be appropriate to preserve the status quo for a few more days. Accordingly, I would restrain the Commissioner from permitting officers of the ICAC from inspecting any of the documents seized by them on 29 November 1999 or any of the documents downloaded or retrieved from the computers seized by them on that date until 4.30 p.m. on 26 January 2000 or further order in the meantime.

51. There are three final comments I wish to make:

(i) The problems which bedeviled the warrants in this case would not have occurred if they had followed the statutory language. I do not wish to be judgmental, but those responsible for preparing the drafts of warrants which a judge is being asked to issue, and the judge himself, should bear in mind that if the statutory language is followed, they will not go far wrong.

(ii) If this appeal had been allowed and the warrants had been set aside, I suspect that that would have been only a temporary respite for Apple Daily. It would have been open to the Commissioner, prior to the handing down of this judgment, to apply ex parte for warrants (this time following the statutory language), but without prejudice to his contention that the warrants issued on 25 November 1999 were valid, in case those warrants were set aside on this appeal. If such an application had been granted, and new warrants had been issued, they could have been drafted in such a way as to permit them to be executed on the materials which were seized on 29 November 1999 and which are now being retained by the ICAC pending permission to inspect them.

(iii) I have given some thought to how this judgment should be headed. Para. 7 of the Practice Direction relating to Civil Appeals to the Court of Appeal requires such appeals to bear the same title as that which obtained in the court of first instance. However, the proceedings bore different titles there, as the application for the search warrants was not a lis inter partes, whereas the application to set them aside was. The heading which I have given to this judgment reflects the title to the application to set aside the warrants, because it was from the order made on that application that this appeal was brought.

Nazareth V-P:

52. I agree with the judgments of the Chief Judge and Keith JA.

53. I add the following. The main thrust of Mr Dykes' submission seemed to be his contention that a rigorous and critical review of search warrants as being serious encroachments upon fundamental rights, was called for on the part of the courts. So that conditions applying to their issue had to be, he said, fully complied with or the validity of the warrant would be imperilled. Likewise, surplusage purportedly conferring powers that the issuing authority was not authorised to confer and with which the executing officers had already been armed in some other way, must result in the warrants being invalidated, even if they had not occasioned any prejudice. He developed his submissions by reference to various statutory provisions. I do not find it necessary to refer to those provisions as my Lords have addressed them fully. He also sought support from certain decisions in other common law jurisdictions bearing upon search warrants. While they did not appear to me to go as far as Mr Dykes contended, they do reveal some difference in the effect they held to result from deficiencies in warrants, in particular minor deficiencies that apparently did not have any practical or consequential significance. In that regard, the relevant authorities that apply in Hong Kong are R v Inland Revenue Commissioners and Another, Ex p. Rossminster Ltd and others (D.C.) [1980] AC 952 and Attorney-General of Jamaica v Williams and another [1998] AC 351, in both of which the House of Lords gave their judgments before the resumption of sovereignty on 1 July 1997. They would thus be definitive of the common law applied to Hong Kong by Article 18 of the Basic Law: see Tang Siu Man v HKSAR [1998]1 HKC 371 at 405I. It has not been suggested that there has since been any departure from what was held in those judgments, in Hong Kong, or of persuasive authority in the United Kingdom. In the result, even if the effect of the decisions in other jurisdictions goes as far as contended by Mr Dykes, insofar as they depart from Rossminster and Williams, they would have to be rejected, at any rate by this Court. In any event, it seems to me that the approach adopted in Rossminster and Williams is, with respect, to be preferred.

54. Mr Dykes' other major submission relates to the effect of provisions relatively recently introduced into the Interpretation and General Clauses Ordinance ("Cap. 1 ") to protect the confidentiality of what is there defined and referred to as journalistic material. My Lords have dealt amply also with that submission. However, there is one aspect of it upon which I wish to add the following observation. It concerns s.83 of Cap. 1, the material provisions of which are as follows:

"Power to enter and search or seize

            A provision in any Ordinance which confers on, or authorizes the issue of a warrant conferring on, any person the power to enter any premises and to search the premises or any person found on the premises ... shall not, in the absence of an express provision to the contrary, be construed as conferring, or authorizing the issue of a warrant conferring, a power to enter premises where such entry is for the purpose of searching for or seizing material which is known or suspected to be journalistic material."

Mr Dykes submitted that with respect to the provisions in the other ordinances relied upon as authorising the warrants or entry and search in question, there is no "express provision to the contrary" to counter the protective general exclusion in s.83 of "journalistic material" from powers authorising searches and search warrants. That is plainly right. But if it is thought that the express provision envisaged in s.83 must be express provision in the particular authorising ordinance concerned as opposed to being in Cap. 1, then in my view the following is a sufficient response: That s.83 does not require the "express provision to the contrary" to be provided in the empowering ordinance, and there is no good reason why it should.

55. Given the conclusions reached in their Lordships' judgments, it is not necessary to rely upon or address the discrete grounds relied upon by Mr Zervos for the respondent, in his submissions in reply. In particular, I refrain from expressing any view upon whether the applications for the warrants should be regarded as having been made in criminal, as opposed to civil proceedings subject to the Rules of the High Court.

Chan CJHC :

56. I agree, for the reasons given by Keith JA, that this appeal should be dismissed. I also agree with the orders proposed by him. In view of the importance of the issues involved, I would like to add a few words on the validity of the warrants, the subject matter in this case.

Guiding principles

57. The guiding principles which the court should bear in mind when examining a warrant which is being challenged must be these:

(1) a warrant involves an erosion of a citizen's rights and privacy and must therefore be justified by law. This hardly needs any authority in support;

(2) the court has a constitutional duty to supervise the exercise of power in the issue and execution of a warrant and to safeguard citizens against abuse. See R v Inland Revenue Commissioner, Ex-parte Rossminster Ltd, [1980] AC 952, HL, Lord Wilberforce at 997H, Viscount Dilhorne at 1003H, Lord Diplock at 1008D, Lord Salmon at 1015B, Lord Scarman at 1022A and Attorney General of Jamaica v Williams & Anor (1998) AC 351, PC, Lord Hoffman at 358F;

(3) the court must construe the statute which empowers the issue of a warrant to determine its validity and in doing so, should adopt a strict and restrictive construction. Any doubt which may arise should be resolved in favour of the citizens. See Rossminster, Lord Wilberforce at 998A, Lord Diplock at 1008D, Lord Salmon at 1017E and Williams, Lord Hoffman at 363B;

(4) the court in discharging this constitutional duty must balance two competing aspects of the public interest, namely, the interest in the detection of crimes and bringing criminals to justice on the one hand and the interest in the protection of the citizens' rights and privacy on the other. See Rossminster, per Lord Diplock 1007G, Lord Salmon at 1015B and Williams, per Lord Hoffman at 361A.

Decisions in Rossminster and Williams

58. Both counsel for the ICAC and the judge in the court below relied heavily on Rossminster and Williams. Counsel for Apple Daily seeks to argue that these two cases should not be applied in the present case and are in any event distinguishable. It is important to examine what these two cases have decided. In my view, what the House of Lords decided in Rossminster was:

(1) it is a matter of construction of the empowering statute to decide (a) the scope of the powers of the issuing authority, (b) the conditions which have to be satisfied for the issue of the warrant, and (c) what is to be stated in a warrant. The second and third matters go to what are sometimes called the essential and formal validity of the warrant respectively;

(2) if it appears that a warrant falls strictly and exactly within the provisions of the empowering statute in that all the conditions have been satisfied, it would be upheld;

(3) if the empowering statute does not require any particular form for the warrant, it would be held valid so long as it contains the basic details which are provided for in the statute.

59. The Privy Council in Williams held that if the requirements of the empowering statute have been complied with, the validity of the warrant would not be affected by a trivial excess of power, the absence of a reference in the warrant to the power under which it is issued or any errors of drafting not leading to substantive abuse.

60. Mr Dykes, counsel for Apple Daily, refers us to a number of decisions in other jurisdictions. Having examined these authorities, I do not think they have departed from the above general principles and the decisions in Rossminster and Williams. Counsel prays in aid Article 29 of the Basic Law. I agree that this article confirms and entrenches a citizen's property rights, but do not think that it goes so far as to change the common law principles to which I have referred.

Warrants in this case

61. Applying these principles and decisions to the present case, if it was shown that (a) all the requirements contained in the relevant provisions of Cap 201 and Cap 1 relating to the issue of warrants under those provisions have been complied with and (b) what was required to be stated in the warrants by the relevant provisions of these ordinances were contained in the warrants, the judge would be entitled to conclude that they are valid and that their validity is not affected by unnecessary and inaccurate details appearing therein.

62. Section 17(1A) of Cap 201 under which Gall J exercised his power to issue the s.17 warrant requires that he must be satisfied that there is reasonable cause to believe that in any premises there is anything which is or contains evidence of an offence under that ordinance. From the recital of the warrant, it is clear that there were materials placed before the judge in the form of an affirmation of an officer of the ICAC and that upon reading such materials, the judge was satisfied that the conditions in s.17(1) (which I think can only be a reference to s.17(1A)) had been met.

63. With regard to the s.85 warrant, s.85(1) and (2) require that (a) the application has to have been approved by a directorate disciplined officer, (b) the applicant has the power under some other ordinance to enter, search and seize any material in the premises and (c) the applicant is applying for a warrant for the purpose of searching for or seizing materials which are known or suspected to be journalistic materials. Under S.85(3), before the judge issues a warrant, he must be satisfied that the conditions specified in s.84(3)(a), (c) and (d)(i) and one of the conditions in s.85(5) are fulfilled. The effect of s.84(3)(a) and (d)(i) is that the judge must be satisfied that there are reasonable grounds for believing that

(1) an arrestable offence has been committed;

(2) there are journalistic materials on the premises to be searched;

(3) those materials are likely to be either of substantial value to the investigation of the arrestable offence or relevant evidence in proceedings for that offence; and

(4) it is in the public interest that a warrant be issued, having regard to the benefit likely to accrue to the investigation and the circumstances under which a person in possession of the materials holds them.

Section 84(c) and 85(5) relate to the method of investigation. Section 85(7) is concerned with disapplying the requirement of sealing the seized materials under s.85(6). In the recital of the warrant, it is clearly stated that the judge had an affirmation of an ICAC officer and that upon reading the materials before him, he was satisfied that all the above conditions had been met.

64. There is no provision in either Cap 201 or Cap 1 as to what must be contained in the warrants. Both warrants stated clearly the provisions pursuant to which the applications were made and to which the judge issued the warrants. They also named the officers who had been authorised to conduct the operation and disclosed the premises which were to be searched and the purpose of the search.

65. Having examined the two warrants in question and bearing in mind the true construction of the relevant provisions of Cap 201 and Cap 1, I take the view that all the requirements of the empowering statutes had been complied with. They were both prima facie essentially and formally valid.

Complaints in this case

66. There are two complaints in this case. The first relates to the s.17 warrant only. It is alleged that it contained a serious defect on the face of it in that it purported to authorise the seizure and retention of the materials referred to in the warrant when the judge who issued the warrant did not have the power under section 17(1A) of Prevention of Bribery Ordinance, Cap 201 to do so. The second complaint relates to both the s.17 and s.85 warrants. It is alleged that these warrants contained a further defect in that they purported to give a power of seizure and retention of material which is much wider in scope than the power which the investigating officers have under section 10C(1)(c) of the Independent Commission against Corruption Ordinance, Cap. 204. The question is : Do these alleged defects vitiate the warrants?

The first alleged defect

67. In so far as the first alleged defect is concerned, the situation in the present case is not dissimilar to that in Rossminster. In that case, the statute pursuant to which the warrant in question was issued was s. 20C(1) of the Taxes Management Act 1970. That provision empowered a judicial authority to issue a warrant authorising a revenue officer to enter and search premises specified in the information. The judicial authority had no power under that provision to authorise seizure and removal of things found in the premises. But the warrant in question authorised not only the entry into and the search of the premises but also the seizure and removal of things found therein. There was however a statutory power under section 20C(3) of the same Act which conferred upon the officer, on entering the premises under a warrant issued pursuant to s.20C(1), a power of seizure and removal. The situation was hence quite similar to that in respect of the s. 17 warrant in that in both cases, the judge did not have power under the empowering statute or provision to authorise seizure and retention of materials found in the premises under search, but the officers had a separate and independent power of seizure and removal under another statute or provision. I have not lost sight of a difference between the two cases in that whereas the power of seizure of the revenue officer in Rossminster came directly from a statutory provision, the power of seizure and retention in the present case was only vested in the investigating officers by an authorisation of the Commissioner of the ICAC who was in turn empowered by statute to do so. However I do not see any difference in principle for the purpose of determining whether this would affect the validity of the warrant.

68. In Rossminster, it would seem that none of the judges in the Divisional Court, the Court of Appeal or the House of Lords considered that the warrant in that case was invalid because it contained an authorisation of seizure and removal which the judge did not have power under the statute to authorise. Although the parties in that case never raised this ground, it would be most surprising that the judges had failed to notice its importance if this had been of crucial effect on the validity of the warrant in question. In fact, two of the Law Lords commented on this point in their judgments, but did not hold that the warrant was invalid on this ground. It is important to note what Viscount Dilhorne said at p. 1005A and G :

"Anyone reading the warrants issued in this case might reasonably conclude that the warrants themselves authorised seizure and removal. If that were the case, then it might lend some force to the contention that the warrants should give some indication of the nature of the things which might be seized and removed. Strictly, I see no need for the warrant to refer at all to the power to seize and remove, but if it is thought desirable to do so, then it should be stated that the power of seizure and removal is exercisable by virtue of this subsection.

A warrant issued under the section will be invalid if the provisions of the section are not complied with or if there is some rule of law independent of the section that requires the particular offence or offences to be stated. These warrants did comply with the section and I know of no rule of law that requires that... Here the warrants were not general. They authorised the named persons to enter named premises and he searched them. On entry with such a warrant, their power of seizure and removal was limited by, controlled by and authorised by sub-section(3)."

69. The primary purpose of a warrant is to authorise the officer to do something which would be unlawful without the warrant. It also serves the subsidiary purpose of informing the householder what the officer is there for and what he would be doing. This would avoid any unnecessary confrontation. But so long as the officer does indeed have the power of seizure, it matters not whether such power comes from the empowering statute, the warrant itself or any other statute. In this case, the reference to the power of seizure in the s.17 warrant was not necessary since the investigating officers did have such power, albeit under another statute and by authorisation of the Commissioner of the ICAC. It has not been shown that Apple Daily has been prejudiced or affected in any way by the unnecessary inaccurate statement in the warrant. I do not think that the validity of the warrant can be affected.

The second alleged defect

70. Both the s.17 and s.85 warrants purported to authorise the seizure and retention of materials which were "likely to be relevant to the investigation for the purpose of which this search warrant is issued". In respect of the s.17 warrant, the judge had no power to authorise seizure but the officers had the power under s.10C(1)(c) of Cap 204 to seize and retain materials which the officers "have reason to believe to be or to contain evidence of any of the offences referred to in s.10" of that ordinance. In respect of the s.85 warrant, the power of seizure authorised by the judge under s.85(3) could not by virtue of s.85(4) be wider than the power which the officers have under s.10C(1)(c). There was thus apparently a discrepancy between s.10C(1)(c) and what appeared in the warrants.

71. Mr Dykes argues that the s.85 warrant was defective because it recorded the existence of a power of seizure which did not exist. With respect, I do not consider the matter in this light. Section 85 does confer a power of seizure. It is the power stated in the warrant which is put into question because of the difference in wording. I would prefer to consider this as a warrant purporting to give a power of seizure which may arguably go beyond that permitted by the empowering statute. Counsel's argument is, it would seem, an attempt to try to distinguish this case from Williams.

72. Mr Dykes further submits that s.10C(1)(c) of Cap 204 cannot be used to seize journalistic materials. I do not think Mr Zervos disputes that. But the ICAC officers' power of seizure under s.10C(1)(c) was to be exercised in relation to non-journalistic materials under the s.17 warrant which was not issued to cover journalistic materials. Section 85 does contain a power to authorise seizure of journalistic materials. The judge who issued this warrant purported to exercise that power and authorised seizure of such materials. The warrant referred to the authorisation to seize such materials under that section. The ICAC officers seized the journalistic materials pursuant to the warrant and not their power under s10(C)(1)(c). However, s. 85(4) provides that a warrant issued under s.85(3) cannot authorise any seizure other than that as would be or could have been authorised under some other legislative provision which was s.10C(1)(c). Hence, the issue is whether the power of seizure under the s.85 warrant was wider than that under s.10C(1)(c) and if so, whether this would vitiate the validity of the warrant.

73. The situation is similar to that in Williams. In that case, the relevant statute, section 203 of Customs Act, empowered a resident magistrate or justice by special warrant to authorise an officer to enter and search premises and to seize and carry away any "such uncustomed or prohibited goods, or any books or documents relating to uncustomed or prohibited goods, as may be found therein." The warrants in question went beyond that power and purported to authorise also the seizure and removal of "all such goods and 'other articles' reasonably supposed to have been used in connection with the goods which may be found in the said place...". Although the warrants in that case were challenged on other grounds, the Privy Council discussed this excess in power. It is important to note the following remarks of Lord Hoffman:

"... the taking of things other than documents (such as the pocket calculator) was probably not authorised by the warrant (unless "articles" is given a wider construction than the context would seem to justify) and certainly not authorised by the statute. Unless, therefore, the taking of these articles could be justified at common law, their removal was unlawful. But their Lordships do not consider that this trivial excess of power can vitiate the legality of the search and the taking of the documents probably authorised by the statute and the warrant.

Likewise, as their Lordships have already said, the taking of property other than books and documents could not be justified by the word "articles" in the warrant, because this went beyond the statutory power. But this does not mean that the warrant was formerly invalid."

74. When Lord Hoffman referred to "trivial excess of power", he was, I think, not referring to the small items seized (e.g. pocket calculator) but to the excess of power by the inclusion of the words "other articles". He did not consider the excessive power as stated in the warrant as sufficiently serious to affect the validity of the warrant.

75. The learned Law Lord did not give any guidance as to what may be considered as trivial and what may be serious. The answer must depend on the circumstances of each case. In my view, matters for consideration would include: whether there is any practical difference between the power conferred by the statute and that purportedly given under the warrant, whether there is any departure from the objective or the scheme contemplated or created by the empowering statute, whether the discrepancy is likely to lead to any abuse of the power conferred by the statute and whether there is any prejudice to the occupier of the premises under search.

76. Is the discrepancy between s.10C(1)(c) of Cap 201 and what was stated in the warrants a trivial excess of power or is it sufficiently serious as to vitiate the warrants?

77. Before examining the discrepancy in question, I think it is worthwhile mentioning the following matters which are inherent in an operation of search and seizure. First, officers of law enforcement agencies would only apply (and are usually only permitted to apply) for a warrant in the course of making an investigation into some offences. Secondly, their objective is to gather materials which can show that suspected offences have been committed and who committed them. Such materials will hopefully be used as evidence in any subsequent trial of the suspect. Whether such evidence will be admissible is a question for the trial judge. Thirdly, the occupier of the premises under search may or may not be the suspect. Even if he is, the materials which the officers want to gather may sometimes show that he is not involved but that some other person is the real culprit. In other words, the materials to be searched or seized may incriminate a person under suspicion or they may exonerate him. Fourthly, the officers would have to make up their minds on the spot during a search and seizure operation as to what materials may be regarded as evidence and what may be used as such at a trial in future. Very often these are not easy decisions. Fifthly, some materials by themselves may not be considered as evidence at a particular stage of the investigation but their relevance and importance will only become clear when considered in conjunction with other materials gathered at some other stage of the investigation. Because of these uncertainties and difficulties, officers are not expected to be very precise and exact on what they are looking for and seize upon a search. They are even less expected to decide quickly what may in law constitute evidence for use in a future prosecution. If too strict and literal a construction is given to a power of search or seizure, this may tamper the effectiveness of an investigation. In order to make a search and seizure operation meaningful, a fair balance has to be struck between the interest in bringing criminals to justice and the interest of protecting citizens' right and privacy.

78. When one examines s.10C(1)(c)of Cap 204, three matters can be noted : (1) it is not necessary to show that what may be seized must be or contain evidence, it is sufficient that it is something which the officer has reason to believe to be or contain evidence; (2) what may be seized need not be something which is evidence, it can be something which contains evidence; and (3) the purpose of such power of seizure is clearly to assist in the investigation of the offences referred to in s.10 of that ordinance.

79. The warrants in question were clearly applied for and issued for the purpose of investigation into suspected bribery offences which are s.10 offences. Secondly, what may be seized under the warrants are materials which are likely to be relevant to the investigation. What can be considered to be likely to be relevant would depend on what the officers know and believe about the case under investigation. They will have to provide reasons to justify why they consider any particular materials to be likely to be relevant. Thirdly, materials relevant to the investigation may be materials which show that a s.10 offence had been committed and/or a particular person had committed such offence, in which case, such materials would be used as evidence in a future prosecution. They may also be materials which lead to other or further investigation, in which case, they may form part of the chain of evidence or they may later become evidence when they are considered in conjunction with other information or materials. This may not be apparent to the officers during the search and seizure.

80. Hence while the wording in section 10C(1)(c) was different from that appearing in the warrants in question, it would, in my view, make little or no practical difference. Nor do I think there is any departure from what is contemplated by the empowering statutes by the inclusion of those words in the warrants. The judge who issued these warrants had to be satisfied that there was reasonable cause to believe that in the premises there was something which is or contains evidence (the s.17 warrant) or that the materials to be searched and seized were likely to be either of substantial value to the investigation of the arrestable offence or relevant evidence in proceedings for that offence (the s.85 warrant). The wording in the warrants was, in my view, consistent with the objective of the statutory provisions.

81. It has not been shown by Apple Daily that the discrepancies in the warrants had led to or were likely to lead to abuse. Nor has it been shown that Apple Daily has been prejudiced.

82. Having regard to these matters, I have come to the conclusion that the discrepancies appearing in the warrants are not sufficiently serious as would affect their validity.

83. The result is that we dismiss the appeal and make an order nisi that Apple Daily do pay the costs of this appeal. We also order that the Commissioner be restrained from permitting officers of the ICAC from inspecting any of the documents seized by them on 29 November 1999 or any of the documents downloaded or retrieved from the computers seized by them on that date until 4.30 p.m. on 26 January 2000 or further order in the meantime.

Representation: