RE Commissioner of The Independent Commission Against Corruption, Ex parte Apple Daily Ltd.

HCMP7315/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.7315 OF 1999

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R U L I N G

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1. Counsel for the Independent Commission Against Corruption ("the ICAC") came before me on 25 November 1999, seeking two warrants to search premises at Tseung Kwan O which are occupied in part by a publishing company Apple Daily Limited. One of the warrants was sought in respect of journalistic material pursuant to sections 84 and 85 of the Interpretation and General Clauses Ordinance, Cap.1, the other was sought in respect of other material and was pursuant to section 17 of the Prevention of Bribery Ordinance, Cap.201.

2. The applications for warrants were supported by an affirmation of Yu Chun Cheong, Ricky. Being satisfied that the legislative requirements for the issue of the two warrants were made out by the contents of the affirmation, I ordered the warrants to issue.

3. On the evening of 29 November 1999, the warrants were executed and at or about 9:25 p.m., I was telephoned by Mr John Rose, solicitor acting for Apple Daily Limited, who sought to have counsel heard for an order that the material seized in the execution of the warrants be sealed until the hearing today. I agree to meet counsel, Mr Rose and representatives of the ICAC at the High Court at 10 p.m. Mr Rose undertook to advise the representatives of the ICAC of that hearing.

4. Having heard Mr Duncan of counsel ex parte, I made an order that the material seized be retained in locked premises and not be used in any manner by the ICAC until an inter partes hearing at 2:30 p.m. today.

5. Today Mr Duncan argued in respect of the warrant issued pursuant to section 17 of Cap.201 that it is defective on its face in two regards. Firstly, it empowers the representatives of the ICAC to seize and retain certain material in excess of the powers conferred by section 17(1) of Cap.201. Section 17(1)(a) 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 direct 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."

No power is set out in that section to seize or retain items found in the search. A power does exist to seize and retain material found by an officer pursuant to section 10C(1)(c) of the Independent Commission Against Corruption Ordinance. That section provides that:

"An authorized officer may 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."

Section 10 sets out various offences.

6. I am satisfied from the supporting affirmation to the application for the warrant that the suspected offences referred to therein fall within section 10 of the Ordinance.

7. I must first decide the effect of the inclusion of the words "seize and retain" in the warrant. The power to seize and retain is not contained in section 17 and the warrant is issued by virtue of that section. The words should not have been included. However, their inclusion does not mislead a reader of the warrant in any way because of the power to seize pursuant to section 10C(1)(c). The added words are therefore a surplusage which does not prejudice any person subject to the warrant.

8. The second argument raised by Mr Duncan are the words "which is likely to be relevant to the investigation for the purposes of which the search warrant is issued" contained in the warrant. The purpose for which the warrant was issued was to search for evidence to prove the matters alleged in the affirmation supporting the application for the warrant. Section 17(1)(a) provides that the court has to be satisfied that there is a "reasonable cause to believe" that in any premises or place there was anything which is or contains evidence of an offence under the Ordinance; and that a warrant be issued for those premises or place to be searched. I was so satisfied by the affirmation. The words complained of do not, therefore, affect the right to search. Mr Duncan argues that they do affect the right to seize and retain because that right is limited by section 10C(1)(c) of Cap.201 to the seizure and retention of items "the officer has reason to believe to be or contain evidence of any of the offences referred to in section 10". He argues that the wording of the warrant offends section 10C(1)(c). Firstly, because no sufficient inspection of the material took place before its seizure to raise in the mind of the officer a reason to believe it was or contained evidence; and secondly, because the words "likely to be relevant to the investigation" are far broader than the words "reason to believe to be or to contain evidence".

9. Mr McWalters argues that a detailed inspection of the material seized was not necessary as the affirmation in support of the application for the warrant sets out that the items seized were items of such a nature that the officer had reason to believe they were or contained evidence. With this I agree. He further argues that the only relevance of the seized material is its use as evidence, again I agree. The wording differs from the statute, but in these circumstances the effect is the same.

10. I am not satisfied that there is an arguable case that either of the two passages complained of by Mr Duncan, taken either separately or together, amount to an invalidation of the warrants as being outside the powers set out by the legislature or are in any way misleading to those affected by it. In respect of the first warrant, pursuant to section 17, I refuse the application to extend my order of 29 November 1999.

11. The arguments in respect of the second warrant fall in the same manner as the first with the exception that I do not have to be concerned with the inclusion in that warrant of the word "seized", that power is provided for in section 85(1) of Cap.1. For the reasons I have given, the power to retain material seized and the power in the warrant to search for, seize and retain items which are likely to be relevant to the investigation for the purpose for which the warrant is issued are not powers which I find under the warrant in any way defective. The application to extend my order of 29 November in respect of the warrant issued pursuant to sections 84 and 85 of Cap.1 is refused.

12. Consequent upon my order refusing the applications, Mr Duncan has applied for a stay of that order pending appeal.

13. It is always a matter of anxiety for a court where a stay is applied for in circumstances where to deny that stay may, in some measure, be to deny a successful appellant of the fruits of that appeal because the stay has removed the very matter which the appellant has appealed.

14. I have a discretion as to whether or not to grant the stay. I must weigh on one hand the fact that I am told that a number of people have been arrested in this matter, and that the materials which have been seized is relevant to their investigation. I am also mindful of the fact that a person under arrest must be brought before a court as soon as is practicable and, in any event, no longer than 48 hours after arrest. To a degree, therefore, the efforts of the investigating authority in this matter may be dependent upon access to the materials which they have seized. On the other hand, as I have said, the potential appellants in this matter may lose considerable benefit if they are successful in their appeal and if I refuse to grant a stay.

15. The nature of this appeal is to question the validity of the warrants consequent upon the wording on the face of those warrants when compared with the legislation that gave rise to them. Had it been an argument mounted upon the freedom of the press, or wider interests of society, then I may have seen more force in Mr Duncan's application. But having considered both sides of the argument, I am of the view that a proper exercise of my discretion is to decline the application to stay my order pending appeal.