XCHRX SHUNTAK HOLDINGS LTD & OTHERS v. THE COMMISSIONER OF POLICE

THE JUDGE HAS AUTHORISED PUBLICATION OF THIS JUDGMENT

1994 MP No. 1366 and 1367

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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IN THE MATTER OF an application by Shun Tak Holdings Limited & Others for Judicial Review under Order 53, rule 5, Rules of the Supreme Court

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SUPPLEMENTAL JUDGMENT

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1. This judgement is supplemental to the judgement I handed down on 27 July 1994 and which should be read with this judgement.

2. Shortly after handing down the judgement, the documents in question were handed to my clerk. They remained in the custody of the court thereafter.

3. Shortly after the documents were handed to my clerk. Mr Huggins QC on behalf of the applicants requested an urgent hearing before me which I held later that day and at which Mr Schapel was good enough to attend.

4. Mr Huggins QC repeated an offer which had been previously made to the effect that if, on perusing any of these documents, I should be in a state of uncertainty, he would be pleased to attend before me to explain precisely why the claim to Legal Professional Privilege had been made. I was not at all happy at the prospect of an ex parte communication of this nature but Mr Schapel sensibly recognised that I might require assistance and that in those circumstances, he did not object.

5. On Friday, 29th July 1994, I asked Mr Huggins QC to appear before me to clarify the claim for privilege in relation to some documents and I was satisfied with the explanation he gave. In fact most of the documents that I queried had already been handed back to the Police because it was obvious that they were not covered by privilege.

6. I have now had an opportunity of taking a very careful look at the documents in question and my conclusions are as follows:

(1) They are all clearly covered by Legal Professional Privilege and they excited no suspicion to the contrary whatsoever in my mind when I read them;

(2) I am also satisfied that the privilege attached to these documents had not been overridden by the circumstances in which any document came into being;

(3) None of the documents supported the allegation against Mr Anthony Carter that he had been party to any plan to destroy any documents or any allegation of impropriety against any member of the professional team which has been put together by these applicants in order to combat the allegations made against them by the Inspector and the suspicions raised thereby in the minds of the CCB.

7. In all the circumstances therefore the claim for privilege was a valid claim and, in the light of the law as I have attempted to set out in my earlier judgement, these documents were immune from search.

8. In those circumstances, the applicants are entitled to the relief which they seek in these judicial review proceedings and I will shortly hear the parties on the form of order and any other consequential matters.

9. As a final point, in the course of the hearing on 27 July 1994, Mr Huggins QC pointed out that Mr Mark Johnson of Herbert Smith, to whom I had made reference in my judgement, had in fact acted for the prosecution in the trial of Oscar Lai and others and that it was therefore not accurate to state that he was not an experienced criminal lawyer. By my comments in my judgement, I did not intend to state that Mr Johnson had no experience at all in criminal matters. All I intended to question was whether his experience was that of a seasoned prosecutor. I certainly intended no disrespect to Mr Johnson's professional ability in criminal matters.

10. The discretion of any Judge hearing an application such as this to decide whether he wishes to inspect the documents and he will take into account the various factors that are placed before him. I have not intended to lay down any precedent for future cases as each case must be considered on its own facts. However, I am quite satisfied in my own mind that it was correct for me to look at the documents and dispel some of the damaging matters which had been raised in support of this application that I should inspect the documents. In my earlier judgement, I referred to the terms of the document taken from Mr Tam on his arrest which naturally excited suspicion. Mr Huggins QC had submitted that there was no connection between this document and the documents in respect of which privilege had been claimed. I saw nothing in these documents which indicated any connection whatsoever between them and the Tam notes and I think it important to state so in this judgement so as to dispel any suggestion that the seized documents were part of any cover up by the applicants.