CH'NG POH v. THE COMMISSIONER OF THE INDEPENDENT COMMISSION AGAINST CORRUPTION

IN THE COURT OF APPEAL

1996, No 152
(Civil)

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J U D G M E N T

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Litton, V.-P.:

1. The first judgment will be given by Bokhary JA.

Bokhary, J.A.:

2. On May 21 this year, a Magistrate issued a search warrant, doing so upon the application of the Independent Commission Against Corruption.

3. On the following day, May 22, that search warrant was executed at the offices of a firm of solicitors which has been referred to as "X & Co". Certain documents, mainly box files, were sealed in two locked metal trunks which the Independent Commission Against Corruption then took away after giving X & Co. a receipt for the documents taken.

4. On July 2, Mr Justice Seagroatt quashed the search warrant and ordered the return of the documents to X & Co. That is all that the learned judge did.

5. And on the following day, June 3, the judge ordered that the Commissioner of the Independent Commission Against Corruption may retain the documents pending the filing and serving of a Notice of Appeal - which the Commissioner was ordered to do by the 26th of that month.

6. Meanwhile, Mr Ch'ng Poh's solicitors were allowed access to the documents for certain purposes.

7. On July 26, the judge stayed his order for the return of the documents until receipt of this Court's judgment on appeal from his Order of July 2.

8. On August 21, this Court, by a majority, dismissed the appeal and upheld the judge's Order.

9. Since then, both Mr Ch'ng Poh and X & Co. have, in the words of Mr McWalters, "voluntarily surrendered all the documents" to the Independent Commission Against Corruption.

10. It seems to me that any appeal to the Judicial Committee of the Privy Council now would be academic. It may well be that Mr McWalters's understanding or misunderstanding of the majority's decision has caused him some anxiety. That is neither here nor there for present purposes. We cannot attempt to foist upon their Lordships the task of expounding the law of Hong Kong in general terms of no immediate relevance to the case at hand.

11. What the judge ordered was the quashing of a search warrant and the return of the documents seized thereunder. The case was about the documents, whatever points of law may or may not have been generated along the way. And the documents are no longer in contention. The Independent Commission Against Corruption has them without any challenge to its right to use them.

12. The Commissioner must be left to seek special leave from the Privy Council itself if so advised. But the application to us for leave is one which I am firmly of the opinion must be refused.

Liu, J.A.:

13. I assume that the respondent has nothing to say. I accept that this Court's construction directly involves the issue whether or not Mr A could and did commit any corruption offence under s. 9(1)(a) of the Prevention of Bribery Ordinance. It was upon that corruption allegation against Mr A that the search warrant was applied for. The documents seized under that warrant which has been declared invalid are still being left with ICAC nevertheless, but the alleged commission by Mr A of a criminal offence remains very much a live issue. To that extent at least, the decision of this Court embarks upon and involves a question of great general or public importance.

14. I would accede to the application of Mr McWalters.

Litton, V.-P.:

15. For the reasons given by Bokhary JA, I agree that the motion for leave to appeal to their Lordships in Council under Rule 2(b) of the Order-in-Council governing appeals to the Privy Council should be dismissed. This leaves it free to the ICAC to apply to their Lordships for special leave. The result is that by a majority the motion for leave is dismissed.