KEEN LLOYD HOLDINGS LTD AND OTHERS v. COMMISSIONER OF CUSTOMS AND EXCISE AND ANOTHER

CACV 97 and 107/2015
(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS 97 & 107 OF 2015

(ON APPEAL FROM HCAL NO 113 OF 2012)

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(ON APPEAL FROM HCAL NO 82 OF 2013)

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(Consolidated by order of the Honourable Mr Justice McWalters
dated the 22^nd day of May 2013)

(Heard together)

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JUDGMENT
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Hon Lam VP, Kwan JA and Harris J:

A. INTRODUCTION

A1. The applications for judicial review and the appeals

1.  The appeals we are concerned with relate to the execution of 16 search warrants by the Hong Kong Customs and Excise Department (“C&E”) in the course of a joint operation with the Huangpu Customs of the PRC (“the Mainland Customs”) in investigating suspected cross-border smuggling of goods on a massive scale from Hong Kong to the Mainland via the Pearl River and related money laundering activities by Keen Lloyd Holdings Limited and its subsidiaries (“the Keen Lloyd group”).

2.  The search warrants were issued judicially on various dates: 3 September 2011 (six warrants), 6 September 2011 (five warrants), 2 November 2011 (two warrants), 18 January 2012 (two warrants) and 30 January 2012 (one warrant).  Half of them were issued by a district judge pursuant to the Organised and Serious Crimes Ordinance, Cap 455 (“OSCO”), and the rest were issued by a magistrate pursuant to the Import and Export Ordinance, Cap 60 (“IEO”).  Save for the three warrants issued in January 2012, all 13 warrants were executed on 12 January 2012, between two to four months after they were issued.  That was the date when the covert operations of both C&E and the Mainland Customs turned overt simultaneously.

3.  Of the warrants issued under the IEO, three (numbered 3, 4 and 9) were in respect of non-domestic premises and it would not have been necessary to obtain a judicial warrant for these premises.  The searches could have been made without a warrant pursuant to section 21(1)(a), on the basis that the provision is constitutional.

4.  From 31 January 2012 to 21 June 2012, C&E provided to the Mainland Customs copies of some of the documents seized during the searches as well as hard disks cloned from some of the computer hard disks seized.

5.  On 24 August 2012, four companies of the Keen Lloyd group and another entity filed a notice of application for leave to apply for judicial review, challenging the decision of C&E to provide law enforcement agencies in the PRC with documents seized pursuant to the warrants. Leave to bring judicial review was granted on 31 August 2012.  This is HCAL 113 of 2012.

6.  On 6 May 2013, ten applicants including the five applicants in HCAL 113 of 2012 filed a notice of application for leave to apply for judicial review.  Leave to bring judicial review was granted on 22 May 2013 and this is HCAL 82 of 2013.  The application was amended twice in the course of the hearing to extend the scope of the attack on the warrants. In the final re-amended notice of application filed on 23 January 2014, challenge was made to (1) the decision of C&E to obtain the 16 search warrants for the main or substantial purpose of providing law enforcement agencies in the PRC with data, documents and materials seized, to further the investigation of offences committed in the PRC and eventually to use the seized properties for prosecution purposes in the PRC; (2) the decision of C&E to execute 13 search warrants three to four months after they were issued; and (3) the decision of C&E to apply for three search warrants under the IEO against three commercial premises, the decision of the magistrate to issue those three search warrants and the decision of C&E to execute those search warrants invalidly issued.  The challenge of the decisions in (3) went to the constitutionality of section 21(1)(a) of the IEO.

7.  The two applications for judicial review were consolidated and heard by McWalters JA, sitting as an additional judge of the Court of First Instance, on 11 days from August 2013 to January 2014.  The respondents to the applications were C&E and the Department of Justice.  Evidence was taken over four days in August 2013.  The deponents of affirmations filed on behalf of the respondents were cross-examined by the applicants.  The respondents did not apply to cross-examine the deponents for the applicants.  The judge handed down his judgment on 23 December 2014 (“the 1^st judgment”).

8.  By the 1^st judgment, it was declared that the three warrants issued in respect of commercial premises purportedly under section 22(2) of the IEO (numbered 3, 4 and 9) were issued without legal authority.  Insofar as the entry into those three premises could have been made without a warrant under section 21(1)(a), it was declared that this provision is inconsistent with Article 29 of the Basic Law and is unconstitutional.

9.  Of the 13 warrants executed two to four months after they were issued[1], it was held that they were not executed within a reasonable time from the date of their issue and had lapsed by the date of their execution.  A declaration was made that all seizures effected under the 13 warrants were illegally made and must be returned to the persons from whom they were seized and insofar as copies of these seizures have been provided to others, it was ordered that C&E should use its best endeavours to retrieve all such documents from those others.

10.  The judge rejected the applicants’ challenge that the decision of C&E to apply for the 16 warrants was for an unlawful or improper purpose.

11.  As for the decision of C&E to provide copies of some of the seizures to the Mainland Customs, the judge held that this was unlawful.

12.  The end result was that of the 16 warrants, only three (warrants numbered 6, 7 and 15) were held to be valid.  They were all issued pursuant to OSCO and executed within a reasonable time of their issue, and none of the seizures effected under them were shared by C&E with the Mainland Customs.

13.  After the 1^st judgment was handed down and before the order was sealed, C&E and the Department of Justice applied to vary one of the orders of relief being the declaration that section 21(1)(a) of the IEO is unconstitutional.  They sought a remedial interpretation of this provision to make it compliant with the Basic Law and the Hong Kong Bill of Rights (“HKBOR”).  By a judgment handed down on 16 April 2015 (“the 2^nd judgment”), the judge refused the application for remedial interpretation.

14.  Two appeals (CACV 97 of 2015 and 107 of 2015) were brought by C&E and the Department of Justice to challenge the decisions against them in the 1^st and 2^nd judgments.  For ease of reference, the appellants will be referred to in this judgment as “C&E” and the respondents to the appeals, who are the applicants to the judicial review, will be referred to as “the applicants”.

15.  The applicants brought a cross-appeal in CACV 97 of 2015 to challenge the finding that they have failed to show there was impropriety in the decision of C&E to apply for the 16 warrants.  They sought to vary the judgment asking for a declaration that the remaining three warrants (numbered 6, 7 and 15) are invalid and consequential relief regarding the seizures made thereunder.

16.  The appellants appeared by Mr Wong Yan Lung, SC[2] and the applicants were represented by Mr Adrian Bell, SC[3].

A2. Factual background

17.  For the purpose of these appeals, the background facts, as taken from the 1^st judgment, may be stated as follows.

18.  C&E has a substantial number of Hong Kong-Mainland cross-border smuggling cases and has maintained close liaison with the Mainland Customs.  On 1 March 2000, C&E and the General Administration of Customs of the PRC entered into a “Co-operative and Mutual Assistance Arrangement” (i.e. a Customs Cooperative Arrangement, “CCA”), by which they agreed to “provide co-operation and mutual administrative assistance in accordance with [the CCA] to the extent that their respective law, authority, competence and resources allow, with a view to ensure the proper application of the customs law to combat violations of the customs law” (clause 1).

19.  They agreed to exchange available intelligence on their own initiative or on request (clause 2).  Intelligence for this purpose would cover “intelligence which may be useful for the other party in the investigation of activities in violation of the customs law” and “intelligence in respect of the sources of illicit goods and illicit trafficking routes found by one party and relating to cases of the other party”.  They also agreed to assist each other with verification of documents and other matters relating to the import and export of goods (clause 3).  Where a request has been made by one party and permission has been granted by the other party, both parties may, at the agreed time and within their respective customs territories, conduct parallel enforcement operations at maritime and land boundary control points (clause 7).

20.  There is a provision governing the use of intelligence and documentation (clause 10) and this reads as follows:

“1. The intelligence, documentation and other materials obtained in accordance with this Arrangement shall solely be used for purposes as stipulated in this Arrangement and be subject to the terms and conditions imposed by the party providing the aforesaid intelligence, documentation and other materials.

2. Unless with the written consent of the party providing the aforesaid intelligence, documentation and other materials and subject to the terms and conditions imposed by that party, the aforesaid intelligence, documentation and other materials shall not be used for other purposes, including admitting as evidence in court.

3.     The intelligence, documentation and other materials obtained in accordance with this Arrangement shall be subject to the same confidentiality and protection as the same kind of intelligence, documentation and other materials obtained in the customs territory of the receiving party are subject to.”

21.  It is expressly provided in the CCA that the arrangement “bears no legal effect” (clause 16)[4].

22.  In June 2011, the Mainland Customs sent a request to C&E under the CCA for exchange of intelligence in the investigation into the suspected smuggling involving the Keen Lloyd group.  The evasion of PRC customs tax was estimated to be in excess of RMB 600 million.  Both C&E and the Mainland Customs coordinated their investigations and turned them overt at the same time on 12 January 2012 when arrests were made in both jurisdictions.  C&E executed 13 search warrants on that day and seized very large quantities of documents and materials.

23.  C&E subsequently made a request to the Mainland Customs under the CCA for assistance in the exchange of intelligence and in particular in comparing and cross-matching the documents seized in Hong Kong with the documentation and materials held by the Mainland Customs.  Copies of some of the seizures under the IEO determined by C&E as relevant for seeking assistance were provided to the Mainland Customs.  The screening process was done by 15 customs officers over two months under the supervision of Senior Investigator Lui Siu Fai.  The copy documents provided to the Mainland Customs were in relation to four search warrants and consisted of 34,387 pages and 981.9 GB of digitally stored materials on cloned hard disks (warrant numbered 3), 30 pages (warrant numbered 9), 351 pages (warrant numbered 4) and 2,300 pages and 30 GB of digitally stored materials on cloned hard disks (warrant numbered 14).

24.  All copies of the documents provided by C&E to the Mainland Customs pursuant to the CCA had a caveat printed on them to the effect that the information contained in the document was provided for “intelligence use only” and was not to be disseminated to a third party or used as evidence in court without the express permission from C&E.  A sticker was placed on the cloned hard disks provided to the Mainland Customs containing a caveat that the information contained was merely for “reference purpose” and not to be disclosed to any third party or submitted in law courts as evidence.

25.  As mentioned earlier, the copy documents and cloned hard disks were provided by C&E to the Mainland Customs from 31 January 2012 to 21 June 2012.

26.  The People’s Procuratorate commenced criminal prosecutions against a number of suspects in the PRC on 27 March 2013 and a number of individuals and companies were tried before the Intermediate People’s Court in Guangzhou in a criminal trial lasting from 4 to 28 June 2013.

27.  Six persons were charged in Hong Kong in September 2015.

A3. The issues in the appeals and cross-appeal

28.  These are the broad issues raised in the appeals and cross-appeal and they will be considered in the order as stated below:

(1)    whether section 21(1)(a) of the IEO is unconstitutional in that the restriction of the rights contained in Article 29 of the Basic Law and Article 14 of the HKBOR is not proportionate to the legitimate aim of crime prevention and detection in the context of the IEO (“the constitutionality issue”);

(2)    if so, instead of striking down section 21(1)(a) of the IEO, whether the court should apply a remedial interpretation to make the provision compliant with the Basic Law and the HKBOR (“the remedial interpretation issue”);

(3)    whether the delay of two to four months in executing the 13 warrants after they were obtained rendered the execution unlawful in that the warrants had ceased to have validity by the date of their execution (“the time limit issue”);

(4)    whether the decision of C&E to apply for the 16 warrants was unlawful in that the warrants were sought for the improper purpose of facilitating the investigation of the Mainland Customs, alternatively the presence of the improper purpose had tainted the decision of C&E (“the warrants application issue”); and

(5)    whether the decision of C&E to provide copies of some of the seized materials to the Mainland Customs was unlawful in that it was done for dual purposes inextricably intermingled with one another, one of which was the impermissible purpose of assisting the Mainland Customs to carry forward the Mainland investigation (“the information provision issue”).

A4. Some procedural considerations

29.  In the two applications for judicial review, the applicants challenged different decisions relating to the warrants and the uses of documents seized pursuant to them.  First, there were challenges in HCAL 82 of 2013 to the decisions of C&E to make the applications for warrants.   Second, there was a challenge in HCAL 82 of 2013 to the decision of a magistrate in issuing 3 warrants in respect of non-domestic premises under the IEO.  Third, there were challenges to the execution of the warrants by C&E in HCAL 82 of 2013.  Fourth, there were challenges to the provision of information and copies to the Mainland Customs in HCAL 113 of 2012.  All these challenges were brought by way of applications for judicial review long after the execution of the warrants and the seizures of the documents.

30.  Whilst we appreciate that the alleged misuse of the information and documents in terms of provision of the same to the Mainland Customs was not immediately discovered by the applicants and this could account for the delay in the filing of the application for judicial review in HCAL 113 of 2012, this could not have accounted for the delay in respect of the other challenges.

31.  Further, it is difficult to see how it is appropriate to proceed by way of judicial review to challenge the decisions of C&E to apply for warrants after the grant of the warrants and their full execution.  By that stage, the decisions of C&E to apply for warrants were overtaken by what happened after the warrants were issued and the execution of the same.  Actually, the decisions of C&E to apply for warrants would not by themselves bring about substantive legal consequences, and as such they are not decisions amenable to challenge by way of judicial review, see R (Shrewsbury and Atcham Borough Council) v Secretary of State for Communities and Local Government [2008] 3 All ER 548; ATV v Chief Executive in Council [2012] 3 HKLRD 1; TVB v Communications Authority [2013] 5 HKC 593.  It is all the more so after the warrants were granted by a judicial officer and the execution of the same.  Whatever substantive legal consequences impinged upon the rights of the applicants would be those stemming from the issue and the execution of the warrants.

32.  In the course of the hearing, the court canvassed with counsel the possibility of the applicants going back to the judicial officers granting the warrants to set aside the same when C&E executed the same.  At the hearing, Mr Bell did not submit that such a course was not open.  However, after the hearing, without leave of the court, counsel put in a supplemental note raising, amongst other thing, the argument that it is not legally permissible for a person served with a warrant to come to court to set aside the same.  Counsel relied on the case of So Wing Keung v Sing Tao Ltd [2005] 2 HKLRD 11 at p.49 H to J.

33.  We must reiterate what had been said in To Pui Kui v Ng Kwok Piu CACV 281 of 2012, 21 Aug 2014, at paragraphs 55 to 59. After the close of hearing, unless the leave of court has been given, no further submissions should be advanced whether by counsel, solicitors or litigants in person, whether in writing or otherwise.  In rare and exceptional circumstances where there is good and cogent reason for drawing the court’s attention to additional matters, the party who wishes to advance further submissions should, as a matter of courtesy and proper practice, approach the other parties first to see whether they agree to the lodging of the further submissions.  Even if there is a consensus between the parties, they must apply for leave from the court before such further submissions are lodged.  It cannot be assumed that the court would necessarily adopt the course suggested by the parties.  Whether the court will entertain a further round of submissions is a matter of discretion.

34.  We therefore directed Mr Bell to explain the course he had taken.  In a letter of 22 March 2016 (wrongly dated as 22 October 2016), Mr Bell apologized for the error of judgment in not seeking leave before advancing the further submissions.  Counsel also indicated that he would not rely on such further submissions except the reference to the case of  Chan Mei Yu Paddy v Secretary for Justice (No 2) [2012] 3 HKLRD 65.  Having considered the same, we gave leave to Mr Wong to lodge submissions in reply in respect of Mr Bell’s reliance on that case.  The merits of these submissions will be considered below in our discussion on the information provision issue.

35.  Notwithstanding Mr Bell’s abandonment of his further submission based on So Wing Keung v Sing Tao Ltd, supra, and as a result we do not have the benefit of submissions of Mr Wong in respect of the same, given the general importance of the issue, we decide we should comment on the possibility of a party served with a search warrant coming back to the court to set aside the warrant.  The relevant authority had actually been cited by Mr Wong in his original list of authorities.

36.  We do not think So Wing Keung v Sing Tao Ltd, supra, ruled out the possibility of going back to the magistrate or the judge granting the warrants to set aside the same.  As explained by the Court of Final Appeal in P v Commissioner of ICAC (2007) 10 HKCFAR 293, So Wing Keung v Sing Tao Ltd was a decision in the context of the special statutory regime under part XII of the Interpretation and General Clauses Ordinance, Cap 1 [“IGCO”] which has an express provision (s.87) enabling a person affected to apply for discharge, see paragraph 42 in the judgment of Li CJ.  In P v Commissioner of ICAC, supra, the Court of Final Appeal held that an application for the discharge of an ex parte order can be made in respect of a notice issued under s.14(1)(d) of the Prevention of Bribery Ordinance, Cap 201.  The jurisdiction in that context was founded upon Order 32 Rule 6 of the Rules of the High Court.  The Court of Final Appeal also acknowledged that by reason of the overriding need to preserve the integrity and effectiveness of criminal investigation, applications for discharge could only be entertained on limited grounds: (a) the legal limits for the grant of warrants; (b) the warrants were obtained by fraud or bad faith on the part of the law enforcement agency applying for the warrants; (c) oppression, see paragraphs 44 to 51.  The court cannot entertain challenges as to whether a case of reasonable suspicion has been established or the likelihood of relevant materials or information being obtained.

37.  Unlike the statutory scheme in the IGCO, there is no express provision for persons affected to apply for the discharge of a warrant issued under the IEO or the OSCO.  Is there anything in the context of these two pieces of legislation and the relevant rules of court to cater for or to negate the possibility of an application to set aside a warrant issued under these statutes?  Though there is an equivalent provision in Order 32 Rule 6 in the Rules of the District Court, there is no such equivalent in the magistrate courts.

38.  In our judgment, the question is not to be answered by looking for rules of the court providing for setting aside an ex parte order.  A more fundamental answer lies in art 35 of the Basic Law and art 10 of the HKBOR.  These provisions protected the right of access to courts and the right to a fair hearing in the determination of a person’s rights in a suit at law.  Ex parte applications are restrictions of these fundamental rights and they are justified only to the extent it is proportionate to the legitimate need for having applications to be made on an ex parte basis.  In the context of an application for warrants under the IEO and OSCO, whilst there is obvious need on the ground of secrecy to preserve the integrity and effectiveness of criminal investigations to justify an application to be made on an ex parte basis, we do not see any justification for excluding the possibility of an application to set aside on the limited grounds as discussed in P v Commissioner of ICAC, supra when there could be sufficient safeguard to secure the relevant materials or documents upon the service of the warrants pending the determination of an application to set aside.  There should not be any difficulties in having such safeguards by way of placing the seized materials in locked premises and prohibiting any use being made of the same pending the determination of the application to set aside, see Apple Daily Ltd v Commissioner of the ICAC [2000] 1 HKLRD 595.

39.  We shall elaborate on the significance of judicial gate-keeping in issuing a warrant in the context of the discussion on constitutionality below.  Given the constitutional significance of such a role, the grant of a warrant by a judicial officer has to be a judicial process.  Subject to the overriding need to preserve the integrity and effectiveness of criminal investigations, it is inherently repugnant to our administration of justice to reach a judicial decision without affording the party affected any reasonable opportunity to contest the same.  Thus, it is implicit in the judicial nature of the warrant issuing process that the matter should be dealt with judicially, including the right to entertain an inter partes application for setting aside an ex parte warrant on the limited grounds.

40.  We hold that the judicial officers issuing the warrants have the power to entertain an inter partes application to set aside the ex parte warrants on the limited grounds discussed in P v Commissioner of ICAC, supra.  Mr Wong did not dispute this as a general proposition.

41.  Thus, up to the time when the warrants were fully executed, the applicants could have applied to the courts for the setting aside of the warrants.  Notwithstanding that the points now taken by them in challenging the various decisions could all be taken as one of the limited grounds in setting aside the warrants, they did not do so.  It was only after the full execution of the warrants and the discovery of the provision of copies of the documents to the Mainland Customs that they launched their first application for judicial review in HCAL 113 of 2012.  As we have observed, the challenge in that application was confined to the decisions of C&E to provide copies of the documents to the Mainland Customs.

42.  By that time, there was no prospect of reversing the process in terms of the decisions of C&E in applying for the warrants and executing the same.  Practically, the only reliefs that the applicants could obtain if they were successful in their challenges were injunctions (to restrain further misuse of documents and to procure the return of the documents) and damages.  Notwithstanding public law issues being involved, these reliefs are also available in an ordinary civil action, see Richard Stone, The Law of Entry, Search and Seizure 5^th Edn paragraphs 3.106 to 3.110.  In view of the delay in the commencement of proceedings and given the dispute of facts involved, it was more appropriate to proceed by an ordinary civil action.

43.  Not surprisingly, after the determination of the issues which are now before us in these appeals, the judge ordered on 12 November 2015 pursuant to Order 53 Rule 9(5) that the assessment of damages in these proceedings should continue as if they had been begun by writ and gave directions for filing of pleadings and the appointment for a Case Management Conference.  Effectively, the judicial review applications have been transformed into a writ action.

44.  In light of that order, it is not necessary for us to consider this question at length.  However, we reiterate that it is not appropriate to challenge by way of judicial review the decisions of the C&E in making applications for warrants.

B. THE CONSTITUTIONALITY ISSUE

B1. General considerations in respect of entry and search

45.  In common law, it had been established since Entick v Carrington (1765) 2 Wils KB 275 that a law enforcement officer does not have any general prerogative power to enter any private property to seize documents as evidence.  Entry to private property by a law enforcement officer has to be supported by specific legal authority: the mere fact that he is a public officer does not give him such authority.  In the absence of such authority, an entry without consent (express or implied) and the seizure of materials will attract tortious liabilities in terms of trespass and conversion.

46.  Apart from the common law powers of a police officer to enter premises without a warrant in connection with arrest and breach of peace (as to that see R v Commissioner of Police for the Metropolis, ex p Rottman [2002] UKHL 20 and R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55), law enforcement officers in Hong Kong mostly derive the lawful authority to enter private premises from statutory powers.  Most of these statutory powers have to be exercised with the support of a warrant issued by a judicial officer.  But there are also provisions conferring such power without the need to go through the process of obtaining a judicial warrant.  Upon our request, in joint efforts, counsel helpfully produced a table setting out the position under a large variety of statutory regimes on entry and search, which we attach to this judgment for reference.  In the present appeals, we are only concerned with the IEO regime. However, as counsel agreed, our judgment in these appeals may have ramifications for other statutory regimes.  Thus, the table could provide a useful starting point for future review.

47.  A brief survey of the statutory regimes in the table shows that the power of entry and search can be exercised in many different contexts.  At the outset of this discussion, it should be recognized that some of these powers are to be exercised in the context of a regulatory setting where routine administrative inspection is essential for the effective operation of the regulatory regime.  A classic description of these regimes can be found in the judgment of La Forest J in Comite Paritaire de l’ Industrie de la Chemis v Potash (1994) 115 DLR (4^th) 702 at 713:

“The underlying purpose of inspection is to ensure that a regulatory statute is being complied with. It is often accompanied by an information aspect designed to promote the interests of those on whose behalf the statute was enacted. The exercise of powers of inspection does not carry with it the stigmas normally associated with criminal investigations and their consequences are less draconian….”

See also La Forest J in Thomson Newspaper Ltd v Canada (1990) 67 DLR (4^th) 161 at p.220.

48.  In this judgment, we are not concerned with this type of administrative power of entry and search or inspection.  Rather, we are concerned with the power of entry and search for the purposes of obtaining information and evidence related to a criminal investigation.  Thus, we have not examined how the proportionality test discussed below should be applied in the former context.  Our discussion below is focused on the power of entry and search in the context of criminal investigation.

49.  In Commissioners of Inland Revenue v Rossminster Ltd [1980] AC 952, before the Human Rights Act was enacted in England, Lord Wilberforce had already remarked that the integrity and privacy of a man’s home, and of his place of business was an important human right.  That was a case about searches by the Inland Revenue on the office and private premises supported by warrants (issued by a circuit judge) under the Taxes Management Act.  Lord Wilberforce further observed that the courts, as guardians of the citizens’ right to privacy, have the duty to supervise critically and jealously the legality of any purported exercise of the statutory powers.  At the same time, His Lordship also said that in so doing, the courts should do so in the context of modern world.  On the facts of that case, the context was that Parliament had enacted a statute authorizing searches and seizures in the fight against tax fraud.

50.  Since then, English law has further developed with the enactment of the Human Rights Act and statutory powers of entry and search have to be examined with the lens of Convention-compliance, particularly in light of article 8 of the European Convention on Human Rights, see for example the discussion in R v Commissioner of Police for the Metropolis, ex p Rottman, supra, paragraphs 34 to 40; 80.

B2. Constitutionally entrenched human rights considerations

51.  It is interesting to note that in that respect Hong Kong had its human rights regime by way of our HKBOR introduced earlier than the Human Rights Act.  Thus, back in 1994, the late Jerome Chan J decided in R v Yu Yem Kin (1994) 4 HKPLR 75 that the statutory power under the then s52 of the Dangerous Drugs Ordinance Cap 134 contravened several provisions in the HKBOR.  One of those provisions was art 14, which is also the focus of the debate in the present appeals.  That article reads:

“ (1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence …

(2) Everyone has the right to the protection of the law against such interference or attacks.”

52.  In addition, Article 29 of the Basic Law is also relevant:

“ The homes and other premises of Hong Kong residents shall be inviolable. Arbitrary or unlawful search of, or intrusion into, a resident’s home or other premises shall be prohibited.”

53.  In the 1^st judgment, McWalters JA held that section 21(1)(a) of the IEO constituted a restriction of these fundamental rights and it must satisfy the proportionality test in order to be constitutionally valid.  Though His Lordship held at §78 of the 1^st judgment that the power conferred by section 21(1)(a) is not arbitrary or unlawful, he concluded that it failed to satisfy the proportionality test in authorizing warrantless search for non-domestic premises.

54.  We shall examine the proportionality test in the specific context of section 21(1)(a) of the IEO later.  At this juncture, we wish to set out our view on the juridical basis for the applicability of the proportionality test for Article 29 of the Basic Law and art 14 of the HKBOR though it was not disputed before us that the test is applicable here.

55.  At §81 of the 1^st judgment, the learned judge held that the proportionality test was applicable by way of an implied justification provision as in HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574 at 593.  With respect, we have difficulty in regarding Lam Kwong Wai as the basis for the application of the proportionality test in the present context.

56.  The observations on implied justification by Sir Anthony Mason NPJ in Lam Kwong Wai were made in respect of Basic Law rights expressed in absolute terms.  That case concerns the right of presumed innocence and right to a fair trial in Article 87(2) of the Basic Law and articles 10 and 11(1) of the HKBOR.  At §21, Sir Anthony Mason NPJ held that notwithstanding the expression of these rights in absolute terms in the Basic Law and the HKBOR, encroachment of the same is permitted if they could be justified by reference to what is now commonly known in this jurisdiction as the proportionality test.  In a nutshell, the proposition upheld by the Court of Final Appeal in that case is that an absolute right is capable of derogation provided that the derogation can satisfy the proportionality test.

57.  In contrast, as we have seen, the right of privacy is not expressed in absolute terms in Article 29 of the Basic Law and art 14 of the HKBOR.  The protection in these provisions is against “arbitrary or unlawful” interference, search and intrusion.  In other words, if the interference, search or intrusion is not arbitrary or unlawful, the rights under these provisions would not be infringed.  There is no need for any implied derogation.

58.  One must therefore concentrate on the meaning of “arbitrary or unlawful” in the context of these provisions.  In HKSAR v Chan Kau Tai [2006] 1 HKLRD 400 at §105, in the context of discussing the right of privacy under the Basic Law, Ma CJHC (as he then was) observed that the terms “arbitrary or unlawful” in the context of the Basic Law were considered by the Court of Final Appeal in Lau Cheong v HKSAR (2002) 5 HKCFAR 415. In the latter case, in the joint judgment of Li CJ and Ribeiro PJ, their Lordships discussed the concept of “arbitrary or unlawful” in the context of art 28 of the Basic Law.  The following propositions can be derived from that discussion:

(a) Something lawful may nonetheless be arbitrary (§42);

(b) Arbitrariness is to be construed broadly to include elements of inappropriateness, injustice and lack of predictability (§43);

(c) The concept of arbitrariness has developed to embrace within it the concept of manifest or gross disproportion in addition to its traditional meaning of “capricious, unreasoned or without reasonable cause”.  A statutory provision can also be challenged as arbitrary if it is manifestly disproportionate (§§ 46, 110 to 112); and

(d) A high threshold must be crossed before a statutory provision can be struck down as arbitrary by reason of it being manifestly disproportionate.

59.  In our judgment, the broad concept of arbitrariness in the context of the Basic Law forms the juridical basis for the applicability of the proportionality test in relation to Article 29 of the Basic Law and art 14 of the HKBOR, provided that the test must be applied cautiously so that only a statutory provision which is manifestly disproportionate would be struck down as arbitrary.

60.  Further, article 14(2) requires the right of privacy conferred under article 14(1) to be protected by law.  In that connection, in Leung Kwok Hung v Chief Executive of the HKSAR HCAL 107 of 2005 Hartmann J (as he then was) had this to say:

“ 111. Concerning the right to freely and privately communicate with others, art.14(1) of the Bill of Rights provides that any interference with that right must not be ‘arbitrary’ or ‘unlawful’. Art.14(2) directs that Hong Kong residents are entitled to the ‘protection of the law against such interference. The constitutional requirements of art.14, therefore, are:

(i) that any interference must be lawful in the sense of being in accordance with protections provided by law, and

(ii) that any interference must be reasonable in the sense of not being arbitrary.

112. The United Nations Human Rights Committee has interpreted the requirement of reasonableness to imply that any interference with the right to private communication must be proportional to the end sought and be necessary in the circumstances of any given case.

113. In its ‘General Comment 16’, the United Nations Committee said that the obligations imposed by art.17 of the ICCPR (art.14 of the Bill of Rights) demand the adoption of legislative and other measures to give effect to the protection of the right. That, it seems to me, must be correct. First, the article states clearly that the right shall be protected by law. As a qualified right, the enshrinement of it in the article is not of itself sufficient to afford effective protection. Second, ascertainable measures enforceable at law must be in place to allow for a proportionate limitation of the right while at the same time providing adequate safeguards to prevent executive abuse.

114. In matters going to fundamental rights, the principle of proportionality is part of Hong Kong law. In this regard, in Leung Kwok Hung & Others (supra), the Court of Final Appeal said that the proportionality test should be formulated in these terms:

(a) the restriction must be rationally connected with one or more of the legitimate purposes; and

(b) the means used to impair the right must be no more than was necessary to accomplish the legitimate purpose in question.”

61.  When that case went to the Court of Appeal in CACV 73 of 2006, Tang VP took a similar view, see §§16, 33 and 34 of his judgment.

62.  Though that case concerns interference by way of covert surveillance, we are of the view that the same can be said in the context of entry and search.  Thus, in addition to being certain and ascertainable, the law must also be proportionate with adequate safeguards against executive abuse.

63.  In Canada, in light of the constitutional protection against unreasonable search or seizure under s8 of the Canadian Charter of Rights and Freedoms, the Supreme Court held in Hunter v Southam Inc (1984) 14 CCC (3d) 97 that there is a rebuttable presumption that warrantless search is unreasonable in the context of s8.  In so holding, Dickson J considered and adopted the approach of the Supreme Court of the United States in Katz v United States (1967) 389 US 347.  In the United States, there is also constitutional protection against unreasonable search and seizure under the Fourth Amendment.

64.  Neither article 14 of the HKBOR nor Article 29 of the Basic Law refers to protection against unreasonable search.  Thus, it would not be right to directly transplant the reasoning in those cases to the present context, see Attorney General v Lee Kwong-kut [1993] AC 951 at 966 and In re Lee Kwok-hung [1993] 2 HKLR 51 at p.56.  However, we respectfully find the following dicta of Dickson J in Hunter v Southam Inc, supra, at p.109 to be enlightening in the application of our proportionality test as discussed above:

“ [The purpose of the constitutional protection under s8] …is to protect individuals from unjustified State intrusions upon their privacy. That purpose requires a means preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place. This, in my view, can only be accomplished by a system of prior authorization, not one of subsequent validation.”

65.  Having said so, Dickson J recognized that there could be exceptions to the requirement of prior authorization:

“ I recognize that it may not be reasonable in every instance to insist on prior authorization in order to validate governmental intrusions upon individuals’ expectations of privacy. Nevertheless, where it is feasible to obtain prior authorization, I would hold that such authorization is a pre-condition for a valid search and seizure.”

66.  We are in broad agreement with this sentiment though in the context of article 14 of the HKBOR and Article 29 of the Basic Law, we would not exclude the possibility of justifications for exception other than infeasibility of obtaining prior authorization in meeting our proportionality test.  But each justification has to be tested against the well established criteria in our proportionality test.

67.  Dickson J further discussed the process of prior authorization at p.110:

“ The purpose of a requirement of prior authorization is to provide an opportunity, before the event, for the conflicting interests of the State and the individual to be assessed, so that the individual’s right to privacy will be breached only where the appropriate standard has been met, and the interests of the State are thus demonstrably superior. For such an authorization procedure to be meaningful it is necessary for the person authorizing the search to be able to assess the evidence as to whether that standard has been met, in an entirely neutral and impartial manner.”

68.  He was further of the view that the person giving the authorization might not need to be a judicial officer:

“ While it may be wise, in view of the sensitivity of the task, to assign the decision whether an authorization should be issued to a judicial officer, I agree … that this is not a necessary pre-condition for safeguarding the right enshrined in s.8. The person performing this function need not be a judge, but he must at a minimum be capable of acting judicially.”

69.  Strasbourg jurisprudence is to the same effect. Amongst the cases cited to us by Mr Bell, Funke v France (1993) 16 EHRR 297 is a case where the European Court of Human Rights held that search by the French customs officers unsupported by judicial warrant had infringed article 8 of the European Convention as such search went beyond what was necessary for the pursuit of the legitimate aim.  On the other hand, in Camenzind v Switzerland (1999) 28 EHRR 458, the court held that a search supported by a warrant issued by an area director of the Post and Telecommunications Authority was article 8 compliant due to the limited scope of the search and other safeguards in place under the relevant statutory scheme.  It is pertinent for our purposes to note that in assessing proportionality, the European Court also placed emphasis on examining whether there were adequate and effective safeguards against abuse, see  Camenzind v Switzerland, supra, at paragraph 45:

“ … The Court will assess … whether the aforementioned proportionality principle has been adhered to. As regards the latter point, the Court must first ensure that the relevant legislation and practice afford individuals ‘adequate and effective safeguards against abuse’; notwithstanding the margin of appreciation which the Court recognizes the Contracting States have in this sphere, it must be particularly vigilant where, as in the present case, the authorities are empowered under national law to order and effect searches without a judicial warrant. If individuals are to be protected from arbitrary interference by the authorities with the rights guaranteed under Article 8, a legal framework and very strict limits on such powers are called for…”

70.  Notwithstanding the difference in the wordings of Article 8 of the European Convention from article 14 of the HKBOR, we are of the view that this is the proper approach to be adopted for considering whether a statutory power of search is consistent with the HKBOR and Article 29 of the Basic Law in light of the Hong Kong jurisprudence discussed earlier.

B3. The judicial gate-keeping role

71.  Before we concentrate on the constitutional challenge against section 21(1)(a) of the IEO (which authorizes warrantless search), we shall first examine the safeguards against executive abuse provided by the requirement of a judicial warrant as prior authorization for searches.  The vetting of an application for a warrant by a judicial officer provides important safeguards against arbitrary interference with the right of privacy guaranteed by article 14 of the HKBOR and Article 29 of the Basic Law.

72.  The significance of having a prior scrutiny of the justification for the interference with the rights of a private citizen (whether in terms of common law rights of property or the human rights of privacy) by an impartial authority has been explained by Dickson J in Hunter v Southam Inc, supra, at p.109.  In the same vein, Stock VP made similar observations in Philip KH Wong v Commissioner of ICAC (No 2) [2009] 5 HKLRD 379 at §§47 to 49.  We respectfully reiterate these observations as a sound reminder of the approach which should be adopted by every law enforcement officer in an application for warrant and every judicial officer in the consideration of such application:

“ 47. The starting principle is the inviolability of private premises from arbitrary intrusion.  The right to security of one’s home and of the place in which one works is a right historically protected by the common law and now widely recognized in constitutional and other human rights instruments.  It is therefore incumbent on every magistrate or judge to whom an application to permit such an intrusion is made to remind himself of the seriousness of the act which he is asked to authorize and not to permit the apparent simplicity of the procedure or the frequency with which it is invoked to devalue its significance.  The duty upon him has been described as “a high duty… to protect individual citizens from arbitrary infringements of their liberties, as well as a responsibility to facilitate the conviction of the guilty in the interests of the whole of society.”

48. The fulfilment of this duty means that the task must be approached judicially; in other words, the judicial officer must apply his mind to the individual circumstances of the case and exercise his own judgment.  He must act within the boundaries of his powers as prescribed by the statute pursuant to which the application is made and, if an intrusion is, within those boundaries, justified by the facts ascertained by him, he should ensure that the intrusion authorized goes no further than is reasonably necessary for the permissible objective and that the parameters of the authorization are sufficiently clear on the face of the warrant, so that the person executing the warrant and the person upon whom it is served knows what is and what is not permitted.

49. Where it is intended to search premises of a solicitor’s firm or of counsel’s chambers or where otherwise there is cause for a particular belief that the material sought is likely to include privileged information, that fact must be disclosed by the applicant to the magistrate.  That is because there is a duty to disclose any fact that is material to the exercise of the power to issue a warrant, and the importance of legal professional privilege is such that the likely presence of privileged material in the place to be searched is self-evidently a material fact.  …”

See also §94 of the judgment of Stock VP.

73.  These observations highlight the importance of careful scrutiny of an application by a judicial officer, the need to approach the application judicially with an independent mind balancing the conflicting interests and the duty on the part of an applicant to place all material information before the judicial officer.  In respect of the latter, we wish to add that the duty is not confined to the likelihood of the information sought being privileged.  As the facts of the present case illustrated, information such as the anticipated time frame for the execution of the warrant and the possibility of disseminating the information obtained to some other law enforcement agencies or persons outside the jurisdiction are also material.  As decided by the Court of Appeal in Philip KH Wong v Commissioner of ICAC (No 2), supra, a judicial officer has implied power to impose conditions when he issues a warrant.  Such information is relevant for considering whether any special conditions should be imposed in the warrant.

74.  The importance of the judicial gate-keeping role in the context of search warrant was highlighted by Lord Hoffmann in AG of Jamaica v Williams [1998] AC 351 at 358F to G, Chan CJHC (as he then was) in Apple Daily Ltd v Commissioner of the ICAC [2000] 1 HKLRD 595 at p.600A-B and Li CJ in P v Commissioner of ICAC (2007) 10 HKCFAR 293 at p.300J to 301B.  In AG of Jamaica v Williams, supra, Lord Hoffmann said:

“ The purpose of the requirement that a warrant be issued by a justice is to interpose the protection of a judicial decision between the citizen and the power of the state. If the legislature has decided in the public interest that in particular circumstances it is right to authorise a policeman or other executive officer of the state to enter upon a person’s premises, search his belongings and seize his goods, the function of the justice is to satisfy himself that the prescribed circumstances exist. This is a duty of high constitutional importance. The law relies upon the independent scrutiny of the judiciary to protect the citizen against the excesses which would inevitably flow from allowing an executive officer to decide for himself whether the conditions under which he is permitted to enter upon private property have been met.”

75.  As mentioned earlier, we appreciate there could be justifications for not subjecting a search to the requirement of prior judicial authorization.  However, in the overall assessment of proportionality, the court must examine whether the justification is cogent enough and whether other safeguards are in place to protect a citizen from abuse or excess of executive action in the name of investigation.  An obvious case for exception is a situation where it would not be reasonably practicable to obtain a warrant in light of the risk of destruction or loss of the relevant evidence or materials.  However, section 21(1)(a) of the IEO permits warrantless search regardless of the practicality in obtaining a warrant.  We should therefore examine whether there is other justification to support the proportionality of such a wide power.

B4. Proportionality of section 21(1)(a) of the IEO

76.  Section 21(1)(a) of the IEO reads as follows:

“ (1) Subject to section 22, any member of the Customs and Excise Service and any authorized officer may, if he reasonably suspects that there is, in or on any premises or place, vessel, aircraft or vehicle, any article in respect of which an offence has been committed under this Ordinance or which is, or contains, evidence of the commission of such offence-

(a) enter and search any such premises or place …”

77.  Subject to section 22, the power of entry and search can be exercised without any need to apply to a judicial officer or other independent authority for a warrant.  It can be exercised by any member of the Customs and Excise Service (which is defined as officers specified in Schedule 1 to the Customs and Excise Service Ordinance Cap 342, which includes all officers in the Service) or any authorized officer (meaning officers authorized by the Commissioner under section 4 of the IEO).  The prerequisite is that such member or authorized person reasonably suspects that there is any article in respect of which an offence has been committed under the IEO or which is, or contains, evidence of the commission of such offence.

78.  Section 21(1)(a) is subject to section 22.  Section 22 provides:

“ (1) No domestic premises shall be entered and searched by a member of the Customs and Excise Service or an authorized officer unless-

(a) a magistrate has issued a warrant under subsection (2); or

(b) a member of the Customs and Excise Service of or above the rank of Assistant Superintendent has given an authorization under subsection (3). (Amended 46 of 1977 s. 17; L.N. 294 of 1982)

(2) A magistrate may, if he is satisfied by information on oath that there is reasonable ground for suspecting that there is in any domestic premises anything which may be seized under section 21, issue a warrant authorizing a member of the Customs and Excise Service or an authorized officer to enter and search the premises.

(3) A member of the Customs and Excise Service of or above the rank of Assistant Superintendent may, if he reasonably suspects- (Amended 46 of 1977 s. 17; L.N. 294 of 1982)

(a) that there is in any domestic premises anything which may be seized under section 21; and

(b) that unless the premises are entered and searched immediately such thing is likely to be removed from the premises,

authorize in writing a member of the Customs and Excise Service or an authorized officer to enter and search the premises.

…”

79.  The net effect is that for domestic premises, except in cases coming within section 22(3)(b), the power of entry and search has to be authorized by a warrant issued by a magistrate.  For cases coming within section 22(3)(b), the entry and search can be authorized by an officer above the rank of Assistant Superintendent.

80.  However, there is no need for any authorization in respect of the exercise of the power of entry and search for non-domestic premises.

81.  Though the IEO deals with offences like smuggling and import and export of unmanifested cargoes, it also covers a wide range of other offences.  The scope of section 21(1)(a) can likewise be very wide.  It should be noted that the power in this subsection is clearly exercisable in respect of investigation of criminal offences as opposed to the power under section 20(1)(a) which is exercisable for routine random administrative inspection in the context of the statutory scheme for a licence or validated production notification.  As mentioned above, we are not concerned with the latter in the present appeals.

82.  We understand the constitutional challenge against section 21(1)(a) was only advanced at a very late stage in the supplemental closing submissions of the Keen Lloyd group of 29 November 2013.  Thus, Assistant Superintendent Lai had to address the challenge in his 6^th Affirmation of 16 January 2014.  In that affirmation, the justification for having a warrantless power of search and entry was put on the basis that the delay caused by an application for a warrant from a magistrate might seriously affect the operation of the C&E occasioning significant risk of loss of crucial or important evidence.  Mr Lai also stressed that time was of the essence in investigations by the C&E as very often immediate follow-up action had to be taken and it would be impracticable to apply for a search warrant before doing so.

83.  The judge had taken such concerns on board and he discussed them at §§103 to 107 of the 1^st judgment.  As he correctly observed, the evidence of Mr Lai does not reveal a need for a warrantless search power of non-domestic premises other than when it is not practicable to go before a magistrate.

84.  Ironically, in the present case, the C&E officers had actually applied to a magistrate for warrants in respect of non-domestic premises.  Such action, as the judge observed, gainsays the need for an unconstrained warrantless power of search.

85.  The judge referred to the amendments of Section 52 of the Dangerous Drugs Ordinance and section 17 of the Prevention of Bribery Ordinance Cap 201 to demonstrate that the Government recognized the importance of having judicial safeguard overseeing the exercise of the power of entry and search.  Relying on the Canadian decision in R v Rao (1984) 9 DLR (4^th) 542, the judge further took the view that the distinction between domestic and non-domestic premises could not justify a warrantless entry and search for the latter.  He therefore concluded that the section 21(1)(a) is not a proportionate response to the problem it seeks to address and is inconsistent with Article 29 of the Basic Law.

86.  Before us, Mr Wong submitted that different expectations of privacy for domestic and non-domestic premises created different thresholds in applying the proportionality test.  Further, as there is a higher likelihood of non-domestic premises housing a relevant article or evidence in respect of IEO offences, there is a higher degree of necessity for law enforcement action taken in respect of such premises.  The striking of a balance is primarily a matter for the legislature and the court recognized that there could be a range of reasonable options even in cases involving fundamental rights or core values.  As the Government has more expertise and experience in assessing the flexibility required in conferring the investigatory power to the C&E to combat smuggling offences and the legislature had made a judgment on the question, this is not a case where the court should intervene.

87.  Mr Wong also submitted that the judge erred in placing reliance on HKSAR v Chan Kau Tai [2006] 1 HKLRD 400 and R v Rao (1984) 9 DLR (4^th) 542 in coming to the conclusion that the difference in expectations for privacy between domestic and non-domestic premises was immaterial in assessing proportionality.  Counsel also referred us to the decision of the British Columbia Court of Appeal in R v Hamill (1984) 13 DLR (4^th) 275 at p.280 to 286 in which that court refused to follow R v Rao, supra.

88.  However, in the further appeal to the Supreme Court of Canada R v Hamill [1987] 1 RCS 301, the government did not advance submissions to uphold the validity of search without warrant, see p.307 of the judgment.

89.  With respect, we do not find the criticism of Mr Wong of the judge’s application of the proportionality test to be well founded.  The judge did allude to the distinction between domestic and non-domestic private premises and discussed at length how such a distinction should impact on the protection of privacy interests as opposed to property interests, see §§95 to 102 of the 1^st judgment.  He was mindful that likelihood of intrusion of privacy is greater in domestic premises as compared with the workplace, see §102.  However, as the judge correctly pointed out, the questions remain (1) whether there is a reasonable expectation of privacy in the workplace; and (2) whether it is proportionate to permit an intrusion of such privacy by a warrantless search.  The judge, relying on HKSAR v Chan Kau Tai, supra, answered the first question in the affirmative and we do not understand Mr Wong to be challenging that answer.

90.  The crucial issue in this part of the appeal is the answer to the second question.  To recap, the proportionality test requires the court to consider if the means used to impair the right is no more than was necessary to accomplish the legitimate purpose in question.  The legitimate purpose (which is not disputed by counsel, as identified by the judge at §82 of the 1^st judgment) is to provide for the effective investigation of IEO offences.  As discussed above, in assessing whether the statutory power is no more than was necessary to achieve the legitimate purpose, the court has to consider the need to protect against executive abuse.  Though sometimes such need could be outweighed by cogent justification for having a warrantless power of search as in the cases where there is a serious risk of destruction or loss of the relevant evidence or materials occasioned by the need to obtain a warrant, we have to ask what is the justification for overriding such protection when this is not the case.

91.  It seems to us that the judge had asked this precise question at §§102 to 112 of the 1^st judgment and his conclusion was that no other tenable justification had been put forward.  We respectfully agree with the judge in this regard.  Apart from cases where it would not be practicable to obtain a warrant from a magistrate before a search is conducted, we cannot see any valid justification in the content of section 21 for side-stepping the requirement of a judicial warrant or similar form of impartial protection against executive excesses.  We agree with the judge that the difference in the expectation for privacy in domestic premises and non-domestic premises cannot be a valid justification.  Nor do we accept the greater likelihood of relevant articles or evidence being found at non-domestic premises (assuming that to be so, though we have some doubts on such assumption) to be a valid justification for watering down the protection by way of judicial gate-keeping.  In short, though the context is not exactly the same, we share the view of the late Jerome Chan J in R v Yu Yem Kin, supra, that a blanket warrantless power of search is more than is necessary to achieve such legitimate purpose.  As it stands, section 21(1)(a) is, in our judgment, manifestly disproportionate.

92.  In light of this conclusion, we do not accept that the court should regard the warrantless power of search as falling within the range of reasonable options and thus refrain from interfering with the legislative discretion of the legislature.

93.  We uphold the judge’s conclusion on the constitutionality of Section 21(1)(a).

C. THE REMEDIAL INTERPRETATION ISSUE

94.  In HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574 at §§67 to 79, Sir Anthony Mason NPJ explained that in the context of the Basic Law, the concept of judicial power necessarily includes the making of remedial interpretations similar to those employed by courts of other jurisdictions as in Ghaidan v Godin-Mendoza [2004] 2 AC 557, R v Lambert [2002] 2 AC 545 and Sheldrake v DPP [2005] 1 AC 264.  At §§77 and 78, His Lordship made these important observations,

“… The justification for now engaging in remedial interpretation is that it enables the courts, in appropriate cases, to uphold the validity of legislation, albeit in an altered form, rather than strike it down. To this extent, the courts interfere less with the exercise of legislative power than they would if they could not engage in remedial interpretation. … Indeed, it can be safely assumed that the legislature intends its legislative provision to have a valid, even if reduced, operation than to have no operation at all, so long as the valid operation is not fundamentally or essentially different from what it enacted.”

“…It follows that the implied powers of this Court include the obligation to adopt a remedial interpretation of a legislative provision which will, so far as it is possible, make it Basic Law-consistent. Only in the event that such an interpretation is not possible, will the Court proceed to make a declaration of contravention, entailing unconstitutionality and invalidity.”

95.  We agree with the submission of Mr Wong that the court should consider whether the legislative provision in question can become Basic Law compliant by remedial interpretation before holding that it is constitutionally invalid.

96.  Though Ghaidan v Godin-Mendoza, supra, and Sheldrake v DPP, supra, were decisions in the context of the Human Rights Act 1998 [“HRA”] and there is no equivalent of s 3 of that Act in our Basic Law, we hold that the criteria discussed in those cases for adopting remedial interpretation are equally applicable in Hong Kong.  The legal basis for our courts to grant remedial interpretation had been explained in HKSAR v Lam Kwong Wai, supra. Given that the relevant criteria were developed in the English jurisprudence by way of case law and the purpose served by the remedy is the same in England as in Hong Kong, we do not accept Mr Bell’s submission that these authorities could not provide guidance on how the remedy should be applied.

97.  For present purposes, the following propositions derived from Ghaidan v Godin-Mendoza, supra are germane,

(a) Subject to the limitations in (c) and (d) below, the court can exercise the power of remedial interpretation to depart from the unambiguous meaning of the legislative provision in order to give a Basic Law compliant effect to the same;

(b) In adopting a remedial interpretation, the court can interpret language in a statutory provision restrictively or expansively.  It can also read in words which change the meaning of the provision;

(c) However, the court cannot adopt a meaning inconsistent with a fundamental feature of the legislative scheme or its essential principles.  Whether an element in the statutory provision constitutes a fundamental feature or essential principle must be determined with regard to its place in the overall scheme of the legislation;

(d) Remedial interpretation does not empower the courts to make decisions for which they are not equipped such as choosing between various options which requires legislative deliberation or adopting a meaning which has important practical repercussions which the court is in no position to evaluate.

98.  In the 2^nd judgment, McWalter JA held that the court could not resort to remedial interpretation to give constitutional validity to section 21(1)(a) of the IEO.  The learned judge was of the view that the scheme of the IEO provides for distinct powers of search, warrant based power for domestic premises and warrantless power for non-domestic premises.  To alter that by way of remedial interpretation, the judge held at §41 of the 2^nd judgment, involves a significant departure from a fundamental feature of the IEO entry and search regime which can lead to repercussions that the court cannot fully anticipate. He therefore declined to do so.

99.  It is perhaps unfortunate that the proposed remedial interpretation put forward by the respondents includes a new section 22(1)(c) to provide for a warrantless search power when it is not reasonably practicable to obtain a warrant or an authorization from an officer above the rank of Assistant Superintendent.  This addition gave rise to the judge’s legitimate objection at §§34 and 35 of the 2^nd judgment that the new power is inconsistent with the solution already in place at section 22(3).

100.  But this objection should not prevent the court from considering other remedial interpretations without such additional new power.  After all, as discussed above, the court itself has a duty to consider whether there is any viable remedial interpretation though it should hear submissions from the parties on the wordings of any proposed remedial interpretation.  At the hearing before us, though Mr Wong initially put forward a version of remedial interpretation which includes the additional section 22(1)(c), counsel very sensibly accepted that it is possible to have a remedial interpretation without such additional new power.

101.  In the course of submission, we have put forward a proposed interpretation which involves expanding the expression “domestic premises” in section 22 to mean “premises or place”.  In other words, for the purpose of section 21, the section 22 regime would apply across the board to all premises and places, irrespective of whether they are domestic or non-domestic in nature.

102.  The crucial question is whether a proposed remedial interpretation has gone beyond the limits set out in para 97 (c) and (d) above.  In the 2^nd judgment, McWalter JA considered that the alignment of the search regime for non-domestic premises with the search regime for domestic premises in the IEO would bring about significant departure from a fundamental feature of the legislation in light of his anticipated impact on the operation in other respects of the search regime which he discussed at §§37 to 40 of the 2^nd judgment.

103.  With great respect, we cannot agree with the learned judge in respect of his conclusion that the distinction between domestic and non-domestic premises is a fundamental feature of the IEO.

104.  At §28 of the 2^nd judgment, the judge regarded the IEO as containing 4 different entry and search powers.  We respectfully disagree.  We shall put aside the power under section 20(1)(a) which is a power of search of premises for routine administrative inspection purposes.  For reasons already canvassed above, we are not concerned with that sort of power in this judgment.  On a proper construction of sections 21 and 22 of the IEO, we agree with Mr Wong that the two sections should be read together.  This is clear from the opening phrase “subject to section 22” at Section 21(1) and (3).

105.  As far as the power of search predicated upon reasonable suspicion of commission of an offence or the premises containing evidence of commission of an offence is concerned, we think it should be viewed as one single power of search instead of splitting it into 2 different powers: one for domestic and another one for non-domestic premises.

106.  The exercise of that power of search is subject to Section 22.  Section 21 does not spell out whether the search could be conducted without any warrant.  The answer is to be found in Section 22.

107.  The same analysis is applicable to the power of search under Section 21(3).  Although reasonable suspicion of commission of an offence is not a prerequisite under this sub-section, it goes beyond the routine administrative inspection power under Section 20(1)(a) as it refers to “premises or place connected with the manufacture, processing, production, storage, distribution or sale of any article in respect of which a licence or validated production notification has been issued”.  It is more akin to an investigatory power which could be exercised in respect of premises or places other than those registered or occupied by a licensee or a person who has applied for a validated production notification.  As such, similar considerations for the application of the proportionality test as those applied in the context of section 21(1) are applicable.

108.  Coming back to domestic and non-domestic premises, once the commonality of the relevant considerations relevant in the application of the proportionality test is appreciated (as per our discussion above on proportionality), there is no particular reason why one should regard this distinction as fundamental.  Admittedly, such distinction is drawn in the legislation as it stands.  But we do not think it is a fundamental feature in the overall scheme of the IEO.  The main purpose of Part V of the IEO (which includes Sections 21 and 22) is to provide for the powers of investigation of the C&E in furtherance of the objectives of the IEO.  In respect of the power of entry and search in Sections 21 and 22, the legislative scheme is to confer such power on the C&E in respect of private places and premises, both domestic and non-domestic.  At the same time, the legislature also saw the need to confer some protection against the abuse of such power, and the protection is to require a judicial warrant to be obtained in some cases.  We do not regard the extension of similar protection to non-domestic premises or places will produce an essentially different scheme altogether.

109.  Given the lack of justification for limiting such protection to domestic premises (as discussed above), such extension is the obvious and natural way to adjust the balance.  We do not discern anything in the overall scheme of the IEO or the context of its actual operation to indicate that the limitation of the protection to domestic premises is an immutable and fundamental feature in the power of search and entry conferred by the IEO.

110.  The learned judge was concerned that such an adjustment would have unforeseen impacts in the operation of the power of search.  He expressed his concerns at §§37 to 39 of the 2^nd judgment.  With respect, we are not persuaded that those concerns undermine our conclusion above.  We have already explained why a similar extension of protection to non-domestic premises in respect of Section 21(3) should not be a problem.  As regards the power to require production of information under section 21(2)(c), we agree with Mr Wong that such a power would only be exercisable after entry and there is no reason why the rationale for extending protection of Section 22 to non-domestic premises should not consequentially be extended in respect of this power.  As regards the last concern in respect of the phrase premises or place, the judge also acknowledged at §40 of the 2^nd judgment that it could easily be resolved.

111.  We therefore conclude that the remedial interpretation proposed by us as set out above does not infringe the principle in sub-para (c) of para 97 above.  Given the minimal adjustment we proposed (which is entirely consistent with the rest of the statutory scheme) and that the mode of protection against abuse in section 22 was actually a mode chosen by the legislature, we do not think it can be suggested that we are infringing the principle in sub-para (d).

112.  In this respect, our conclusion is reinforced by the decision of the Supreme Court in Canada in R v Grant [1993] 3 RCS 223 at p.243-5.  The extent of reading down in that case is actually wider than what we have proposed in the present appeal.

113.  For these reasons, we are of the view that it is appropriate to adopt a remedial interpretation of Section 21 in the manner we propose and we allow the appeal in CACV 107 of 2015 accordingly.

114.  In consequence, as the C&E officers had applied for warrants under the IEO for the search of the non-domestic premises, we would set aside declarations (1) and (4) granted by the judge on 23 December 2014.

D. THE TIME LIMIT ISSUE

115.  The judge declared that search warrants numbered 1, 2, 5, 8, 10, 11, 12, 13, 14 and 16, which were issued under either OSCO[5] or IEC[6], had lapsed.  The judge would also have made the same declaration in respect of warrants 3, 4 and 9, which were all issued under IEO, if they had been validly issued[7].  In short his reason for so doing was that both section 5 of OSCO and section 22 of IEO being silent on the duration of the warrants, as were the warrants themselves, the warrants were to be read as containing an implied qualification that they would lapse after a reasonable period.  His reasons are explained in para 37 to 69 of the 1^st judgment.

116.  In excess of 60 ordinances provide for either warrantless search or issue by a judicial officer of a warrant authorizing search, and commonly seizure of articles, that it is reasonably suspected evidence the commission of an offence under the relevant ordinance.  A common feature of all these ordinances is that they do not contain provisions requiring that a warrant specifies the time within which it must be executed and the consequences of failure to execute it within the specified time period.  For the reasons explained by Stock VP in Philip KH Wongv Commissioner of ICAC (No 2)[8] to 399, in our view it is open to a judicial officer issuing a warrant to include in the warrant terms, which he is satisfied are reasonably required to ensure that it is executed in a lawful and fair manner.  This is a matter to which we shall return after considering the correctness of the judge’s decision.

117.  As the judge observes in para 39 of the 1^st judgment, the argument advanced by the applicants before him, and which he accepted, is a simple one.  A search warrant should not be issued unless the judicial officer is satisfied that an offence has been committed and that evidence of the offence might be found on the premises to be searched.  This is apparent from the sub‑sections of the 2 Ordinances, which are relevant to the present issue:

Section 22(2) IEO:

“ A magistrate may, if he is satisfied by information on oath that there is reasonable ground for suspecting that there is in any domestic premises any thing which may be seized under section 21, issue a warrant authorizing a member of the Customs and Excise Service or any authorized officer to enter and search the premises.”

Section 5(2)(c) and (d), (4)(a) to (c) OSCO:

“(2) On such application the court may issue a warrant authorizing an authorized officer to enter and search the premises if it is satisfied-

…

(c) that the conditions in subsection (3)(a), (c) and (d) or subsection (3)(b), (c) and (d) are fulfilled; or

(d) that the conditions in subsection (4)(a), (c) and (d) or subsection (4)(b), (c) and (d) are fulfilled.

…

(4) The conditions referred to in subsection (2)(d) are-

(a) where the investigation is into an organized crime, that there are reasonable grounds for suspecting that the organized crime has been committed;

(b) where the investigation is into the proceeds of organized crime or a specified offence of a person-

(i) that the person has committed an organized crime or that specified offence, or that there are reasonable grounds for suspecting that he has committed an organized crime or that specified offence; and

(ii) that there are reasonable grounds for suspecting that the person has benefited from organized crime or that specified offence;

(c) that there are reasonable grounds for suspecting that there is on the premises material which is likely to be relevant to the investigation for the purpose of which the application is made, but that the material cannot at the time of the application be particularized;

…”

118.  In order for a judicial officer to be satisfied of these matters there must be placed before him evidence for believing that an offence has been committed and that evidence of the offence’s commission may be found on the premises to be searched.  The judge talks in terms of the judicial officer having to harbor the necessary state of mind after reading the evidence put before him by the law enforcement officer, which necessarily means that his state of mind is based on the knowledge of the law enforcement officer as communicated to him through the evidence.  As the judge observes it is likely that at the covert stage of any on‑going criminal investigation that the knowledge of the law enforcement officer is constantly developing and changing.  It follows that unless a warrant is executed shortly after it is issued the knowledge of the law enforcement officer will have changed and it may have changed in a way that the judicial officer would consider relevant to his determination of whether or not the criteria for granting a warrant has been satisfied by the time the warrant is executed.  The judge found that whether or not this is the case is a matter that should be determined by the judicial officer.  It is not a matter that should be determined by the law enforcement officer, which it necessarily would be if, following a delay, the law enforcement officer could determine whether or not it was not necessary to go back before the judicial officer in order for him to determine whether or not the delay affected his original decision.

119.  The judge accepted as uncontroversial, as we do, the appellant’s submission that at an operational level the way in which a warrant is to be executed is a matter for the executing law enforcement agency[9]. However, he concluded, also in our view correctly, that this did not conflict with a warrant being construed as having to be executed within a reasonable period.  The difference lies in the distinction between matters concerning the process by which the warrant is executed, such as time of day and resourcing, and those matters which go to jurisdiction and satisfaction of statutory pre‑conditions for granting a warrant.  The judge referred to the decision of Lord Hoffmann in Attorney General of Jamaica v Williams[10], to which we have referred earlier, and his Lordship’s warning of the risks of allowing law enforcement agencies to decide whether or not the requisite conditions had been satisfied.

120.  The fact that ordinances creating a right to search private premises normally require the law enforcement agency to seek a warrant itself indicates recognition on the part of the legislature that this intrusion into the citizen’s right of privacy requires supervision by the judiciary in order to ensure that it is not abused or used cavalierly[11].

121.  It follows that it is for judicial officer charged with determining whether or not a warrant should be issued to decide whether a change in the matters relevant to the grant of a warrant has occurred, which might justify revocation of a warrant or the imposition of terms on its continuation.  In our view once a warrant has remained unexecuted for longer than the judicial officer who granted it would reasonably have anticipated, it is consistent with the requirement that the judiciary closely supervise the jurisdiction to grant warrants that the agency which has obtained the warrant return to the judicial officer who granted it and satisfies him that nothing has occurred, which would justify its revocation.  It follows that if a warrant remains unexecuted for longer than the period within which the judicial officer is likely to have anticipated it would be executed it lapses unless it is extended by the judicial officer.

122.  In reaching his conclusion the judge relied on the decision of Higgins J in the Supreme Court of the Australian Capital Territories in Applebee (1995) 79 A Crim R 554 in which he considered the lawfulness of a search warrant executed one month after it had been issued.  The warrant contained no time limit.  No information had been provided to the justice before whom the warrant was sought concerning its duration.  The Crown accepted during argument that some time limit must be implied.  Higgins J concluded at page 557:

“ Not all premises which are to be searched are occupied by persons who are suspected to be offenders. As Coco[12] makes clear, the power to enter premises for law enforcement purposes must be confined to that which is authorized by law. In Coco, a power conferred by a warrant issued pursuant to a statutory provision to enter premises to install listening devices was held not to include a power to authorize an entry which otherwise would be a trespass. If s 10 of the Crimes Act authorizes what otherwise would be a trespassory entry, and all previous authority has at least tacitly accepted that, the warrant must clearly define the scope of the authority it confers and must not be exceeded.

That is also true of the duration of the authority. It would be intolerable for an authority to enter premises to search to be unlimited in time. A justice would normally assume that a warrant to search for stolen goods would be executed as promptly as was practicable and reasonable. If that was not possible or not desired, the warrant, if issued, should be revoked or surrendered. It may, in some circumstances, be appropriate for an issuing justice to grant an extended time for execution of a warrant. A warrant to search for evidence is, however, different in kind from a warrant to intercept telecommunications or other communications. In the latter case, interception over a period of time may be necessary to render the information obtained useful and relevantly intelligible.

In those cases, an extended time for an authority to be extant would be expected.  Where it is proposed to search for and, if found, to seize evidence relating to an offence, urgency would be assumed.  The warrant is this case was not promptly executed.  It was not executed within a reasonable time.  In my view, once there had been a failure to execute the warrant within a reasonable time, it ceased to authorize the entry which in fact was made.  It follows that the search and seizure which occurred on 5 August 1993 was unlawful.”

123.  The C&E accept that a warrant does not have an indefinite life.  Whether or not, they argue, any delay in its execution is unconstitutional will turn on the facts of the particular case.  If nothing has changed then the fact that a warrant has remained unexecuted for, say, two months does not, and should not, automatically render its subsequent execution unlawful.  They argue that Applebee illustrates this, is not an authority on statutory construction and does not justify imposing an arbitrary time period after which a warrant lapses.  However, if a warrant does not last indefinitely it follows that a point in time must arise at which a decision has to be made as to whether or not there has been a change in circumstances, which justify a reconsideration of its grant.  The C&E’s argument necessarily involves the law enforcement agency to whom the warrant was granted making the decision in the first instance whether or not to return to the judicial officer who granted the warrant and to explain the delay to him and why the warrant should be continued.  Once one accepts, as we do for the reasons explained earlier, that it is for the judiciary to determine all issues concerning grant of a warrant it follows that the C&E’s argument is flawed because it necessarily infringes this principle.

124.  The C&E also argue that treating all warrants as impliedly containing a term that they expire if not executed within a reasonable period would be to impose an arbitrary time restriction that the legislature has not seen fit to include in any of the over 60 ordinances dealing with warrants.  The absence of such a provision suggests that the legislature recognised the undesirability of imposing imprecise and arbitrary periods for the execution of warrants.

125.  What constitutes a reasonable time period is fact sensitive and may be difficult to assess, which the judge acknowledged himself in para 59 of the 1^st judgment:

“ What is reasonable will inevitably be a fact specific question and no absolute figure can be laid down without descending into arbitrariness. In some case it may be hours rather than days, in other cases it will be days rather than weeks and yet other, weeks rather months. In most cases it will be days to weeks, perhaps one to 2 weeks”

126.  We do not consider that this of itself is a forceful objection.  In the vast majority of cases one would expect warrants to be executed immediately or very shortly after their grant.  There is nothing before us to suggest that any law enforcement agency is in the habit of obtaining warrants and not executing them promptly.  To the extent that a warrant is obtained and remains unexecuted for longer than was originally envisaged there would be no difficulty in returning to the judicial officer who granted it and seeking its extension.  In practice one would expect warrants in the future to specify their duration, which would overcome this objection.  The fact that there is no reference to the imposition of time periods on warrants in the various ordinances that provide the power to issue them, tends to suggest that the legislature was not focusing its mind on the issue, probably because it was assumed quite reasonably that warrants are executed immediately or very promptly, rather than as a result of a conscious decision not to impose on law enforcement agencies an obligation to execute warrants within a particular time frame.

127.  In our view the judge’s decision and reasoning on this issue was correct with the result that warrants 1, 2, 5, 8, 10 , 11, 12, 13, 14 and 16 had lapsed by the time they were executed.  In the light of our decision we would expect in future warrants to specify their duration after which they will automatically lapse unless the warrant has been extended.  We would expect the judicial officer before whom any application for the grant of a warrant is made to be told when it is anticipated the warrant will be executed and for the warrant’s duration to be shortly beyond that time period.

E. THE WARRANTS APPLICATION ISSUE

E1. The arguments on appeal

128.  This is the cross-appeal of the applicants against the judge’s finding at §158 that they have not succeeded in showing there was impropriety in the decision of C&E to apply for the 16 search warrants. The judge reached this conclusion at §157:

“ It is my view that the fact that there is a joint investigation, even when combined with the fact that subsequently seizures of materials were handed over to Mainland Customs, does not allow of the inference that the warrants were obtained only or primarily for or for the dominant purpose of assisting the PRC side of the investigation. Even if officers contemplated, at the time they applied for the warrants, the possibility that, in accordance with the provisions of the CCA, they would provide where relevant, copies of seizures effected under the warrants to their Mainland counterparts, I do not regard that fact on its own as rendering unlawful or improper their applications for the warrants.”

129.  Mr Bell’s main argument on appeal was that in so concluding, the judge had applied the wrong legal test.  He submitted before us, as he had before the judge, all that was required was to show that the impermissible purpose of facilitating the investigation of the Mainland Customs had exerted a substantial influence on the decision to apply for the search warrants, it was not necessary to show that the decision was for the primary or dominant purpose of assisting the Mainland Customs.  Particular reliance was placed on the dicta in these cases:

“ It seems to me Megaw J[13] is there saying, having been apprised of the argument about dominant purpose, that the exercise of a power is bad if it is shown that an authority exercising that power has taken an irrelevant factor into account, one of many factors, as long as that irrelevant factor is not insignificant or substantial. To that extent, it seems to me, that the case wholly supports the formulation in Professor de Smith’s book[14]: ‘If the influence of irrelevant factors is established, it does not appear to be necessary to prove that they were the sole or even the dominant influence; it seems to be enough to prove that their influence was substantial.’ ” (R v Rochdale Metropolitan Borough Council, ex p Cromer Ring Mill Ltd [1982] 3 All E R 761 at 770a to b, per Forbes J) (Emphasis supplied)

“ But where the two reasons or purposes cannot be disentangled and one of them is bad, or where, even though the reasons or purposes can be disentangled, the bad reason or purpose demonstrably exerted a substantial influence on the relevant decision the court can interfere to quash the decision. This proposition is recognised in the authorities referred by May LJ in the Broadcasting Complaints case and by that decision itself.” (R v Lewisham London Borough Council, ex p Shell UK Ltd [1988] 1 All E R 938 at 951j to 952a, per Neill LJ) (Emphasis supplied)

130.  The relevant passage of May LJ in R v Broadcasting Complaints Commission, ex pOwen [1985] QB 1153 at 1177 referred to above read as follows:

“ Where the reasons given by a statutory body for taking or not taking a particular course of action are not mixed and can clearly be disentangled, but where the court is quite satisfied that even though one reason may be bad in law, nevertheless the statutory body would have reached precisely the same decision on the other valid reasons, then this court will not interfere by way of judicial review. In such a case, looked at realistically and with justice, such a decision of such a body ought not to be disturbed.”

131.  Mr Bell also cited Capital Rich Development Ltd v Town Planning Board [2007] 2 HKLRD 155 at §§70 to 77 in which the Court of Appeal referred to the above cases and adopted the same test of substantial or material influence in a decision in respect of an impermissible financial consideration that the Town Planning Board had taken into account and which could not be regarded as distinct and separate from proper planning considerations.

132.  The judge did not apply the test of impermissible considerations having a substantial or material influence on the decision to apply for the search warrants.  He applied the test whether the permitted purpose was the primary or dominant purpose, having been referred by C&E to R v Commissioner of Police & Anr, ex p Pearce [2013] EWCA Civ 866, a search warrant case, in which reference was made at §25 to R v Southwark Crown Court, ex p Bowles [1998] AC 641 and the dominant purpose test was affirmed by Lord Hutton at 651B to F.

133.  The judge applied the same dominant purpose test at §180 when he came to consider the decision of C&E to provide copies of some of the seized materials to the Mainland Customs, but reached a different conclusion on the facts he found.  Mr Bell did not take any issue that the judge had applied the wrong legal test as regards the information provision issue, in which the ruling was in his favour.

E2. The proper legal test

134.  Of the authorities cited to us, we think the clearest exposition of the legal test to be applied where there is a plurality of purposes for an exercise of power is Re Kelly and Shiels [2001] NI 103 at 113h to 117d, in which Carswell LCJ reviewed the authorities in giving the judgment of the Court of Appeal in Northern Ireland.

135.  Carswell LCJ began with the six separate tests stated in de Smith, Woolf & Jowell, Judicial Review of Administrative Action (5^th ed, 1995) at §6-077[15], which the editors apply to test the validity of a decision where plural purposes or motives are present, and they are as follows:

(1) What was the true purpose for which the power was exercised?

(2) What was the dominant purpose for which the power was exercised?

(3) Would the power still have been exercised if the actor had not desired concurrently to achieve an unauthorised purpose?

(4) Was any of the purposes an authorised purpose?  If so, the presence of concurrent illicit purposes does not affect the validity of the act.

(5) Were any of the purposes pursued an unauthorised purpose?  If so, and if the unauthorised purpose has materially influenced the actor’s conduct, the power has been invalidly exercised because irrelevant considerations have been taken into account.

(6) Would the decision-maker have reached the same decision if regard had only been had to the relevant considerations or to the authorised purposes?

136.  Carswell LCJ reduced this formidable list to two main tests: the true or dominant purpose (tests (1) and (2)), and that framed in terms of irrelevant considerations having a substantial or material influence upon the decision (test (5)).  Test (4) is not supported by the editors in the work cited.  Test (3) deals with evidence tending to show what was the true or dominant purpose of the actor, see the High Court of Australia in Thompson v Randwick Corp (1950) 81 CLR 87 at 106.  Similarly, test (6) deals with the evidence relating to the application of test (5).

137.  Carswell LCJ referred to this extract in Wade & Forsyth, Administrative Law (7^th ed, 1994) at p 436[16] which gives a succinct summary of the true or dominant purpose test:

“ Sometimes an act may serve two or more purposes, some authorised and some not, and it may be a question whether the public authority may kill two birds with one stone. The general rule is that its action will be lawful provided that the permitted purpose is the true and dominant purpose behind the act, even though some secondary or incidental advantage may be gained for some purpose which is outside the authority’s powers.”

138.  We pause here to note that this same passage in Wade & Forsyth was approved by Lord Hutton in R v Southwark Crown Court, ex p Bowles at 651D to E, where consideration may have to be given to the distinction between the two purposes for an act or where it may appear that the two purposes may co-exist.

139.  Carswell LCJ noted the suggestion in Wade & Forsyth at p 439[17] that the doctrine of irrelevant considerations may be an alternative route to the same result, though the view is expressed in Supperstone & Goudie, Judicial Review (2^nd ed, 1997) at §5.42[18] that this may offer a lower threshold of illegality.  He referred to R v Inner London Education Authority, ex p Westminster City Council [1986] 1 All E R 19 at 36, in which Glidewell J expressed the opinion that tests (1) and (5) of those set out in de Smith, Woolf & Jowell “achieve much the same result”.  He considered that the test of substantial irrelevant considerations applied in R v Lewisham London Borough Council, R v Rochdale Metropolitan Borough Council and R v Broadcasting Complaints Commission, ex p Owen provides “a useful alternative to the test of true or dominant purpose, and that each constitutes an application of the basic principle that the donee of a power must act within the limits of the discretion conferred upon him” (at 116d).  He concluded at 117b to d whether one applies the test of true or dominant purpose or that of irrelevant considerations having a material or substantial influence upon the decision, one must reach the same conclusion.  With regard to the evidence before him, he reasoned that if one was to judge the matter in terms of tests (3) and (5), the same result would be arrived at.

140.  We would agree with the approach and legal analysis in Re Kelly and Shiels.  The judge had not adopted the wrong legal test in using the dominant purpose test.  The only matter left to be considered is whether he was in error in concluding on the evidence the allegation that the warrants were applied for the dominant or primary purpose of assisting the Mainland investigation is inherently improbable, even on the lower civil standard of a preponderance of probability; and that there is no evidence the seizures found in any one of the premises searched related only to the Mainland investigation or that C&E officers must have known that the premises from which they were seized were likely to contain materials relevant only to the Mainland investigation (at §156).

E3.    The challenge on factual findings

141.  As summarised by the judge at §§145, 148 and 150, the respondents have asserted in evidence that:

“ Notwithstanding the close cooperation between the parties … at no stage were the materials that had been seized in the course of executing the search warrants handed to Mainland Customs for the purpose of assisting the investigation of suspected offences in the Mainland. It is not disputed that access was granted to Mainland Customs to seized materials nor is it disputed that copies of seized material were handed over to them. However, it is asserted that this was done for the purpose only of assisting the C&E investigation. However the C&E concede that as a result of their actions the Mainland Customs have been able to reconstruct the contents of these documents for the purpose of their own prosecutions and may have made use of information derived from them.

… the respondents argue that the fact the Mainland Customs made derivative use of the materials supplied to them and the fact that they would do so may have been foreseen by the C&E officers does not detract from C&E’s claim that their only purpose in providing these materials was to advance their own investigation.

The position of the respondents is that the C&E had its own on-going investigation into offences and that the warrants were sought and seizures effected in order to carry forward that investigation.”

142.  The judge did not take these assertions at face value.  He analysed the evidence, tested the assertions against the evidence, and considered what inference should be drawn in the circumstances.  In respect of the decision to apply for search warrants, as mentioned earlier, he did not think the evidence was sufficiently compelling to infer that the warrants were obtained for the dominant purpose of assisting the Mainland side of the investigation.  As for the decision to provide copies of the seized material to the Mainland Customs, he found at §153, against the assertion of C&E, that the decision was for dual purposes – to assist and carry forward C&E’s own investigation, and to assist its Mainland counterparts in their side of this joint investigation.

143.  In §§151 to 156, the judge explained his reasons why he declined to infer that the dominant purpose of applying for the search warrants was to assist the Mainland Customs.  It was “beyond doubt” that C&E was legitimately conducting an investigation into criminal offences it suspected were being committed in Hong Kong.  It made sense in the circumstances for C&E and the Mainland Customs to conduct a joint investigation.  But participating in a joint investigation and agreeing to share information that they uncover that may be useful to the other’s investigation is quite a different matter from applying for the search warrants for the dominant purpose of assisting the Mainland investigation.  It is implicit in this allegation that there was deliberate misleading of the judicial officers by falsely representing to them that there were reasonable grounds for suspecting that in the premises for which search warrants were sought there was evidence of an offence or offences committed in Hong Kong.  The judge regarded such an allegation as inherently improbable, and held that before he could be satisfied even on the lower civil standard of a preponderance of probability, he would need more compelling evidence than that adduced by the applicants.  And even if the C&E officers contemplated the possibility of providing copies of the seizures to the Mainland Customs in accordance with the CCA when they applied for the warrants, the judge did not regard that fact on its own as rendering unlawful or improper the applications for the warrants.

144.  Mr Bell sought to challenge the judge’s finding of fact that the applicants had failed to prove the warrants were sought for the dominant purpose of assisting the Mainland investigation.  He submitted the judge should have inferred on the evidence that such an impermissible purpose had exerted a substantial influence on the decision to apply for the warrants.  He contended that the judge had failed to consider the timing of events relating to the Mainland Customs’ investigation and to analyse the impact of such timing on the decision to apply for the warrants.  He complained that the judge had failed to consider and give sufficient weight to a number of matters as set out in §9 of his skeleton submission before us.

145.  We do not propose to set out the detailed complaints put forward by Mr Bell.  We are satisfied that the various matters canvassed in Mr Bell’s written submission had been fully ventilated in the affirmations filed on both sides and in the submissions made to the judge.  Mr Wong took issue with the accuracy and correctness of a number of the matters alleged.  But leaving that aside, as pointed out by Mr Wong, the judge had made references to all but one of those matters alleged, see §§49, 51, 119, 126 to 147 of the 1^st judgment.  There is no reason to think that the judge had not taken them into account.  As he had stated in §118, the fact that he did not mention certain evidence does not mean he has not taken it into account. What appropriate weight should be attached to particular aspects of the evidence is clearly a matter for the judge.  The only matter complained of and not mentioned in the 1^st judgment was the allegation that C&E might not have given full and frank disclosure at the time of applying for the warrants, but that is not an allegation open to the applicants as this was deleted in the re-amended Form 86A in HCAL 82 of 2013.

146.  We do not think the judge’s finding of fact can be faulted.  The burden is on the applicants to establish as a compelling inference that very senior officers of C&E had deliberately and improperly made misleading representation to the judicial officers for the ulterior purpose alleged, sufficient to overcome the inherent improbability that they would have done so, see HKSAR v Lee Ming Tee (2003) 6 HKCFAR 336 at §72. The judge was plainly right to hold that the applicants had failed to discharge the burden of establishing that the warrants were applied for the primary or dominant purpose of assisting the Mainland Customs.

F. THE INFORMATION PROVISION ISSUE

F1. The findings of the judge

147.  Copies of some of the seizures of four search warrants (numbered 3, 4, 9 and 14) were provided by C&E to the Mainland Customs.  They are covered by our ruling on the time limit issue, in which we upheld the judge’s ruling in the applicants’ favour.  But warrants should not have been issued in respect of those numbered 3, 4 and 9, as the IEO provides for warrantless search in respect of non-domestic premises under section 21(1)(a).  We have reversed the judge’s decision on remedial interpretation and adopted an interpretation to make section 21(1)(a) compliant with the Basic Law and HKBOR.  So in respect of warrants numbered 3, 4 and 9, it would still be necessary to consider the applicants’ challenge to the decision to provide copies of some of the seizures to the Mainland Customs.

148.  The judge made a finding of fact by inference that the decision of C&E to provide copies of some of the seizures to the Mainland Customs was for dual purposes: to seek the assistance of the Mainland Customs to carry forward the Hong Kong side of the joint investigation and to assist the Mainland Customs to carry forward the Mainland side of the joint investigation (at §179).  The latter was not a permissible purpose.  Applying the dominant purpose test, he found that the dual purposes were so inextricably intermingled they cannot be separated out and each purpose was equally important.  It would be unrealistic to describe one of them as the dominant purpose.  He therefore held that the decision to provide the Mainland Customs with copies of some of the seizures was unlawful (at §180).

149.  The judge’s reasoning may be stated as follows.

150.  The judge recognised there is nothing improper in C&E providing the Mainland Customs with copies of its seizures if this is necessary to obtain their assistance in respect of them in order to advance the C&E investigation.  The question is whether this was the only reason C&E approached the Mainland Customs in respect of those seizures (at §161). The judge drew as “an irresistible and the only reasonable inference” that this was not the only reason and found that C&E had the dual purposes as stated above (at §179).  He did so because of the two misconceptions he found the C&E officers had laboured under when they provided copies of the seized materials to the Mainland Customs, that “believing that they were entitled, pursuant to the CCA, to share the seized materials with Mainland Customs as long as a caveat was put on their use, and believing that because of the caveat put on their use it was legitimate to regard the seized materials as intelligence only” (at §179).

151.  The judge found there appeared to exist in the minds of the C&E officers a misconception that the CCA, which is purely an administrative arrangement, legitimized their actions of providing copies of seized material to the Mainland Customs for the latter to use for their own private purposes (at §§163, 177).  He referred to Attorney General v Ocean Timber Transportation Ltd [1979] HKLR 298 at 300 to 301 for the propositions that in the absence of a specific statutory provision, the seized materials cannot be used, including being disseminated to third parties, for a purpose other than that for which the law enforcement agency (“LEA”) had authority to seize them, and the authority to seize them is limited to the LEA’s authority to investigate suspected crimes occurring within its jurisdiction or otherwise justifiable within its jurisdiction (at §164).

152.  The other misconception the judge found to exist in the minds of the C&E officers was that if the seized material is described as “intelligence” and a caveat placed on limiting its use to an intelligence purpose, then it is lawful to provide the material to the Mainland Customs under the CCA.  The judge took the view that this is in conflict with the fundamental principles of the law of search and seizure in that the LEA may only use the property for which it was seized, and the LEA is not allowed to derive information from materials acquired under compulsive process, characterize it as “intelligence” and then to pass it to third parties not otherwise authorised by law to receive it.  If it is necessary to relinquish possession of the materials into the hands of a third party not otherwise authorised by law to receive them as part of the LEA’s investigation, the LEA should do so on condition that the third party cannot make use of them for its own private purpose including making derivative use of the information contained in them (at §§168 to 178).

153.  We think it implicit in the finding of these misconceptions that as the C&E officers did not consider there was anything improper in providing the copy seized materials to the Mainland Customs for “intelligence” purposes under the CCA, the applicants would have a lower threshold to overcome to establish the alleged improper purpose.  In contrast with the decision of applying for the warrants, the applicants would not need to overcome the inherent improbability that the C&E officers had knowingly engaged in serious wrongdoing.

F2. The arguments on appeal

154.  Mr Wong attacked the factual finding of dual purposes.  He submitted this was artificially splitting the purpose for the provision of the copy seized materials to the Mainland Customs into two.  Further, this finding is inconsistent with the judge’s dismissal of the applicants’ challenge against the decision of C&E to apply for the warrants, including the judge’s rejection of the argument that the impermissible purpose of assisting the Mainland Customs had tainted the decision to apply for the warrants.  He contended that the judge had failed to distinguish between “purpose” and “effect” and had failed to apply properly the dominant purpose test.  And it was contrary to the evidence and plainly wrong to find or infer that the C&E officers were under the two misconceptions as mentioned above.

155.  Mr Wong also challenged the holding in law that it is not permissible for C&E to pass on information derived from seized materials to the Mainland Customs for the latter to investigate crimes within their jurisdiction.  He submitted that such passing of information by C&E to the Mainland Customs is permissible for the purpose of assisting the Mainland Customs to detect or investigate crimes in their jurisdiction, as opposed to using the materials as evidence for the prosecution of crimes in their jurisdiction.  He cited R v Southwark Crown Court, ex p Customs and Excise Commissioners [1990] 1 QB 650 at 662B to E; Gregory Michael Hall v Commissioner of ICAC [1987] HKLR 210 at 217B to C; and Marcel v Commissioner of Police [1992] Ch 225 at 256B to C.

156.  Mr Bell submitted this is an appeal against the finding of fact on dual purposes which the judge found could not be disentangled.  The judge had taken a realistic view of what took place in the joint investigation and there is no valid basis to interfere with the finding he is entitled to make, contrary to the assertions in the evidence of C&E. He also contended that on the evidence, there was no adequate filtering or scrutiny of the seized materials before they were copied and sent to the Mainland Customs.  It was apparent that C&E was aware of the potential risk that the Mainland Customs would use the materials provided for their own investigation in the Mainland.  Further, the nature of some of the documents provided demonstrated they could not be for the purpose of assisting the investigation in Hong Kong.

157.  As to whether it is lawful to provide information derived from seized materials to the Mainland authorities to assist them in the investigation of crimes within their jurisdiction, Mr Bell submitted that the judge is correct and the authorities cited by Mr Wong do not support his contention.

F3. The finding of dual purposes and applying the dominant purpose test

158.  Mr Wong argued with his usual persuasiveness that in holding there were dual purposes for the decision to provide the copy seized materials to the Mainland Customs, the judge had artificially split the purpose into two, particularly as the judge went on to find at §180 that the two purposes he identified were “so inextricably intermingled with one another that they cannot be separated out.” He submitted that the judge had disregarded the fact that in view of the nature of the joint investigation, any furtherance of the Mainland side of the joint investigation would naturally assist in taking forward the Hong Kong side of the joint investigation.  The same shipments of un-manifested goods in Hong Kong could give rise to smuggling offences in both jurisdictions.  As stated in the evidence of C&E, the joint investigation was like “the two sides of a coin”, and C&E “simply could not avoid when demonstrating a crime in Hong Kong, that had nothing to do with demonstrating a crime in the PRC”[19].  It was accepted by the judge in §128 that the investigations in both jurisdictions were “interdependent” and “necessitated close cooperation between C&E and Mainland Customs”.

159.  Mr Wong pointed to the evidence which showed that the Mainland Customs, upon considering and investigating the information provided by C&E, has actually assisted C&E in many ways[20]. There is no evidence that such provision of information was for the purpose of enabling the Mainland Customs to investigate other offences completely unrelated to the suspected smuggling activities of the Keen Lloyd group under joint-investigation or that it was to benefit exclusively the Mainland side of the joint investigation.  He contended that the judge had failed to distinguish between “purpose” and “effect”, there was just one purpose (that of advancing C&E’s own investigation) and assisting the Mainland investigation was just a consequence.

160.  We are not persuaded by the above submissions that there is sufficient basis to disturb the judge’s finding of dual purposes, which he drew as an irresistible and only reasonable inference on a realistic view.  Nor do we think the judge was plainly wrong in finding on the evidence that the C&E officers had laboured under the belief (leaving aside for the time being if that was a misconception) that there was nothing improper in providing the copy seized materials to the Mainland Customs for “intelligence” purpose under the CCA thereby assisting the Mainland investigation.

161.  We are inclined to think it is not of much significance whether one looks at the decision as having dual purposes, or whether it should be treated as made for a composite purpose in light of the nature of this joint investigation.  There is undeniably an element of giving assistance to the Mainland investigation, no matter whether this is regarded as a purpose or as a result of such provision of information.  That there is no evidence this was done to benefit primarily or exclusively the Mainland investigation is not to the point.  The question that needs to be addressed is whether the judge is right in holding that each of the dual purposes was inextricably intermingled and equally important so that it could not be said that the dominant purpose of the decision was for the permissible purpose of advancing C&E’s own investigation.

162.  Mr Wong made a forceful point that the judge would appear to have overlooked that after information derived from the seized materials was given to the Mainland Customs, further discovery thereon by the latter (which naturally would have furthered the Mainland side of the joint investigation) was provided to C&E who were enabled to make further discovery (which actually furthered the Hong Kong side of the joint investigation) and which in turn led to further arrests in Hong Kong by C&E in late 2012 and early 2013[21].  So the Mainland Custom’s use of the copied materials as intelligence in connection with their side of the investigation was merely the means to an end so far as C&E were concerned, in that any fruit borne in that exercise by the Mainland Customs was intended to further the Hong Kong investigation.  Mr Wong described the furtherance of the Mainland investigation as having a bouncing back effect on C&E’s investigation.

163.  To make good his point, Mr Wong provided a summary of the evidence showing how the furtherance of the Mainland side of the investigation was intended to further and did further C&E’s investigation. We do not propose to set out the evidence helpfully summarised save to mention some salient matters.

164.  The handing of copies of some of the seized materials to the Mainland Customs was pursuant to C&E’s request to the Mainland Customs for assistance, not pursuant to the latter’s request to C&E for exchange of intelligence[22].  In C&E’s written request for assistance, the entire basis for providing the copied seizures was to seek the Mainland Custom’s assistance in cross-matching the documents seized by C&E with the Mainland materials so that C&E could confirm its investigation of the smuggling and money laundering crimes[23].  It was accepted by the judge in §127 that “in order to carry forward the investigation it was necessary to go through an exercise comprehensively comparing and cross-matching the declarations made and documents submitted to both C&E and the Mainland Customs including cargo manifests, invoices and sale contracts amongst others”.  And, as submitted by Mr Wong, the events on the Mainland would form part of the prosecution case in Hong Kong.

165.  These examples were given by Mr Wong as to how the furtherance of the Mainland investigation (derived from materials supplied by C&E) was intended to further and did further the Hong Kong side of the investigation: the location of hidden files in a cloned hard disk by the Mainland Customs (Mr Wong acknowledged this was mentioned in §142 of the 1^st judgment), as a result C&E was able to discover a batch of “Truck Scale Invoice”[24]; the Mainland Customs assisting C&E to identify the signatures on the Cheque Request Vouchers[25], revealing the system of endorsement or approval within the companies in Hong Kong and this facilitated the investigation into the money laundering offences[26]; the Mainland Customs cross-matching manifests with corresponding records which had been submitted to them, and this enabled C&E to identify suspicious shipments[27].  We note also that details of the investigative and analytical findings the Mainland Customs provided to C&E as a result were not disclosed in the evidence for operational reasons[28].

166.  We are satisfied it is open to find on such evidence that the furtherance of the Mainland side of the investigation was intended to further and did further the Hong Kong side of the investigation.  This is a material factor that the judge did not appear to have taken into consideration when he applied the dominant purpose test, casting doubt on his finding that the dual purposes were so inextricably mingled that each was equally important.  We should therefore consider the matter afresh.

167.  We should look at the purpose at the time the decision was made to provide copies of some of the seized documents to the Mainland Customs.  The subsequent effect, if it was foreseeable at that time, may tend to prove the purpose, but it is not in itself the criterion (Re Kelly and Shiels, p 116e to f).  We would test the evidence by asking if the decision to provide copied seized materials to the Mainland Customs would still be made if C&E had not desired concurrently to achieve the impermissible purpose of assisting the Mainland investigation (test (3) discussed in Re Kelly and Shiels).  We are inclined to think that on the evidence C&E would still have provided the information in order to advance its own investigation.  We also test the evidence by asking if the impermissible purpose had materially influenced the decision of C&E (test (5) in Re Kelly and Shiels).  On the above finding that the furtherance of the Mainland investigation was intended to further and did further the Hong Kong side of the investigation, we do not think the impermissible purpose would have materially influenced C&E’s decision.  It seems to us the dominant purpose test would be satisfied in this instance, and if one is to test this by the alternative test of an irrelevant consideration having a material influence on the decision, the same result would be arrived at.

168.  Put in another way, although the decision to provide information to the Mainland Customs may serve dual permissible and impermissible purposes, the impermissible purpose constituted only an incidental consideration and the purpose of furthering C&E’s own investigation far outweighed the impermissible purpose.

169.  Mr Wong also referred us to R (Miranda) v Secretary of State for the Home Department & Anr [2016] EWCA Civ 6, in which the English Court of Appeal arrived at a similar conclusion in applying the dominant purpose test to the use of the power of detention in paragraph 2(1) of Schedule 7 to the Terrorism Act 2000.  The court held in §31 that the counter-terrorism consideration (a permissible purpose under the Act) and the national security consideration (not a permissible purpose under the Act) were linked and overlapped, as was reflected by the fact that this was a joint operation of the Security Service and the Metropolitan Police.  The fact that the exercise of the power by the Police under the Act also promoted the different but overlapping purpose of the Security Service did not mean that the power of detention was not exercised for the purpose of the Act.  The Police had exercised the power for its own purpose of determining whether the person detained appeared to be a person falling with the relevant provision of the Act.

170.  We do not think it necessary to deal with other submissions made to us on both sides.  We would only express our agreement with Mr Wong that the applicants’ contention of a wholesale passing of documents to the Mainland Customs without adequate filtering or scrutiny is not borne out by the evidence, nor is there an evidential basis for the contention that C&E must have known of the potential risk that the Mainland Customs would use the materials provided in a manner in breach of the CCA or the caveats, or that they could not be trusted.

171.  We hold that the true or dominant purpose for the decision to provide copies of some of the seized materials to the Mainland Customs was to further C&E’s investigation.  The applicants’ challenge on this ground fails.

F4. Derivative use of information

172.  In view of the above conclusion, it is not strictly necessary to deal with Mr Wong’s submission that the judge had erred in law in holding that it is impermissible for C&E to pass on information derived from the seized materials to the Mainland Customs for the latter to investigate crimes within their jurisdiction.  We will deal with this succinctly for completeness as submissions have been made to us.

173.  We think the judge is correct in his holding in view of Attorney General v Ocean Timber Transportation Ltd.  The authorities cited by Mr Wong (R v Southwark Crown Court, ex p Customs and Excise Commissioners at 662B to E; Gregory Michael Hall v Commissioner of ICAC at 217B to C; and Marcel v Commissioner of Police at 256B to C) do not support his contention to the contrary.

174.  As submitted by Mr Bell, we are here concerned with the IEO and it is the import of this ordinance that search warrants should only be executed in relation to the investigation of the domestic offences under this ordinance.  The judge had contrasted the IEO with sections 6(2)(b) and (4) of OSCO, which authorises the Secretary of Justice, in certain circumstances, to disseminate seized materials to external LEAs (§163 of the 1^st judgment).

175.  Mr Bell rightly pointed out that the case of Southwark Crown Court provides no support to Mr Wong’s contention, as this was concerned with search warrants under the Drug Trafficking Offences Act 1986 for the investigation of “drug trafficking offences” and this was defined to include investigation by a foreign law enforcement agency relating to drug trafficking offences in a foreign jurisdiction.  It was held that the express references to corresponding law of other countries to the Single Convention on Narcotic Drugs 1961 meant that the draftsmen had in mind the international obligations of the United Kingdom (at 660E, 662B to D).

176.  We do not think the statements in Gregory Michael Hall and Marcel v Commissioner of Police relied on by Mr Wong detract from the principle stated in Attorney General v Ocean Timber Transportation Ltd that the power to use the seized documents is restricted to the wordings of the legislation.

177.  Mr Bellreferred to Chan Mei Yiu Paddy v Secretary for Justice (No 2) §112, in which the court noted the concession made by the Secretary for Justice that the police were wrong to permit the LEA officers of a foreign country to make copies of seized documents kept in the custody of the police.  We do not think this case is of assistance as the seizure was made under a very different legislative scheme in the Mutual Legal Assistance in Criminal Matters Ordinance, Cap 525.  The concession was made in the context of section 12 (8) of the ordinance, which provides that where a seized object is delivered into the custody of the police, the police shall arrange for it to be kept for a period as specified pending a direction in writing from the Secretary for Justice as to the manner in which the thing is to be dealt with. In that case, the documents were copied and provided to the foreign LEA before the Secretary had the chance to give a direction under section 12(8).  The judgment has nothing to do with the issue of derivative use of information.

G. Disposition of the appeals

178.  In the circumstances, for the reasons given above, we held that the applicants only succeeded in their challenge based on the time limit issue.  The other challenges, as explained above, should be dismissed.

179.  As mentioned earlier, we allow the appeal in CACV 107 of 2015 and grant the remedial interpretation as indicated.

180.  As for CACV 97 of 2015, again as indicated earlier, we set aside declarations (1) and (4) granted by the judge on 23 December 2014.  By reason of our determination on the time limit issue, declarations (2) and (3) shall stand notwithstanding our reversal of the decision of the judge on the provision of information issue. To that extent, the appeal is allowed.

181.  Wealso dismiss the cross-appeal in CACV 97 of 2015 and declaration (5) granted by the judge on 23 December 2014 shall stand.

182.  We direct parties to file submissions on costs of the appeal and costs below in light of our conclusions in these appeals,

(a) The Commissioner and Department of Justice shall file submissions on costs by 3 May 2016;

(b) The applicants shall file submissions on costs by 17 May 2016;

(c) The Commissioner and Department of Justice shall file submissions in reply by 24 May 2016.

183.  Last but not least, we wish to express our gratitude to the assistance provided by counsel in these appeals.

Annex