RE IP AND WILLIS

HEADNOTE

Judicial review - search warrant of the ICAC - contents - validity - legal professional privilege confidential information.

1989, M.P. No. 1472.

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. This is a motion for Judicial Review arising out of the granting by Miss Cannon of a search warrant at the request of the ICAC to search the offices of a firm of solicitors in Hong Kong, Messrs. Ip and Willis.

FACTS

2. There are in the affidavits filed small areas of conflicting evidence, but the main factual background against which the application is made is not in dispute.

3. On May the 25th of this year, the ICAC received two complaints from prisoners serving sentences at Lai Chi Kok Remand Centre. One was Mr. Szeto Tak-kuen and another prisoner was Mr. Lee Fu-shing. Their complaints were to the effect that there was a solicitor's clerk in Hong Kong who had been accepting excessive fees to expedite appeal court procedures.

4. A Mr. Michael Squires, who was a Chief Investigator, was the officer assigned to that investigation and the prisoners were interviewed by two officers simultaneously to ensure no collusion and statements were taken. During the course of those interviews, one of the complainants indicated that other persons in custody had similar complaints about this particular lawyer's clerk. Further enquiries took place and the officer, recognising that these people had been clients of a firm of solicitors, obtained from the two prisoners waivers of privilege in respect of all communications between them and their solicitors. He also telephoned Mr. Andrew Willis a partner in the firm and said that he wished to speak to him regarding a confidential matter. On June 22nd, Mr. Willis attended the ICAC offices at Murray Road and he was served with two waivers.

5. The officer told Mr. Willis that he did not wish to inspect the files but only the statements of account and receipts. Later, files were produced to the officer; the allegation that the ICAC had obtained was that Mr. Szeto had paid $50,000 for the purpose of being represented in a criminal appeal by this firm Ip and Willis; the officer saw, for example, in the file relating to the prisoner Szeto, that the official receipt showed that only $24,000 had been paid and so the officer naturally inferred, that assuming Mr. Szeto was right, $26,000 had been pocketed by somebody.

6. Later on, the officer told Mr. Willis that there appeared to be truth in the allegations and that there may well have been other clients similarly deceived by this clerk. Mr. Willis was told that the officer did not wish to look at the files of these other clients, but that he wanted to know their names and addresses so that they could be interviewed, and he wanted to see the official receipts so that any allegations made by the clients could be checked against the official receipts.

7. At about 4:30 p.m., the clerk concerned arrived at the office and was spoken to by Mr. Will is who apparently gave him legal advice. He was arrested for an offence of criminal deception. His office was searched and a customer receipt in someone else's name was found.

8. Before leaving the office, the ICAC officer, Mr. Squires, told Mr. Willis that all he wanted was the names and addresses of other clients and the official receipts. Subsequently, although, on June 23rd according to Mr. Squires the solicitors had promised to give this information, they declined to do so saying that it was privileged information and they were not obliged to give it. The solicitors were told that a search warrant would be applied for if they did not give the information.

9. The warrant was issued at 2.15 p.m. on June 23rd, and it was executed later that afternoon at the solicitor's office.

10. Mr. Willis was shown the warrant but he refused to hand over any information. As a result of a compromise subsequently reached, the documents sought were put into sealed envelopes. On June 26 Nazareth J. granted an 'ex-parte' injunction restraining the ICAO from removing the documents and on June 27, the learned Judge gave leave to move for Judicial Review.

ICAC

11. The ICAC is a body set up in Hong Kong in 1974 under an Ordinance (Cap 204) which provides for the establishment of an independent commission against corruption and as the name implies that is its purpose. It has been given, by the Government, wide powers and amendments have been made to the Ordinance after 1974. In particular in 1976, amendments were made permitting the commission to obtain search warrants.

"10B. Without prejudice to section 16 or section 17(1) of the Prevention of Bribery Ordinance, if a magistrate is satisfied by information on oath that there is reason to believe that there is in any premises or place anything which is or contains evidence of the commission of any of the offences referred to in section 10, he may by warrant directed to any officer authorise such officer, and any other officers assisting him, to enter and search such premises or place."

12. Under Section 10C, the officer authorised is entitled to search a person, search the premises, seize and detain anything which he has reason to believe to be or to contain evidence of any offences under S10 and detain any person found in the premises for a period 3 hours. Under Section 10D he may take photographs, fingerprints, weight and measurements of persons arrested. By virtue of Section 13A of the Ordinance, also added in 1976:

"Any person who resists or obstructs an officer in the execution of his duty shall be guilty of an offence and shall be liable on conviction to a fine of $5,000 and to imprisonment for 6 months."

13. So that means that if in the course of a search warrant being executed, a person does refuse to provide information which is sought then he can be arrested and liable to a fine and imprisonment.

14. Further, Section 18 was also added. It reads as follows:

"Nothing in this Ordinance shall prejudice any claim to privilege which any person may have at common law in relation to any communication, document or other thing made or given to a solicitor or counsel."

15. Section 10 specifies a variety of offences which may be the subject of a warrant issued under Section 10B.

16. This application raises two points of general public importance:

1. the validity of search warrants issued to the ICAC; and

2.    the extent of Legal Professional Privilege when such a warrant is issued for and executed on a solicitors office.

I have been asked by counsel to give some guidance as to the content and procedures for search warrants in general in Hong Kong, as apparently there has been no judicial decision on them.

17. It would, however, be more appropriate and authoritative for that to come from the Chief Justice, or the Court of Appeal. My duty is to rule on the matters now before me and this judgment is confined to the issues raised by the Notice of Motion.

ICAC SEARCH WARRANTS

18. This is an authority directed to an officer of the ICAC permitting him to enter premises and seize evidence found there.

19. It is the right of every citizen only to allow those persons to enter his home or workplace whom he permits. This right to privacy is enshrined in our system of Common Law and is found in nearly all Commonwealth Jurisdictions (England has a separate statutory code). That right can only be taken away when a sworn information is placed before a magistrate who decides on that material whether such a warrant is justified. This is a judicial act, not a "rubber stamp" procedure. The magistrate is an important safeguard for the prevention of abuse, for example, from the unwarranted interference by a government department into a citizen's private life, or the harassment of persons by a police department.

20. Before I deal with the contents and form of such a warrant, I shall briefly set out the relevant principles of what is called Legal Professional Privilege and then relate those to the instant matter.

LEGAL PROFESSIONAL PRIVILEGE

21. Legal Professional Privilege has been recognised for over 400 years in English Law, see Berd & Lovelace 21 ER 33. It has its roots in the administration of justice, see Greenough v. Gaskell (1833) 1 My & K 98 at 104. As was said by Kekewich J. in Williams v. Quebrada [1895] 2 Ch. 751, the rule is "essential to the due administration of justice."

22. A lawyer and his client should be able to discuss fully and frankly matters between them without the risk of those matters being disclosed. The privilege, however, is that of the client and not the solicitor. As a right can be waived, then the client is entitled to waive that privilege. Also as the protection is in the interests of justice, then when the legal communication is for the purpose of a crime or fraud to which the solicitor is a party, or when the solicitor innocently advises on steps in the furtherance of a crime or fraud, the privilege is lost. (See R. v. Cox & Railton (1884) 14 Q.B.D. 153, O'Rourke v. Darbyshire [1920] A.C. 581, Butler v. Board of Trade (1971) 1 Ch 680.)

23. In the old cases, it was thought that this protection only applied to communications concerning or involved with litigation. As the role of a lawyer has progressed, so has the scope of Legal Professional Privilege been widened to encompass a lawyer's advice, not only on matters of actual or proposed litigation, but on general matters with regard to the client's business activities.

24. These principles have recently been re-examined by the Court of Appeal in England in Balabel v. Air India (1988) 2 WLR 1036 where Taylor L.J. giving the judgment of the court said at page 28:

"Although originally confined to advice regarding litigation, the privilege was extended to non-litigious business. Nevertheless, despite that extension, the purpose and scope of the privilege is still to enable legal advice to be sought and given in confidence. In my judgment, therefore, the test is whether the communication or other document was made confidentially for the purposes of legal advice. Those purposes have to be construed broadly. Privilege obviously attaches to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice. But it does not follow that all other communications between them lack privilege. In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice may be required or appropriate on matters great or small at various stages."

And he said at p.29:

"It may be that the broad terms used in the earlier cases reflect the restricted range of solicitors' activities at the time. Their role then would have been confined for the most part to that of lawyer and would not have extended to business adviser or man of affairs."

25. There must, however, be a limit on what passes between a lawyer and client from being disclosed. As was said by Dawson J. in Baker v. Campbell (1983) 153 CLR 52 at page 122:

"The privilege cannot operate to put beyond the reach of the law documentary or other material which has an existence apart from the process of giving or receiving advice or the conduct of, litigation. There is no privilege for physical objects other than documents and there is no privilege for documents which are the means of carrying out, or are evidence of, transactions which are not themselves the giving or receiving of advice or part of the conduct of actual or anticipated litigation."

26. The protection afforded by Legal Professional Privilege is part of the law of evidence - it prevents communications being disclosed either in court or in the process of discovery in civil litigation.

27. There is, as well, another principle which is as firmly enshrined in the Common Law and that is the right to confidence on matters disclosed to a lawyer. This is similar to disclosure made to a priest or doctor. Such person must disclose in court their client's confidence because they are not legal advisers, but they and lawyers are not entitled outside the court to break that confidence without good cause. For example, if a journalist sought to discover whether a Mr. X has visited a solicitor for advice, or who were the clients of a solicitor, then that information is confidential and should not be disclosed. This is, however, not Legal Professional Privilege, but the right to have one's private life kept confidential. The law on confidence is wide and is still developing to accommodate modern practices and situations. What is or is not confidential, whether such confidence can be lost has been the subject of numerous decided cases. So far therefore as this instant case is concerned, the information which the ICAC required the solicitors to disclose may be covered by Legal Professional Privilege or by the general rule as to confidence.

28. With this in mind, I turn then to the form and content of a search warrant which is aimed at searching a solicitor's office and seizing evidence therein. The search warrant is exhibited to Mr. Willis's affidavit and I set it out.

"IN THE MATTER of Section 10B of the Independent Commission Against Corruption Ordinance, Chapter 204.

IN THE MAGISTRATE'S COURT AT CENTRAL

HONG KONG

WARRANT TO ENTER AND SEARCH

INFORMATION having this day been laid before me, a permanent magistrate, and oath (or declaration) being now made before me substantiating the matter of such information -

AND WHEREAS it appears to me that there is reason to believe that in a premises or place, namely -

IP & WILLIS, Solicitors, Room 602-5,

Far East Consortium Building, 6th Floor, 204-206 Nathan Road, Kowloon.

there may be anything which is or contains evidence of the commission of an offence referred to in Section 10 of the Independent Commission Against Corruption Ordinance, Chapter 204, 1 hereby authorise -

Michael Leslie SQUIRES LEUNG Koon-hoe

NG Kim-man

investigating officers of the Independent Commission Against Corruption, and any other officers assisting them, to whom this Warrant is directed, to enter such premises or place, and search the same.

DATED this 23rd day of June 1989.

29. I am told from the Bar that this is a standard form which has been in existence for over 10 years. Only the address and the persons authorised to enter are changed for each search warrant.

What should such a warrant contain?

30. As I have said earlier, it is an important document as it permits persons to enter premises who otherwise would be trespassers, and if those persons are obstructed then a criminal offence, with possible imprisonment, is committed.

31. As a matter of commonsense, a person who has a search warrant given to him ought to know:

(a) the reason for his privacy being invaded; and

(b) what the officers are searching for.

A more sophisticated exposition as to the rights of citizens to know from the warrant why their premises are being searched is found in three Commonwealth cases.

    (i) Rosenberg v, Jaine [1983] NZLR 1 was a decision of the much respected Davison C.J. who, dealing with a search warrant served on a solicitor's business, said at p. 5:

32. … There are three important principles:

"1. The warrant should describe the alleged offence in respect of which the search is authorised so as not to mislead the reader as to the nature of the alleged offence.

2. The warrant may authorise the search and seizure only of such things in respect of which the District Court Judge is satisfied that reasonable grounds for belief exist that they are evidence of the commission of an offence.

3. The warrant must be in sufficiently specific terms in regard to what is authorised to be searched for and seized so as to enable to occupier of the premises to understand and, if necessary, obtain legal advice about the permissible limits of the search."

    (ii)    Baker v. Campbell (1983) 153 CLR was a decision of seven judges of the High Court of Australia. Although a majority decision of 4-3, all the Judges stressed the particularity of the search warrant then being considered.

33. Mason J., as he then was, at p. 81 said of a search warrant. "Its function is to authorize a search and seizure of materials which will implicate a person in the Commission of the offence. The search and seizure which it authorizes is designed, among other things, to yield evidence which can be tendered by the prosecution in the subsequent trial of a person for the offence described in the warrant."

    (iii)    Descoteaux v. Mierzwinski (1982) 70 C.C.C. 385 141 D.L.R. 590 was a decision also of seven judges of the Supreme Court of Canada.

34. In the Judgment of the Court, the contents of a search warrant and its justification were closely examined. At p. 410, the Court said "Searches are an exception to the oldest and most fundamental principles of the common law, and as such the power to search should be strictly controlled. It goes without saying that the justice may sometimes be in a poor position to assess the need for the search in advance. After all, searches, while constituting a mean of gathering evidence, are also an investigative tool. It will often be difficult to determine definitively the probative value of a particular thing before the police investigation has been completed. Be that as it may, there are places for which authorization to search should generally be granted only with reticence and, where necessary, with more conditions attached than for other places. One does not enter a church in the same way as a lion's den, or a warehouse in the same way as a lawyer's office. One does not search the premises of a third party who is not alleged to have participated in the commission of a crime in the same way as those of someone who is the subject of such an allegation."

35. All of those three cases were dealing with the principles involved in executing search warrants on solicitors' offices.

36. In the Rosenberg case, the Chief Justice said:

"The warrant there was far too wide and general in its terms. It was within the power of the police to so limit the terms of the warrant sought but they chose not to do so and not to disclose the information."

37. In the Baker and Descoteaux cases, all the judges emphasised the importance of a privilege claim on the execution of a search warrant.

38. In those three cases the search warrants themselves were set out and they are specific in character referring to the particular crime and the particular documents, quite unlike the instant search warrant, and yet those search warrants were held to be invalid.

39. In my judgment, when the magistrate had to consider the issue of this search warrant, 'warning bells' should have sounded. She was being asked not only for a warrant to search a solicitors office, but it was in respect of an employee of the firm who was allegedly acting without the consent or connivance of the firm. Anyone looking at this warrant may have thought that it was Messrs. Ip & Willis who were being investigated by the ICAC.

40. Where do I find the offence to which the warrant was issued? It is said to be an offence referred to in Section 10 of the Ordinance. As I have said before, Section 10 contains a large number of offences ranging from perverting or obstructing the course of the justice, to theft, evading liability by deception, making off without payment etc. This warrant was silent as to the particular offence. What are the documents or material which the officers were seeking? In the Commonwealth cases, to which I have referred, categories or classes of documents were set out, but I find nothing in this warrant. What were they looking for? Documents, books of account; files, physical objects? It could have been anything. The warrant is so wide, in my judgment, as to lead to the conclusion that these officers were authorised to search for and seize anything.

41. Further, it did not limit the documents, if they were being sought, so that Legal Professional Privilege was not infringed. Section 18 of the Ordinance declares that the Common Law position does not prejudice any claim to privilege in relation to any communication document or other thing made or given to a solicitor or counsel. A person in the office, who was suddenly handed this document, would not know if it was a partner, an employee, or a client of the firm who was under investigation, and what should be handed over.

42. I would most respectfully adopt the words of Davison C.J. in the Rosenberg case when he set out the three principles as the validity of a search warrant. In my judgment, this warrant is so wide and general in its terms as to be invalid. The magistrate was led to assume that it was unnecessary to particularise the warrant because of the use of this standard form. She clearly had sufficient evidence to issue a warrant by virtue of the sworn information of Mr. Squires. Nevertheless, I am in no doubt that this search warrant for the purpose of searching a solicitors office relating to the suspected crime of one of its employees did not lawfully authorise the officers to enter the premises.

43. Miss Hartstein, who recognises the inherent problems of the search warrant as a document, submits that the officers had made it clear to the solicitors the reason for the search and the documents they required.

44. It is right that I should emphasise that the ICAC officers here conducted themselves openly and courteously. They had a number of conversations with the solicitors who were in no doubt that it was their clerk who was being investigated and what was required to be produced. Nevertheless what is being challenged here is the issue of the search warrant by the magistrate.

45. Although I accept that the officers behaved perfectly properly, the warrant they had did not authorise them to enter and whatever they explained, or however they themselves sought to limit the scope of the warrant, the entry and any subsequent seizure were unlawful.

46. The second point which arises was whether the information the officers sought was the subject of Legal professional Privilege, or was in any other way privileged. In my judgment it was not. The address of a client may in very special circumstance be privileged if the client has specifically instructed his solicitors not to disclose it, but I cannot see any legal right not to disclose a client's name.

47. The principle was stated over a hundred years ago in Re Cathcart (1870) 5 Ch App 703 where the judge said:

"What a solicitor is privileged from disclosing is that which is communicated to him sub sigillo confessionis – that is to say, some fact which the client communicates to the solicitor for the purpose of obtaining the solicitor's professional advice and assistance."

There is no doubt also that a solicitor must disclose his client's identity in court if he is asked that question. That was decided over a hundred years ago in Bursill v. Tanner (1885) 16 QBD 1 and. followed consistently since then. This principle was last referred to in Pascall v. Galinski [1970]1 QB 33 and it is found as part of the general instructions given to solicitors in Cordery on Solicitors.

48. I see no ground therefore for Legal Professional Privilege attaching to a client's identity. Further, privilege is for the benefit of the client - this information was required also for their benefit. The allegation was that they had been defrauded - it was therefore in the client's interest for the name to be given.

49. The receipts were in a similar position; all they do is to evidence the payment of a sum of money - they are not like a solicitor's bill of costs, which may identify the nature of the work done.

50. As I have said before, despite Legal Professional Privilege, solicitors also have a general duty of confidence to their clients. I appreciate that some people may not like their names to be given to a police officer or an ICAC officer, and may wish to keep quiet the fact that they had been involved in a criminal appeal, but this was an official request for information from the ICAC who are a lawful body.

51. The solicitors therefore had no good reason for withholding this information. Whilst they may initially have questioned the right for such inquiry, they should have been satisfied that they would not be in breach of their duty of confidence to their clients by handing over what was sought.

52. I have stressed in the course of this judgment the care with which a search warrant must be framed to enter a solicitors' office, but equally I emphasise that solicitors in Hong Kong must realise that they, as well as other citizens, are under a duty to assist either the Police or the ICAC in their investigation of crime.

53. All the ICAC were seeking at that first interview was a list of the names and addresses of those who had been this clerk's clients and the receipts showing what had officially been recorded.

54. If Mr. Ip and Mr. Willis had stood back for a moment, they should have realised that this information was not privileged and that they would not be in breach of their duty of confidence in disclosing it. It was purely factual information unconnected with any communication which could have passed in confidence between themselves and their clients.

55. Further, as I have said before, this was not information to their clients disbenefit. The three Commonwealth authorities on Legal Professional Privilege, which I have cited, were dealing with a factual situation where information which was potentially harmful to a client was being sought.

56. Here the information was not only to assist the criminal process, but also perhaps uncover a fraud on the client himself.

57. I can see no justification at all for Mr. Ip and Mr. Willis's actions in denying this information. They may have mistakenly believed that they were helping a client, but what they were doing was assisting their clerk's alleged illegal activities from being properly investigated.

58. In view of my above conclusion that:

(1) the warrant was invalid, but

(2) the information sought was not in anyway privileged.

I have carefully considered whether, as Judicial Review is a discretionary remedy, I should exercise my discretion in favour of granting some or all of the orders sought.

59. A search warrant is an important document, fundamental to the protection of society's right not to have our premises entered and our property taken without our consent. I have held that this search warrant was invalid and it is only right therefore that I should quash it. The fact that such a warrant, in view of my findings, was unnecessary is a matter which goes to the exercise of my discretion as to the costs of this hearing.

60. I would like to thank counsel for their very clear submissions. This was as well argued a case as it has been my privilege to try in Hong Kong. The only order I make on the Notice of Motion is an order of certiorari to quash the warrant which was granted by the magistrate; in so far as the injunction which was granted by Nazareth J., I discharge it. I do not make any other order, as the information sought is in two sealed envelopes and in the possession of the ICAC. They are at liberty to open them.

61. Having heard further submissions, I make no order as to costs.