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Can you challenge an ICAC search warrant on the ground that it does not contain sufficient information?

2020-05-01

Introduction

It is one of our fundamental rights to have our private premises protected from arbitrary intrusion in the absence of a valid warrant or court order, which is a right widely recognised in Hong Kong’s constitutional and other human rights instruments. Under section 17(1A) of the Prevention of Bribery Ordinance (Cap. 201) (“POBO”), a court may issue a search warrant if it is satisfied that there is reasonable cause to believe that in any premises there is anything which is or contains evidence of an offence under the POBO. However, the POBO does not specify the required form or content of such a warrant. In the recent case of Y v The Commissioner of the Independent Commission Against Corruption [2020] HKCFI 161, the Court of First Instance gave guidance on what information is required to be included in a search warrant issued pursuant to section 17(1A) of the POBO.


Background

The applicant’s (the “Applicant”) home was searched by officers from the Independent Commission Against Corruption (the ICAC”) under a warrant granted by a magistrate pursuant to section 17(1A) of the POBO. The Applicant then sought to challenge the search warrant by applying for a judicial review on the main ground that the warrant was invalid as it failed to specify the nature of the offence and thus the seizure of items during the search was unlawful.


Required contents of a search warrant

The Applicant argued that the warrant only specified the statutory provisions without any particulars of the suspected offence, time frame and parties involved. Proceeding on the basis that the POBO does not require any particular form or content for a warrant, the judge (the “Judge”) relied on the general principle laid down by the Court of Appeal in Apple Daily Ltd v Commissioner of ICAC [2000] 1 HKLRD 647 that a warrant would be held valid so long as it contains the basic details which are provided for in the statute. As to what basic information needs to be included in a valid search warrant, the Judge relied on the conclusion reached by the Court of Appeal in the case of Philip KH Wong, Kennedy YH Wong & Co v Commissioner of Independent Commission Against Corruption (No.2) [2009] 5 HKLRD 379, which concerned a search warrant issued to ICAC officers pursuant to a similar section under the Independent Commission Against Corruption Ordinance (Cap. 204). On such basis, the Judge held that the basic information which should be stated in a warrant issued under section 17(1A) of POBO is: (1) the alleged offence; (2) the magistrate has reasonable cause to believe that there are materials which are or contain evidence of the alleged offence; (3) the premises to be searched; (4) the officer empowered to search; and (5) the description of the materials to be searched. Based on the above, the Judge held that the warrant in question contains all the basic information stated above and thus is lawful.

In particular, given that the investigation was on-going and the Applicant, being a suspect, was not yet charged with any offence, the Judge held that it is impracticable for the ICAC officer to set out the particulars of the alleged offence at this stage except for a brief oral description on the allegation against the Applicant upon gaining entry to the premises. It is also impracticable for the search warrant to specify the particular materials to be searched given the stage of investigation, save for a general scope of materials which are or contain evidence of the alleged offences. The Judge further highlighted on the fact that the Applicant’s response at the time the warrant and oral explanation were given to him showed that he was fully aware of the necessary details of the alleged offence.


Other grounds of challenge

In addition to challenging the contents of the search warrant, the Applicant raised a number of complaints. For instance, the Applicant complained that (i) he should be entitled to read the information laid before the magistrate in support of the warrant application; (ii) he should be informed of whether the investigation was ongoing or completed; and (iii) the officer who executed the search warrant failed to exhibit her ICAC officer warrant card. However, the above arguments were all dismissed by the Judge after considering the coverage of the public interest immunity and assessing the relevant provisions of the POBO.

Having dismissed all grounds of challenge relied upon by the Applicant, the Judge ruled that the warrant is lawful and refused leave for judicial review on the basis that the case is not reasonably arguable and has no realistic prospect of success.


Takeaways

The Court of First Instance in the case of Y v The Commissioner of the Independent Commission Against Corruption gave a very useful guideline on the type of information that is required to be included in a search warrant by summarising the relevant principles from the case authorities. The judgement not only has an impact on the interpretation of section 17(1A) of POBO but potentially also on other legislations that do not require any particular form for a warrant. The recent cases concerning the search and investigation powers of the ICAC and the Police show that it is not easy to challenge the exercise of such powers.




For enquiries, please contact our Litigation & Dispute Resolution Department:

E: criminal@onc.hk                                                          T: (852) 2810 1212
W:
www.onc.hk                                                                F: (852) 2804 6311

19th Floor, Three Exchange Square, 8 Connaught Place, Central, Hong Kong

Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.

Published by ONC Lawyers © 2020


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