It can be annoying when the police appear at your door and present you a search warrant early in the morning. Can we oppose these search warrants? This article discusses the possibility of challenging the validity of warrants.

The Power to Issue Warrants

Search warrants may be issued by the magistrate under various statutes. Section 50(7) of the Police Force Ordinance states that when a magistrate is satisfied on sworn information that an offence has been committed or is reasonably suspected to have been committed, the magistrate may issue a search warrant empowering any police officer, to enter, search and seize in any building and place, documents and articles likely to be of value to the investigation of that offence.

Under section 10B of the Independent Commission Against Corruption Ordinance (the “ICACO”), a magistrate has a similar power to issue a search warrant if he is satisfied 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.

On the other hand, section 191 of the Securities and Futures Ordinance states that if a magistrate is satisfied on information on oath that there are reasonable grounds to suspect that there is, or is likely to be, on premises specified in the information any record or document which may be required to be produced under Part VIII, the magistrate may issue a warrant authorizing a person specified in the warrant, a police officer, and such other persons as may be necessary to assist in the execution of the warrant to enter premises, by force if necessary, and to search for, seize and remove records or documents.

Warrants Lacking in Specificity?

In Chan Kam Ching John Barry v Commissioner of Police [2014] 4 HKLRD 263 (the “Chan Kam Ching case”), the applicant challenged the issue of search warrants under section 50(7) of the Police Force Ordinance. The Court of First Instance held that a warrant is valid when it is issued by the proper authorities. A warrant must be directed to proper people and clearly identify the place to be searched. The articles seized must be sufficiently indicated. The offence must also be adequately revealed. The statute only requires a magistrate to be satisfied that an offence has been committed or reasonably suspected to have been committed. Whether there should be extra conditions to restrict the scope of the warrant is within the implied power of the magistrate. The lack of conditions would not affect the validity of a warrant.

In Philip KH Wong, Kennedy YH Wong & Co v Commissioner of Independent Commission Against Corruption (No 2) [2009] 5 HKLRD 379, the applicant challenged the validity of a search warrant issued under section 10B of the ICACO to search a firm of solicitors' premises for documents belonging to a client allegedly used as a conduit for the proceeds of corruption. The magistrate was given an undertaking that any material seized from the applicant for which legal professional privilege was claimed would be sealed for seven days thereafter so that proceedings to establish a claim of privilege could be brought.  The applicant contended that such undertaking should have been endorsed on the warrant.  The court held that, since such requirement was not prescribed by the ICACO or recognized by implication, the warrant was still valid.

In Re Messrs Ip and Willis (application for leave to apply for judicial review) [1990] 1 HKLR 154, the court invalidated the warrant issued under section 10 of the ICACO because the warrant only recited that the magistrate has reason to believe that “there may be anything referred to in s.10 of ICACO” in the solicitor's premises. Since there are considerable offences included under section 10(5) of the ICACO, the warrant did not specify which offence. The warrant also did not indicate adequately the class of materials to be searched.

Objecting Seizure on grounds of Legal Professional Privilege?

In the Chan Kam Ching case, the court stated that the legal adviser must not be compelled to disclose confidential communications with the client which (1) are for the purpose of giving legal advice or (2) are made in the course of litigation or in the contemplation of litigation. However, privileged documents are still subject to seizure if their contents were made in the course of a criminal purpose.

In R v Inner London Crown Court, ex p Baines & Baines (A Firm) [1988] QB 579, a production order was applied under the Police and Criminal Evidence Act 1984. The court stated that correspondence concerning financial transactions was communication between solicitors and client which might be privileged. However, the records of the conveyancing transaction itself would not be privileged.

In Citic Pacific Ltd v Secretary for Justice [2012] 2 HKLRD 701, the court discussed the fraud exception in detail.  If a client asks a legal adviser for advice intended to facilitate the client in the commission of a crime or fraud, the communication between the two may not be privileged. A two-stage test is applied: (1) whether a prima facie case of fraud exists; and (2) whether the document concerned came into existence as part of the fraud.  In other words, such documents can be seized even if they would otherwise have attracted legal professional privilege.

Conclusion

It is not at all easy to challenge the validity of a search warrant, unless, perhaps, the warrant has been badly drafted. Where appropriate, legal privilege may be raised to avoid seizure of documents unless the documents were made in the course of a criminal purpose.