5 May 2020
Introduction
In our last update issued on 2 April 2020 (see here) we discussed the recent judgment of the Honorable Mr Justice Chow which dismissed challenges to the Securities and Futures Commission’s investigatory powers and search warrants to search and seize digital devices.
Continuing on the theme of search warrants, this update looks at two other recent High Court Judgments which considered:
(i) The lack of information in an Independent Commission Against Corruption search warrant issued under the Prevention of Bribery Ordinance (“POBO”); and
(ii) Whether a third party with a sufficient interest in the search or documents seized has a free standing right to the disclosure of a Hong Kong Police search warrant issued under the Police Force Ordinance (“PFO”).
As detailed below, both of the law enforcement bodies were successful in dismissing the challenges made against them.
“Y” v COMMISSIONER OF THE INDEPENDENT COMMISSION AGAINST CORRUPTION [2020] HKCFI 161.
Background
On 28 August 2018, Y’s home was searched by officers of the ICAC under a warrant granted by a Magistrate pursuant to section 17(1A) of POBO which provides:
‘Where … the court is satisfied that there is reasonable cause to believe that in any premises or place there is anything which is or contains evidence of an offence under this Ordinance, the court may by warrant directed to an investigating officer named in the warrant, empower such officer and any other investigating officer, to enter such premises or place, by force if necessary, to search the same.’
The warrant: (i) stated a Magistrate held reasonable cause to believe there were materials which contained evidence of ‘offering an advantage and accepting an advantage by a public servant’ 1 ; and (ii) empowered officers to search the following:
‘…reports, correspondence records, accounts records, bank records, mobile phones, computers, documents or data processed or stored in a computers or electronic devices.’
Six items in total were seized including notebook computers and mobile phones.
Y alleged the warrant was invalid and the seizure unlawful. Among his complaints which we explain below, he alleged the warrant failed to specify the ‘nature’ of the offence he was suspected of committing.
Nature of the offence: account given at the time by the ICAC was enough
After reviewing the evidence filed, the Judge stated that on gaining entry to Y’s home the investigating officer had given a brief description of the allegations against Y firstly to him and then his legal representatives. Both understood and had no complaint at the time.
Warrant
only needs to state alleged offence While it was complained the offence’s particulars were not set out in the warrant, the Court found according to section 17(1A) POBO a valid warrant only needed to state what the alleged offence was. The warrant was compliant as it had stated the offence was offering and accepting an advantage.
Time frame of the alleged offence needed
The warrant and ICAC were criticized because the time frame of the alleged offence was not included in the warrant, or provided by the ICAC. The Judge stated it was clear Y was aware of the necessary details, further this was not a requirement of section 17(1A) POBO and at the investigatory stage it is often impractical to give such particulars.
Failure to exhibit copy of warrant card
The warrant was criticized because no copy of the investigating officer’s warrant card was exhibited to it. The Judge stated it was sufficient to show the warrant card to Y on entry to his home, which happened.
Further even if it was a requirement to exhibit the warrant card, any non-compliance here caused no prejudice or abuse, so did not invalidate a search.
For further information, please contact:
Mark Reed, Partner, Stephenson Harwood
mark.reed@shlegal.com