Right of appeal invalid in ICAC case, court told
The Court of Appeal does not have the jurisdiction to hear the ICAC's appeal of the High Court judgment setting aside its warrants to search Sing Tao Daily's offices and a reporter's home, the court heard yesterday.
Barrister for Sing Tao, Philip Dykes SC said there was no express provision in Hong Kong law that provided for the right to appeal against the setting aside, given the Independent Commission Against Corruption's lawyers had labelled the proceedings as criminal rather than civil.
Mr Dykes told the Court of Appeal that while Justice Michael Hartmann had the jurisdiction to set aside the warrant, his decision could not be reviewed as there was no right to appeal against the decision.
'Unless a statute specifically confers a right of appeal, there is no appeal,' Mr Dykes told the court. 'You can't have an investigation suspended for three to four months while carrying out appeals from one court to another. There are reasons why decisions at this level are not subject to appeal.'
Mr Justice Hartmann ruled last month that the decision to grant the ICAC warrants for the search and seizure of journalistic materials at the Sing Tao offices was wrong 'in fact and in law'. He set aside the warrant.
The commission obtained the warrants in late July against seven newspapers and several journalists' homes to investigate the leaked identity of a woman in its witness protection programme.
Sing Tao has allowed ICAC officers to look at the material it seized, including documents, files and a laptop computer. As such, Mr Dykes told the court, the appeal was purely academic.
Barrister for the commission, Kevin Zervos SC argued earlier in the day that the appeal rested on one word: 'suspect'.
'The journalists were suspects,' he said, arguing that that point was essential in establishing why the ICAC had to go the route of a search warrant rather than seeking co-operation.
But Mr Dykes countered that 'the highly public spectacle of a search warrant' was not necessary because the targets of the ICAC were not the journalists but rather their sources.
'The target of the ICAC was the source of materials in relation to a conspiracy to pervert the course of justice,' Mr Dykes said.
'The newspapers or journalists were the tools ... they were not suspects.'
Mr Dykes said the ICAC had made it clear that it was not investigating the publication of the witness's name.
The appeal is due to continue on Monday.