Graft operation invokes rarely used powers
The provisions under Section 85 of the Interpretation and General Clauses Ordinance on search and seizure of journalistic materials by law enforcement agencies have only been used three times in the nine years the legislation has been in force.
The powers were first used in 1999, to obtain materials against an Apple Daily journalist accused of bribing two police communications officers for information. An outcry followed and a lengthy legal battle was fought in the Court of First Instance and all the way up to the highest court to prevent the ICAC from accessing the materials seized. But judges in all three courts sided with the ICAC and the three men were prosecuted and convicted in May 2000.
The second time the anti-graft body invoked the controversial powers was when a reporter for Sudden Weekly last year bribed a caretaker into allowing him access to photograph the secretive filming of Wong Kar-wai's 2046. The ICAC produced four search warrants at Next Media headquarters in Tseung Kwan O and secured the conviction of both reporter and caretaker. This time there was no outcry.
The decision in July to use its powers was to investigate the source of the leaked identity of a woman in the Witness Protection Programme. The woman was arrested in relation to an investigation of listed company Semtech International Holdings, and eight other people on July 9 over alleged payments of more than $1.5 million to bankers and analysts to manipulate Semtech's share price.
She was said to be helping the ICAC on the fraud investigation when a Habeas Corpus writ was filed on her behalf, claiming she was being illegally detained by the anti-graft body. Barrister Kevin Egan represented her in court on the instructions of her 'business partner', but Mr Justice Michael Hartmann of the Court of First Instance ruled in a closed-door hearing that she was not being illegally detained.
Several newspapers reported the matter - revealing the woman's identity. Court of Appeal judges - including Mr Justice Frank Stock - expressed serious concern about the publication of the identity and referred the matter to the Department of Justice.
Suspecting foul play and that the media may have 'unwittingly' been used to pervert the course of justice by revealing a protected witness's name, the ICAC obtained 14 search warrants for newspaper offices and journalists' homes in a 'robust and lengthy' ex parte hearing (with only the ICAC present) before Mr Justice William Stone. Mr Egan and solicitor Andrew Lam Ping-cheung were arrested along with four others, and the raids followed.
