An embarrassment that warrants explanation

PUBLISHED : Monday, 09 May, 2005, 12:00am
UPDATED : Monday, 09 May, 2005, 12:00am

The full facts behind the unprecedented bid by the police to search offices of the Legal Aid Department are not yet known. We can expect more to emerge when the dispute is resolved by a court.

But the details revealed in the Legal Aid Department's application for a judicial review have focused attention back on the manner in which Hong Kong's law enforcement agencies go about conducting their investigations.

Last year, there was an outcry over the heavy-handed manner in which the Independent Commission Against Corruption raided newspaper offices at a time of concern in the community about threats to the freedom of the press. The courts were then asked to consider the validity of the ICAC's search warrant and the case ended rather inconclusively.

Now, a police search warrant is being challenged. And this time the litigant is the government department responsible for representing people who cannot afford their own lawyer. It is a very unusual case.

According to the Legal Aid Department's application, the offices of its criminal section were the subject of an attempted police raid on two occasions. The police were apparently seeking documents which they believed could provide key evidence in a criminal case.

But the documents concerned were provided by the suspect to his lawyers and would normally be regarded as confidential. They are arguably covered by legal profession privilege, a very important principle protecting the privacy of communications between lawyer and client.

Whether or not the documents concerned fell within a permitted exception to this rule is a matter for the courts to decide. But the application states that neither of the two search warrants granted by magistrates dealt with this issue. It also alleges that the warrants were too vague.

The refusal of legal-aid staff to permit the entry of the police is therefore understandable. The first warrant appears to have sought to give police officers access to the entire 25th floor of a building where there would have been a great deal of material relating to many different defence cases. The Legal Aid Department was justifiably concerned.

Everything has now been put on hold until the courts have an opportunity to sort out this dispute between the two government departments.

There is a tension between the safeguarding of legal professional privilege and the investigation of crime. The same applies to striking the right balance between the rights of law enforcement agencies and the freedom of the press.

The raiding of the Legal Aid Department's offices is a sensitive matter. This is, no doubt, why it has never happened before. The court will resolve the legal issues concerned. But the public is entitled to a full explanation of how this rather embarrassing situation arose.