Anti-graft agency wins court appeal on law firm raid
Graft-busters have won an appeal affirming the validity of a warrant used to raid the offices of a law firm two years ago during investigations into bribery involving jailed Macau minister Ao Man-long.
The judgment was handed down yesterday by Court of Appeal judges Mr Justice Frank Stock, Mr Justice Andrew Cheung Kui-nung and Mr Justice Alan Wright.
This follows an appeal by the Independent Commission Against Corruption over a ruling of Mr Justice John Saunders, in the Court of First Instance, on the judicial review made by the firm Philip K. H. Wong, Kennedy Y. H. Wong & Co.
The firm, in the judicial review, challenged the legality of the search warrant issued by Magistrate Winston Leung Wing-chung in May 2007.
The court heard that the ICAC believed that the firm had been used as an innocent agent to hide Ao's corruption and to launder money.
The warrant was issued under a provision of the Independent Commission Against Corruption Ordinance, at the request of the ICAC.
But the firm argued that the warrant should be rendered invalid as the magistrate failed to impose conditions to protect legal professional privilege - or lawyer-client privilege - when the search was carried out.
In December 2007, Mr Justice Saunders quashed the warrant on the basis that he found the ICAC should have sought the search warrant under the Organised and Serious Crimes Ordinance, owing to the nature of the investigation.
He also said the ICAC must go to the District or High Court for warrants to search offices when investigating organised crime. But the ICAC won an appeal to overturn his ruling in March last year and the Appeal Court sent the case back to Mr Justice Saunders to deal with the absence of conditions on the warrant.
In August last year, Mr Justice Saunders declared the search warrant was invalid and unlawfully issued, but he refused to quash the warrant as he found the search was carried out with proper regard for legal professional privilege. His ruling spurred the appeal from the ICAC.
Mr Justice Stock, delivering the judgment yesterday, said that he found the ICAC Ordinance did not require the imposition of conditions for the execution of a search.
He also said the finding should not undermine a magistrate's power to deal with applications for warrants under any legislation that did not make specific provision for the protection of legal privilege.
'I would hope that the importance of the issues raised by the spectre of searches at solicitors' premises will soon be recognised as sufficient to justify legislation or protocols, where legislation is not already provided,' he said.
In their judgment, the judges indicated that counsel would make further submissions on how to identify the privileged materials seized.
