Silvio Berlusconi

Court of Final Appeal won't hear challenge over 2007 police search

Top court won't hear appeal on way officers executed a 2007 warrant in a case involving Italian ex-prime minister Silvio Berlusconi

PUBLISHED : Tuesday, 20 November, 2012, 12:00am
UPDATED : Tuesday, 20 November, 2012, 4:25am

The Court of Final Appeal yesterday rejected a judicial challenge against the way a police search was carried out in 2007, in a case involving former Italian prime minister Silvio Berlusconi.

Mr Justice Patrick Chan Siu-oi said the applicant's case was not reasonably arguable, in refusing to grant Paddy Chan Mei-yiu and her company, Harmony Gold, permission to appeal to the top court.

Paddy Chan and her company had claimed that during a search of her premises in January 2007, a search warrant was improperly executed. Two Hong Kong police officers should not have followed instructions from two Italian prosecutors and two Italian KPMG forensic accountants during the search, she said.

The Italians were not named in the search warrant, so they had no authority to help local police officers sift through documents at the Hong Kong company and its directors' offices and homes.

The Italians were in the city to collect information in a case against Berlusconi and others, who were facing allegations of misappropriation of funds, money laundering and fraud. Berlusconi was acquitted.

In asking for leave to appeal yesterday, Gerard McCoy SC, for Chan, said: "This is a challenge based on the need of protection." Hongkongers should be protected from any searches falling outside the scope of a warrant, he said.

McCoy also complained that when Hong Kong prosecutors applied for the search warrant, they did not tell the magistrate that a US court had quashed a similar search warrant on the grounds that it involved legal professional privilege.

"It's a plain situation with a real risk of [legal professional privilege] breach," he said.

Under challenge was the Mutual Legal Assistance in Criminal Matters Ordinance, under which a magistrate can issue a warrant enabling authorised officers to carry out searches at a specified time.

Chan lodged a judicial review in 2007. She lost in the Court of First Instance and again in the Court of Appeal before the top court yesterday refused to allow her to take the case further.

She mounted the legal challenge together with Harmony Gold as well as Wiltshire Trading, CS Secretaries, Loong Po Management and Katherine Hsu May-chun, another Harmony Gold director.

The secretary for justice, commissioner of police and detective senior inspector were named as respondents to the review.

Yesterday's decision was made by Patrick Chan, Mr Justice Roberto Ribeiro and Mr Justice Robert Tang Ching. They will explain their decision in a written judgment to be handed down at a later date.