In characteristic ICAC style, it all began suddenly, at the crack of dawn. Two prominent criminal lawyers, the chairman of a publicly listed company, a solicitor's clerk and two others were arrested. Dozens of journalists were taken in for questioning after raids on seven newspaper offices - including the South China Morning Post - and a journalist's home. So began a saga that dominated the front pages of newspapers long after the suspects were released. A tearful press conference and a rare emergency meeting of the watchdog Independent Commission Against Corruption Operations Review Committee ensued. Anger at the raids spiralled into calls for the anti-corruption body's 'draconian' and 'sweeping' powers to be curtailed. Calls emerged for a human rights commission to monitor the potent body. Conspiracy theories abounded about the ICAC's motive in conducting the investigation. Andrew Lam Ping-cheung, the solicitor who was arrested and later released on a non-prejudicial basis, a former ICAC officer himself, said at an emotional press conference that the body had a vendetta against him. Barrister Kevin Egan told how he had made a tongue-in-cheek comment as he was being arrested that: 'This is payback time for all the grief I have caused you in the past.' Media groups, lawmakers and non-governmental organisations (NGOs) expressed outrage at what they termed an unnecessary foray into the fundamental freedom of the press by the law enforcement agency. International concern also poured in from places like the American State Department and the US Consulate in Hong Kong, as well as global NGOs like the International Federation of Journalists. The Hong Kong Journalists' Association chairwoman Cheung Ping-ling perhaps summed up the sentiment well enough on the day of the raids when she said: 'If they wanted information, they could have just called the newspapers and asked.' But the ICAC had instead gone the route of obtaining warrants for the search and seizure of journalistic materials, using a power it had exercised only three times in the nine years that the legislation had been in force. The ICAC continued to insist a crime had been committed and it was well within its rights to investigate. Head of operations Daniel Li Ming-chak told the Post in an interview at the height of the outrage that: 'Each case is judged on its merits. Certainly in a similar case, we would go down the same [legal] path if a warrant was justified. There could be other options.' A balance had been struck between its prerogative to investigate crimes and the freedom of the press, he said. A majority of the Operations Review Committee vindicated the body, with one member reserving her views. Even so, Mr Li held back-to-back meetings with every media organisation in the territory, as well as the Law Society. ICAC Commissioner Raymond Wong Hong-chiu had to cut short a family holiday to return to the helm and handle perhaps the most heated confrontation in history between the anti-graft body and the territory's press. The Court of First Instance agreed with Ms Cheung, ruling in favour of Sing Tao newspaper, which sought and got the search warrant set aside. Mr Justice Michael Hartmann ruled the ICAC was wrong 'in fact and in law' and his judgment was hailed a victory for freedom of the press. But then the anti-corruption body appealed. In a statement on the day it lodged the appeal, it said it merely sought a clarification of the law. 'We believe a further ruling would provide clearer guidelines for law enforcement agencies to follow in future,' it said. The Court of Appeal judgment delivered earlier this month provides anything but this clarity, with a number of legal experts left confused in its wake. While the court dismissed the ICAC's appeal on the grounds that it did not have the jurisdiction to handle it, the three judges went on at length to stress that had they the power, they would rule in favour of the graft busters. 'The issuing of the search warrants by [Mr Justice William Stone] was entirely justified,' Chief Judge Geoffrey Ma Tao-li wrote. 'I am satisfied that the ICAC acted entirely lawfully in seeking the search warrants in this case. They did no more and no less than they were entitled by law to do.' Each party was ordered to bear its own costs as, even though the appeal was dismissed, the judges were not satisfied on the merits. The judgment left Sing Tao unable to claim victory even though the search warrants remained set aside. The newspaper was also, in the opinion of several lawyers, unable to appeal the decision on the merits, given that it had technically won the case. Lawyers and legal academics disagree on whether it was appropriate for Chief Judge Ma, Mr Justice Michael Stuart-Moore and Mr Justice Frank Stock to make the extensive 'obiter' comments on the merits of the case after themselves admitting they did not have the jurisdiction to rule on it. City University law lecturer C. Raj Kumar said the court should have either assumed jurisdiction and approached the problem 'head-on' or it should not have made comments on the merits at all - even though it had the right to do so. 'Obviously, this is not the best way to deal with such an important issue concerning freedom of the media and human rights,' Mr Kumar said. 'The observations of the Court of Appeal on merits of the case and in particular the decision of Justice Hartmann, particularly when they have said that they do not have jurisdiction, are unnecessary and could have been avoided.' Mr Kumar said the obiter comments, while not legally binding, would have 'persuasive value' in future cases and there was a need for the law to be settled more clearly. But University of Hong Kong associate law professor Simon Young said he thought it was generally positive that the court went ahead to examine the merits of the case, despite finding it did not have the jurisdiction. 'So often you find courts trying to find all kinds of ways to shirk from tough legal questions of public importance,' he said. 'While it's true the merits discussion will have no direct legal effect, the reality is that this analysis is extremely useful if the case goes on appeal to the Court of Final Appeal [CFA]. So this kind of obiter reflection not only pays respect to the full arguments of counsel on the issues, but can also further the development of the law, which in a small jurisdiction like Hong Kong is a good thing.' Professor Young agreed it was 'kind of a funny situation' from a legal standpoint. 'Hartmann J's decision should be treated as a nullity because he did not have jurisdiction to make it,' Professor Young said. 'But we only know this because of the Court of Appeal's decision, which, on this point, was given in obiter and of no binding force on the parties.' He said it would take a CFA hearing to settle the jurisdictional and substantive issues once and for all, but that for now, Mr Justice Hartmann's decision must stand. 'Overall, the decision clearly signals a problem with law. It seems unthinkable that such an important search and seizure power would be unreviewable by the lower courts and would need to go to the CFA,' he said. 'The general principle should be that an ex parte (single party appearance) order should be followed by an interpartes hearing (where all parties concerned are present) before the same court. It then should make its way up to the CFA in the usual manner. I think legislative intervention is going to be inevitable.' Fellow HKU law professor Benny Tai Yiu-ting agreed that the Court of Appeal comments were appropriate, but said he believed the ruling effectively overturned Mr Justice Hartmann's judgment. 'The law is clear to the extent that the strict wording of the statute has to be applied and there is no need to give any priority to freedom of press and judicial discretion should tilt more to the need of investigation,' he said. But barrister and legal sector legislator Margaret Ng Ngoi-yee said the ruling was 'very confusing and very unfortunate', echoing Mr Kumar's view that a matter of such public concern must be dealt with more precisely. 'The only solution is for the ICAC to go to the CFA and get it cleared up,' she said. 'Otherwise we are left with a great impression that the ICAC was right and Sing Tao was wrong, even though it won.' A legal source said the fundamental unfairness of the decision was that although Sing Tao had 'lost' on the merits, it could not appeal. The newspaper could appeal on costs but that would be too narrow an appeal that may not deal with the merits of the case at all. Another legal source countered that the Court of Appeal had expressed the law in 'clear and unequivocal terms' on the approach to be taken in using the powers to obtain search warrants for journalistic materials. Mr Lam, still incensed by his arrest, questioned whether it was appropriate for Mr Justice Stock, who was himself the complainant to the Department of Justice, to handle the ICAC's appeal against Sing Tao as well. 'I wonder, by that constitution, whether or not they are a suitable tribunal in hearing the appeal,' he said. Lawyers for Sing Tao, however, did not think that was an issue. Mr Kumar suggested that one lesson to be learned from the whole fiasco was that Hong Kong needed to seriously think about establishing an Independent Human Rights Commission to monitor possible threats to human rights, including the ICAC's use of its powers. 'The courts alone may not be able to handle all the issues,' he said. The Hong Kong Journalists Association was also concerned the judgment may have reinforced law enforcement agencies' power to search and seize journalistic materials. It has called for a review of the 'lax' ordinance which grants 'broad powers to law enforcement agencies', but 'provides insufficient protection to freedom of the press'. Under the ordinance, law enforcement bodies can apply for a warrant to search and seize journalistic material if there are reasonable grounds to believe that an arrestable offence has been committed, but the association believes these should only be granted in 'extreme cases or in serious arrestable offences'. The group is drafting the proposed amendments for legislators' consideration. The ICAC, while it has not yet decided whether to lodge an appeal, is unlikely to do so. A spokeswoman said the body would certainly draw lessons from the whole saga, not just the Court of Appeal's endorsement of its decision to seek a search warrant. 'It is our real intent to step up communications with the media and try to understand each other's stances better,' she said. 'We will follow the law - if the law changes, as some organisations are proposing, we will follow it just as well. But this is a decision for the entire community. 'The commission will always exercise utmost caution in considering any application for search warrants in relation to journalistic materials.'
