Apple Daily v ICAC

1
Apple Daily v ICAC

• Nicole Kwan
• Media Law Class Presentation
• October 29, 2002

2
Background

• Apple Daily published detailed reports of crime
  cases
• Police suspected information leaks and reported
  to ICAC
• Nov 29,1999, 30 ICAC staff entered and searched
  Apple Daily premises, seized journalistic
  materials, computers
• ICAC arrested one Apple Daily reporter
• Reporter (Lau) charged with paying 12,000 to 2
  police communications officers (Tsang, Yeung) per
  month during 1997-99 (totaled 308,000)
• All parties found guilty and sentenced (May 2000)

3
Apple Daily reported ICAC searchDecember 1, 1999
4
ICAC searched Apple DailyNovember 29, 1999
5
Legal timeline Nov 1999 Jan 2000

• Nov 25 ICAC applied for warrants (Gall, Court of
  First Instance)
• Nov 29 ICAC entered Next Media Group building
• Apple applied to Gall for interim injunction
• Nov 30 Gall refused extension of injunction,
• Dec 1 Court of Appeal allowed extension
• Apple applied to set aside warrant
• Dec 13 Court of First Instance (Lugar-Mawson)
• refused inspection of affirmation, dismissed
  case
• Jan 21 Court of Appeal dismissed Apples appeal
• Jan 28 Appeal Committee of CFA refused leave to
  appeal

6
Warrants

• Two warrants
• POBO warrant under s 17(1) Prevention of Bribery
  Ordinance
• Authorizes entry and search of premise
• Also authorizes seizure
• IGCO warrant under s 85(3) Interpretation of
  General Clauses Ordinance (Cap 1)
• Search and seizure of journalistic materials

7
Apple challenges warrants

• Apple claims warrants invalid, applies for them
  to be set aside
• POBO warrant should have been issued under s
  17(1A)
• POBO s 17 makes no reference to seizure, court
  had no power to authorize it
• Warrants authorize officers to seize materials
  which are likely to be relevant to the
  investigation
• wider scope than actual power under 10C ICAC
  ordinance ICAC officer can seize anything that
  he has reason to belief to be or contains
  evidence
• Apple wants to inspect affirmation made by ICAC
  officer in applying for warrant

8
Court of Appeal

• Guiding principle to examine a warrant that is
  being challenged
• Warrant erodes citizens rights, must be
  justified by law
• Court has constitutional duty to supervise the
  exercise of power in issuing warrant and its
  execution
• Court to determine validity of statute which
  empowers the issue of the warrant, and adopt
  strict construction. Any doubt to be resolved in
  favor of citizens.
• Court must balance public interest (in crime
  detection) ag. Protection of citizens rights and
  privacy.

9
Court of Appeal dismisses Apples appeal

• Warrants not invalid
• (IRC v Rossminster, AG of Jamaica v Williams)
• POBO warrant
• Referral to s 17(1) only a drafting mistake
• Power to seize and detain conferred upon certain
  ICAC officers by another source 10C ICAC
  ordinance
• Officer who led search showed Apples solicitor
  his warrant card with power of seizure printed
  on the back
• no prejudice caused to persons affected
• Warrants wider scope to seize materials not an
  issue --
• In practice, ICAC officers can only seize
  whatever they think may assist them in
  determining whether an offence has been committed
  or who committed it.
• Cannot expect officers to make snap judgement.
  Not everything seized will be evidence per se.

10
Court of Appeal dismisses Apples
appeal(continued)

• Affirmation not for inspection
• Public interest immunity
• Order 119 of Rules of High Court applies to
  applications under Pt III of POBO (contains
  s17(1A)), r 5 provides for
• Any affidavit, information, documents relating to
  the application shall be treated as confidential,
  placed in packet and sealed by judge hearing the
  application
• Packet kept under custody of court, not to be
  opened except by order of a judge
• To be kept confidential in order to preserve the
  integrity of the investigation (High Court)
• Court can disapply rule, but clarifying the
  appellants legal position is not a good enough
  reason

11
Search and seizure of journalistic materials

• Part XII of Interpretation and General Clauses
  Ordinance (IGCO) added in 1995
• Recognizes two conflicting interests
• Free and independent press as public watchdog
• Law enforcement needs in exceptional cases to
  seize journalistic materials
• Requires balance to be weighed by judge of the
  Court of First Instance or District Court

12
Search and seizure of journalistic materials
(continued)

• S 83 Pt XII IGCO (governing provision)
• Prevents entry, search and seizure re
  journalistic materials unless there is an express
  statutory provision permitting the issue of such
  a warrant.
• S 85(3) (permits issuing warrant and power to
  seize) constrained by s 85(4)
• Power to seize cannot be wider than that granted
  by underlying ordinance, i.e. ICAC Ordinance
• Seize and detain anything ICAC officers had
  reason to believe to be or to contain evidence of
  any of the offences referred to in s 10 of ICACO

13
Search and seizure of journalistic materials
(continued)

• Conditions for issuing warrant
• Application to be made by person with power to
  search and seize under ordinance i.e. ICAC 10C
• Application approved by directorate disciplined
  officer
• Judge has reasonable grounds to believe
  arrestable offence was committed and journalistic
  materials likely to provide (1) substantial
  value to investigation, or (2) relevant evidence
  in proceedings
• Other methods of obtaining materials tried and
  failed, or would prejudice the investigation
• Judge has reasonable grounds for it to be in the
  public interest
• Judge to be satisfied not practicable to
  communicate with anyone with access or can grant
  access or servicing notice to ask for access to
  materials will prejudice the investigation

14
Public interest immunity

• Information to be kept confidential (until case
  over). Otherwise suspect will know evidence or
  identities of persons giving information against
  him. This will thwart the investigation.
• criminals today are highly intelligentThere
  should be no disclosure of anything which might
  giver useful information to those who organize
  criminal activities (Conway v Rimmer)
• Immunity extended to disclosure of information
  used in applying for search warrants
  (Rossminster)

15
Public interest immunity (continued)

• It would plainly not be in the public interest
  for the grounds of the officers suspicions to be
  disclosed while the investigation is in progress
  
• But there is no need for the same
  confidentiality in the privacy of the justices
  room. (Williams)
• O 63 r 4 of the Rules of the High Court gives
  public the right to inspect documents filed in
  High Court Registry
• subject to public interest immunity (Keith)

16
Proposed investigation powers under Article 23

• Emergency entry, search and seizure power for
  police investigating some Article 23 offences
• Power to be exercised by sufficiently senior
  police officer (e.g. superintendent) when he
  believes
• Relevant offence has been or is being committed
• Need to take immediate action to secure evidence
  of substantial value, otherwise investigation
  will be seriously prejudiced
• Regina Ip says this does not extend to
  journalistic materials