Access to Information :

1
Access to Information Apple Daily v. ICAC
By Vanson Soo and Meiling Wong
2
Parties Involved
3
People involved were allegedly
BENEFITS
Tsang Ping-lam
Lau Kong-kwun
Yeung Kai-hing
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Benefits?
NO!
5

Benefit
for Classified Information
Paid HK120,000 - between 1995 and November 1999
6
Suspected Offence?
S4 of the Prevention of Bribery Ordinance (Cap
201)
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On 25 November 1999, the Commissioner of the
ICAC applied
2 WARRANTS
POBO warrant
From Gall J
IGCO warrant
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The Two Warrants
POBO warrant - Under S17 (1) of the Prevention of
Bribery Ordinance (Cap 201) provided the power
to search premises and made no reference to any
power of seizure
IGCO warrant under S85 of the Interpretation of
General Clauses Ordinance (Cap 1) authorises a
search and seizure of journalistic materials
9
Note
ICAC Ordinance S10C authorises ICAC officers to
seize and retain any documents or materials
which were believed to be or to contain evidence
of any of the offences referred to in S10
10
On 29 November 1999, officers of the ICAC
at the premises of Apple Daily
executed the search warrants
seized various documents and materials
11
In the evening of that day,
Gall J
applied to
2 WARRANTS
to discharge
12
The judge directed that the
be retained in locked premises
seized materials
13
Apple Daily then applied under O32 R6 of the
Rules of the High Court to have the .
2 WARRANTS
set aside as
DEFECTIVE
14
The judge
to inspect the affirmation of
Lugar- Mawson J refused permission for
set aside the
2 WARRANTS
15
So
appeals to the
Court of Appeal
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The Appeal of Apple Daily
? The entry into and search of the premises was
unlawful Arguing POBO did not specify any
authority to seize journalistic materials ? The
seizure and detention of the materials found on
those premises was unlawful Arguing IGCO
warrant valid provided that there were
reasonable grounds for believing the premises
contained evidence
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The Court Argued that the
2 WARRANTS
were prima facie essentially and formally valid
18
The Court Argued that the
provisions judge name of officers
premises targeted purpose of search
.. provisions
2 WARRANTS
stated clearly the provisions pursuant to which
the applications were made and authorised to
conduct the operation, disclosed the premises
which were to be searched and the purpose of the
search.
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The Court was determined that the

• S85 (3) warrant as issued expressly authorises
  the seizure and retention of journalistic
  materials.
• various conditions laid down in Part XII of the
  IGCO had been met.
• law does not required the warrant to recite the
  further fact that the officers, having lawfully
  gained entry, proposed to exercise their power of
  seizure under s10c(1) (C ).
• - judge could not have been ignorant of the fact
  that the officers had such power.

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The Court was also determined that

• the affirmation was exempted from inspection
  because it was used in support for the
  application under s17(1A) of the POBO
• the need to see the documents so as to obtain
  informed advice about a persons legal position
  or to enable an informed decision were not
  grounds which could be relied upon to disapply
• therefore, while the investigation continued,
  the affirmation of the ICAC officer fell within
  one of the classes of documents to which the
  public interest immunity attached and could not
  be inspected by Apple Daily or its advisers

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The Appeal Committee of the Court of Final
Appeal

• the Court of Appeal came to a correct view
• the contrary was not arguable
• the IGCO warrant as issued expressly authorised
  the
• seizure and retention of journalistic materials
  the
• various conditions had been met
• plainly unsound to allege that the judge could
  not
• have authorised by that warrant the seizure and
• detention of journalistic materials

22
Now
threat to Media?
The 1st warrant authorised the officer to enter
and search the premises but did not specify any
authority to seize journalistic materials. The
2nd warrant allowed the entry of premises and
search and seizure of journalistic materials,
provided that there were reasonable grounds
for believing the premises contained evidence.
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Mistake in the first warrant?
Court of Appeal
there was merely trivial excess of power,
which caused little or no prejudice.
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The Court concluded that
though section 17A of the POBO was a wrong
provision to rely on, the ICAC officer always
had the power to search for and detain evidence
which he had reason to believe to be connected
with the investigation under section 10 of the
ICAC Ordinance
25
The Court concluded that
the distinction between two standards concerning
the materials that the ICAC officers could
seize was rhetorically different but
practically the same
26
In the Courts opinion
unless the officers could get hold of the
materials it was not possible to distinguish the
two standards of having reasons to believe
and materials likely to be relevant.
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Whats left for the Press?
28
Is press immunity from search and seizure of
journalistic materials being PROTECTED?