Search Warrants & Supporting Material – Time for a Change?

By their nature, search warrants are deeply intrusive, and represent a gross interference with privacy and family life. They inevitably cause reputational damage, and result in the seizure and examination of material and information which is personally and/or commercially sensitive. The intrusive search process takes place, irrespective of where the truth, or otherwise, of the original criminal or regulatory complaint ultimately lies.

With search warrants being issued by a range of Hong Kong investigative bodies, it is by no means unusual for an individual or entity affected by the execution of a search warrant to seek advice as to the legitimacy of the warrant and the process, in circumstances where there are already civil proceedings in operation – and where another party may have made a criminal or regulatory complaint against the affected individual/entity, either freestanding of the civil proceedings, or perhaps for the purposes of leverage in those proceedings. In those circumstances, how far is open to the person affected to challenge the search warrant – not just on the face of the warrant itself, but also in terms of what the issuing court may or may not have been told at the time the application for the warrant was heard?

The context

Article 29 of the Basic Law and Article 14 of the Bill of Rights protects Hong Kong residents from arbitrary or unlawful interference with privacy, family, home or correspondence. Accordingly, the Hong Kong Courts have adopted an approach that recognises the proportionality of applications for search warrants, in an evolving and ever changing factual landscape, so as to ensure that proper safeguards are in place to protect individuals/entities in terms of sensitive information and the right to privacy.

Additionally, it is long established that a warrant will be considered invalid and will be quashed where, for example: the terms are too widely drawn, or are too vague or imprecise, or the offence or offences are not properly specified; where the applicant is not lawfully entitled to make the application, or where the warrant is not executed within the stipulated time period. All such errors or omissions are, of course, transparent on the face of the warrant – allowing proper challenge to be made in that respect.

However, what if there is a suspicion that the information/affirmation underlying the warrant (ie that supplied to the court considering the application) is itself inaccurate, or omits important information which would have been material to the court’s decision-making process? And it is suspected that such deficiency may be as a direct result of the actions of the party making the criminal or regulatory complaint? In those circumstances, should the person/entity affected be entitled to see all the material supplied to the court that granted the warrant, in order at that stage to be able to challenge the warrant – and thus to seek the immediate return of the seized material, and make any claim for damages?

The current position

At present, the answer in Hong Kong is “no”. In Apple Daily Apple Daily Ltd v ICAC [2000], the Court of Appeal held that there is a presumption that public interest immunity attaches automatically to the entirety of the affirmation/material supplied to the court as a class of documents, rather than just to specific parts of the information contained therein. The affirmation and supporting material is therefore not prima facie disclosable to the affected person/entity – and the default position appears to preserve that status throughout the life of the investigation/proceedings.

In the current climate, however, is such blanket non-disclosure proportionate? In the UK, the position is now very different. In R v Haralambous [2018] UK SC1, the Supreme Court confirmed the approach to be taken in such circumstances:

• The initial application for the search warrant is made by the investigating authority ex parte, as before.
• The warrant is subsequently executed.
• Applications for disclosure of the information/material supporting the application for the warrant are then made by the party affected, initially to the investigative authority.
• Copies, or redacted copies, of that material are to be made available by the investigating authority to the applicant, wherever possible.
• In the event of non-disclosure/inadequate disclosure – an application is to be made by the affected party to the court who originally granted the application.

If an application is made to the court by the affected party for disclosure, then;

• The court will consider submissions made by the parties (at times in the absence of the applicant, if considered necessary).
• The parties are at liberty to make such representations as they deem appropriate.
• The court is then in a proper position to make a balanced and proportionate evaluation as to the extent to which, if any, the information/material is required to be disclosed to the affected party (including by redacting the material if necessary).

The mechanics of the above process are now also mirrored in the UK Criminal Procedure Rules 5.7.

Going forward

The Hong Kong case of Apple Daily Ltd is now nearly 20 years old, and was decided at the time by reference to authorities arising largely from the UK (and other European) jurisdiction/s. However, as set out above, the position in the UK has now moved on considerably.

Accordingly, it is now at least arguable that a similar change in Hong Kong would be consistent with the manner in which the Court’s approach to search warrants has evolved in terms of proportionality and transparency. Such a change would not in any way reduce the protection for information which is clearly sensitive (i.e. the identity of an informant), but it would remove the automatic claim to immunity for the affirmation/supporting material as a whole. That would potentially make a huge difference in cases that involve a commercial history, such as a dispute between competing companies/businesses, or between shareholders of a particular company – and would allow greater scrutiny in the first instance of the information provided to the court. In turn, that closer scrutiny would afford the affected party the opportunity to challenge the warrant, if so advised, in the terms already referred to.

In summary, such applications for disclosure are likely to be fact specific on a case by case basis. In the UK, the procedure has led to the quashing of search warrants in a number of cases, most noticeably those involving high profile individuals/entities. Conversely, however, the increased scrutiny of the application process has also had the effect of affording additional protection to the Law Enforcement Agencies. In short, therefore, a highly valuable development in this area of the law.

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