Press Summary (English)

Press Summary (Chinese)

HCAL 2643/2019

[2019] HKCFI 3048

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2643 OF 2019

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J U D G M E N T

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Introduction

1.  The police have pursuant to a search warrant issued by a magistrate obtained from a hospital certain medical records relating to the applicant.  This application for judicial review raises the narrow question of whether the fact that the search warrant has not been produced to the applicant has effectively obstructed her right of access to the courts.

2.  It is appropriate to make clear at the outset that the present application is not about whether the police should have applied for the warrant, or whether the magistrate should have granted the warrant, or whether the warrant should be set aside.

Factual background

3.  On the evening of 11 August 2019, there were, according to the evidence filed, hundreds of violent masked protesters assembled outside the Tsim Sha Tsui Police Station, who were hurling bricks, stones, slingshots and other unknown objects at the police station and the police officers inside.  It is unnecessary for the purposes of the present application to examine what actually happened that evening and, indeed, the court is not equipped with the evidence to do so in these proceedings.

4.  In the midst of it all, at 7:24pm, the applicant, dressed in black and equipped with a helmet, a pair of goggles and a respirator — the typical outfit of some of the participants in similar assemblies, was found in Nathan Road near the junction with Austin Road having suffered injuries to her right eye.  According to her, she was “hit by a suspected bean bag round shot by anti‑riot police”. She was conveyed to Queen Elizabeth Hospital (“Hospital”) for treatment and then admitted into the Hospital.

5.  On 13 August, a Superintendent wrote on behalf of the Commissioner to the Hospital, stating that having regard to the serious nature of the injury, the police was obliged to look into the circumstances of the incident and would like to approach the applicant with a view to ascertaining the facts.  (The police did not know the identity of the applicant at that time and simply referred to “a Chinese female” in relation to that incident.)  The letter stated that with a view to minimising any disruption to her medical treatment, the police would not approach her at that moment, but sought the Hospital’s assistance in forwarding an enclosed letter to her.  That letter, written in Chinese and addressed to whom it might concern, stated that the police wished to understand the personal injury incident in greater detail and asked the addressee to call the specified telephone numbers if she could assist.  The applicant did not contact the police whether via those numbers or otherwise.

6.  On 21 August, the police obtained a search warrant from a magistrate to get the applicant’s personal details from the Hospital (ie date of birth, HKID number, telephone number and address).  This warrant was executed, and the police obtained the information on 27 August.  On 29 August, the police obtained a second search warrant from a magistrate in respect of the medical records in the Hospital in relation to the applicant’s injury sustained on 11 August. Although there are two warrants thus issued, the present application for judicial review concerns the second one, and references to the warrant below should be understood as referring to that warrant.

7.  Also on 29 August, at a police press conference, a Chief Superintendent mentioned that the police had applied or were applying for a search warrant to obtain the applicant’s medical records in question.

8.  On 30 August, the applicant’s solicitors wrote to the Hospital stating that she would not consent to the disclosure of her medical records to any third party including the police, and that the Hospital owed her a duty of confidentiality.  She asked to be provided with, among other things, particulars of any disclosed information and the recipients.

9.  On 2 September, the applicant’s solicitors wrote to the Commissioner (copied to the Hospital), demanding: (1) if the police intended to apply for a warrant, that the applicant be notified of any such application; (2) if the police had obtained the warrant but not yet executed it, that the applicant be informed of the process by which it was obtained and be given a copy of the warrant and that the police refrain from executing the warrant until the applicant had instituted legal proceedings to review the granting of the warrant; and (3) if the police had already obtained and executed the warrant, that the applicant be informed of the manner in which the warrant was obtained and executed and the scope of the medical records obtained, and that the police seal up the records and refrain from further communicating the contents of the records until the resolution of further legal proceedings.

10.  On 2 September, the Hospital replied to the applicant’s letter of 30 August, stating that it had provided to the police her personal details and was also required pursuant to a warrant served by the police to provide the medical records which were pending release as at that date.  The Hospital stated that a search warrant empowered police officers to enter and search for and take possession of the documents covered and that it was obliged to cooperate and comply and did not wish to resist or obstruct police officers in the due execution of their duties.  The Hospital asked the applicant to take up the matter directly with the police and expected to hear from her within the next 7 days.

11.  On 3 September, the applicant’s solicitors wrote again to the Hospital asking it to provide her with a copy of the warrants and the records handed over to the police, and that the Hospital refrain from doing anything beyond lawful compulsion that would be in breach of the applicant’s privacy rights.  The evidence does not show whether there was any response from the Hospital to this letter.

12.  Also on 3 September, the Commissioner issued an interim reply to the applicant’s solicitors, acknowledging receipt of the letter of 2 September and stating that the police were considering the matters raised and seeking legal advice as appropriate and would reply as soon as possible.

13.  The Commissioner’s letter was apparently missed by the applicant’s solicitors, who wrote again on 3 September to the Commissioner, asking for a copy of all the warrants obtained in relation to the personal data of the applicant, stating that the applicant intended to apply to set aside the warrants, and asking the police to refrain from further executing any warrants.

14.  Apparently, as I was told by the Commissioner’s counsel at an earlier hearing on 12 September, the medical records covered by the second warrant were obtained by the police on 4 September, though this was not known to the applicant at the time.

15.  On 6 September, the applicant’s solicitors wrote to the Commissioner, complaining that he had not responded to their previous letters (which is factually incorrect but is, I assume, an honest mistake by the solicitors) and stating that unless the information previously requested be provided, they were instructed to seek relief from the High Court.

16.  In press conferences on 9 and 10 September, in response to questions from the press, a Senior Superintendent disclosed that the police had applied under s 50(7) of the Police Force Ordinance (Cap 232)[1] for search warrants and had obtained the applicant’s medical records from the Hospital.

17.  On 9 September, the applicant lodged a Notice of application for leave to apply for judicial review (Form 86).  An anonymity order was granted by this court.[2] Following an inter partes hearing on 12 September, the applicant was granted leave to apply for judicial review based on her Form 86.[3]  Meanwhile, the Commissioner has voluntarily offered an undertaking to seal up the medical records obtained until the resolution of this judicial review in this court.  The respondent’s evidence in response was filed on 4 October.

Proposed amendment of the application for judicial review

18.  The application for judicial review, for which leave has been given based on the Form 86, seeks to impugn the refusal of the Commissioner to produce to the applicant the warrant.  It is said that this infringes the applicant’s right of access to the courts under Art 35 of the Basic Law.

19.  By summons dated 21 October 2019 and returnable before this court on 4 November 2019 (ie the date of the substantive hearing of the judicial review), the applicant sought leave to amend her Form 86.  One of the amendments proposed was to describe the decision attacked as the Commissioner’s “failure” rather than “refusal” to produce the warrant — to reflect the fact that there had been no actual refusal before proceedings were begun.  This and a few other minor amendments were uncontentious and permitted at the hearing. 

20.  More controversially, however, the applicant also proposed to add a second decision to be reviewed, namely, the Commissioner’s “decision to fully execute the purported warrant to obtain the medical records of the Applicant”, on the ground that it was unfair for the Commissioner to proceed to fully execute the second warrant despite being on notice of the applicant’s intention to oppose the process such as through an application to set aside the warrant.  It was said that the unfairness had been compounded by the Commissioner’s breach of the duty of candour in that the affirmation filed in these proceedings on his behalf failed to explain the circumstances of that decision.  At the hearing I refused to allow these amendments.

21.  This second “decision” appears to relate to the fact that the medical records sought under the second warrant were obtained by the police after 2 September 2019, since the Hospital’s letter of that date indicates the records were still “pending release” then.  The complaint assumes there was such a second decision and alleges that it was wrong for the police to “further execute” the warrant after having received the applicant’s solicitors’ letter dated 2 September 2019.

22.  Such a complaint is fact‑sensitive.  But the details of the events leading to the police obtaining the medical records after 2 September 2019 (when the warrant had already been served on the Hospital) are not clear.  The applicant attributed this to the respondent’s lack of candour, but I do not think this is fair.  The original decision attacked was only the refusal to produce the warrant to the applicant.  Pursuant to this court’s directions, the respondent’s affirmation was filed on 4 October 2019.  The applicant only sought to add a new decision much later, and had never sought leave to apply for judicial review in relation to that decision. It is, to put the position at its lowest, not clear that the duty of candour required the respondent to deal with everything that the applicant now wishes to complain about.  The respondent’s duty of candour is not an “open‑ended concept”: Chu Woan Chyi v Director of Immigration [2009] 6 HKC 77, §14(6).

23.  In any event, the fact is that the respondent had not in his affirmation gone into all the matters that might be relevant to the new decision sought to be challenged, and this is not an application for discovery.  In the circumstances, I did not think that it would be fair to permit the applicant to enlarge the scope of the judicial review at the hearing by a late amendment to which the respondent had not had a proper opportunity to respond.  Accordingly, this application for judicial review must be adjudicated on the basis of the original Form 86 with the few minor amendments allowed at the substantive hearing.

The applicant’s contentions

24.  As stated at the outset, this application for judicial review concerns a narrow question.  The originating summons filed pursuant to leave granted seeks only:

“ A declaration that the Commissioner of Police’s refusal to produce the warrants obtained from the Magistrate for the entry and search of Queen Elizabeth Hospital in relation to the Applicant’s personal data and/or medical records is in breach of Article 35 of the Basic Law and Article 2(3) of the International Covenant on Civil and Political Rights.”[4]

Some of the propositions initially advanced on behalf of the applicant in the Form 86 or in counsel’s skeleton submissions are however, on their face, very wide.  Thus it was said that the Commissioner should have notified the applicant of his intention to apply for a warrant in relation to the medical records so that the applicant could be heard in an inter partes hearing.[5]  At the hearing, however, Mr Robert Pang SC, appearing for the applicant, confirmed that he was not contending for a general rule that prior notice of an application for a search warrant on an institution such as a hospital or a bank should be given to the person whose information is contained in the documents targeted. Nor do I understand the applicant to maintain the proposition found in the Form 86 as a general rule that in such a case, the magistrate should be invited, in the ex parte application for the warrant, to impose conditions for the sealing of those records until an application is made by that person to set aside the warrant.[6]  Likewise, Mr Pang disavowed any general contention that in such a case, having obtained a search warrant, the police are required to notify the person of it before taking steps to execute it so that the person has an opportunity of making an application to set it aside.[7]

25.  What counsel do submit on behalf of the applicant is that when the lawfulness of the police’s seizure of medical records pursuant to a warrant is called into question by a person who has a sufficient interest in the subject matter, that person should be entitled to be shown the warrant.  In that connection, it is contended that, by failing to produce the warrant to the applicant who had made clear her intention to apply to set it aside, the Commissioner has obstructed her from seeking access to the courts and from seeking relief to prevent interference with her privacy rights. 

26.  The position taken on behalf of the applicant is thus one of strict entitlement.  There is no submission advanced for her on the basis that the decision impugned should be quashed because the Commissioner had a discretion which he exercised in a Wednesbury unreasonable manner[8] or without taking into account relevant considerations, and I express no opinion on the merits of such bases.

The respondent’s case

27.  In an affirmation made by a Woman Senior Inspector, the respondent stated that in the afternoon on 11 August 2019, a public meeting was held at Victoria Park which had been notified under the Public Order Ordinance (Cap 245) and not prohibited by the police.  After its conclusion in the evening, however, a significant number of the protesters moved to different places in Tsim Sha Tsui and engaged in the violent activities referred to above and laid siege to the Tsim Sha Tsui Police Station.  The protesters also occupied a sizeable section of Nathan Road, blocking its southbound and northbound carriageways with barriers and various objects.

28.  Police investigation of the incident is still ongoing.  Up to the date of the affirmation, charges had been laid against 17 protesters arrested at Park Lane Shopper’s Boulevard, one of whom for “Taking Part in a Riot” and the others for “Unlawful Assembly”.  The scope of the investigation has been evolving and the major areas of investigation include ascertaining the facts of the unlawful activities, including the time, place and the events that took place; identifying the persons involved; obtaining relevant evidence and preserving evidence of damage and injury caused; and conducting relevant forensic examinations.

29.  The respondent stresses that the revelation at the press conferences in relation to the warrants was made to address the public’s concerns over whether the applicant’s injury had been caused by the police, and did not reflect any change in the police’s position and practice that all information relating to ongoing investigation must be kept strictly confidential to preserve the integrity of the investigation. 

30.  The respondent explains that it is not the practice of the police to disclose to anyone any application for a search warrant or to inform anyone of the execution of any search warrant after its execution.  It is stated that an important element of the integrity of police investigation is that the subject of the criminal investigation or his associates and representatives are not to be informed of the execution of search warrants or of the contents of such warrants, in order to avoid or reduce the risks of the subject of investigation, or his associates and representatives, taking steps to circumvent, obstruct, delay or interfere with the investigation and subsequent prosecution of criminal activities, including but not limited to removal or destruction of evidence or the making of collateral attacks on actions taken by the police whilst the investigation process is still ongoing.  The relevant information of the investigation process (including search warrants) will normally be disclosed as part of the unused materials, should the subject be prosecuted in due course.  If, on the other hand, no prosecution ensues, the confidentiality of the actions taken in the course of investigation will continue to be maintained as a matter of practice.

31.  It is said that the provision of the warrant to the applicant in the present case will prejudice the public interest by compromising the principle and practice of confidentiality and the timeliness and effectiveness of the police’s ongoing investigation into, among other things, the unlawful activities on 11 August 2019.

32.  On behalf of the respondent, Mr Johnny Mok SC submits that an application to set aside a search warrant will only be entertained on limited grounds as held in P v Commissioner of Independent Commission Against Corruption (2007) 10 HKCFAR 293 and that the applicant has not shown how there can be a sustainable set‑aside application on any of those grounds.  He submits that the applicant is not prevented by the non‑disclosure of the warrant from taking legal action if there is a valid basis for doing so, including the making of an application for discovery, whether pre‑action or otherwise, against a defendant or a third party, if she has valid ground to do so.  There is no free‑standing right, whether under Art 35 of the Basic Law or the common law, for anyone to ask the police to disclose documents of any kind relating to ongoing criminal investigation outside of the various existing regimes of document disclosure in legal proceedings.  Nor does a person’s privacy mean that the police are at all times under an obligation to notify an affected person of their intention to apply for a warrant or to produce the warrant on demand (other than for the purpose and in the course of its execution).  He submits that, if the applicant’s contention were correct, it would mean that any potential suspect who had got wind of an investigation would have the right to demand production by the police of all warrants obtained or executed and be able to find out the direction and progress of police investigation.  Such a general rule would be detrimental to the effectiveness of criminal investigation which depends on a strong degree of confidentiality and covertness.

Discussion

33.  Having regard to the submissions made, I find it appropriate to divide my analysis into two aspects: first, whether there is a free‑standing right for the applicant to have the warrant produced to her on demand; and, secondly, whether the non‑production of the warrant to her has infringed her right of access to the courts.

Whether there is a free‑standing right to production of warrant

34.  A warrant is a document issued by a person in authority under power conferred in that behalf authorising the doing of an act which would otherwise be illegal: Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952, 1000A per Lord Wilberforce.  In the case of a search warrant, the act that would otherwise be unlawful without the warrant is the entry and search of the premises in question and the seizure of the targeted articles.  In Hong Kong, there are numerous statutory provisions that confer power on law enforcement agencies to enter and search private premises with and without a search warrant.  A detailed list may be found annexed to the judgment of the Court of Appeal in Keen Lloyd Holdings Ltd v Commissioner of Customs and Excise [2016] 2 HKLRD 1372.

35.  The general provision used by the police, and the provision invoked in the present case, is s 50(7) of the Police Force Ordinance, which provides:

“ Whenever it appears to a magistrate upon the oath of any person that there is reasonable cause to suspect that there is in any building, vessel (not being a ship of war or a ship having the status of a ship of war) or place any newspaper, book or other document, or any portion or extract therefrom, or any other article or chattel which is likely to be of value (whether by itself or together with anything else) to the investigation of any offence that has been committed, or that is reasonably suspected to have been committed or to be about to be committed or to be intended to be committed, such magistrate may by warrant directed to any police officer empower him with such assistants as may be necessary by day or by night–

(a)     to enter and if necessary to break into or forcibly enter such building, vessel or place and to search for and take possession of any such newspaper, book or other document or portion of or extract therefrom or any such other article or chattel which may be found therein …”

36.  The question of production of the warrant in the course of the search is not dealt with in the Police Force Ordinance.  This may be contrasted with the provisions in the Police and Criminal Evidence Act 1984 of the United Kingdom as well as other more modern legislation in Hong Kong.  Sections 16(5)(b)‑(c) and 16(6) of the UK 1984 Act expressly provide that during execution of the search warrant, where the occupier or some other person who appears to be in charge of the premises which are to be entered and searched is present, the constable shall produce the warrant to him and supply him with a copy of it.  Section 86(2) of the Interpretation and General Clauses Ordinance (Cap 1) likewise provides that a person executing a warrant to search for and seize journalistic material shall supply the occupier or person in charge of the premises with a copy of the warrant.

37.  In Hong Kong, in the absence of specific legislation, the requirement for production of the warrant issued under s 50(7) of the Police Force Ordinance upon execution is governed by the common law.  The common law recognises the requirement of an announcement to be made upon execution of a warrant, for the officer “first to signify the cause of his coming”: Semayne’s Case (1604) 5 Co Rep 91a.  Further, the officer who executes the warrant must have it in his possession at the time: see Wah Kie v Cuddy (1914) 20 DLR 351, extending to search warrant the rule applicable to warrant for arrest.  It seems right in principle that the search warrant should be produced upon the search, unless the exigencies of the circumstances require otherwise, such as where production before a search would frustrate the search itself.  It has been said that a search warrant need not be produced unless the occupier asks to see it: Feldman, The Law Relating to Entry, Search & Seizure, §6.24,[9] but the authority cited, Hodges v Marks (1615) Cro Jac 485, concerned a warrant for arrest, and reliance on it in relation to a search warrant seems questionable.  As is stated in the same work by Professor Feldman at §5.02, the production of the search warrant allows the occupier of the premises to be searched to satisfy himself that the officers who demanded to be admitted are acting lawfully, thus reducing the risk of misunderstandings, violence and the criminal charges which would follow, and makes the job of the police easier.

38.  This being the position at common law, it is not surprising to find in paragraph 4 of Section 44‑04 of the Police General Orders (made by the Commissioner of Police under s 46 of the Police Force Ordinance) the stipulation that, when executing a search warrant, the senior police officer present shall, among other things, produce the warrant if in his possession, or if he is executing a warrant not actually in his possession, inform the person in charge of the premises that if he so wishes, the warrant will be available for inspection after the search has been completed, and inform him of where the warrant will be available for such inspection.

39.  Neither the Police Force Ordinance nor the common law, however, confers on a person who is related to the documents seized or to be seized but who is not an occupier of the premises any right to have the warrant produced to him or her.  The prime concern of the common law, in requiring entry and search of premises to be authorised by law, is “the inviolability of private premises from arbitrary intrusion” (per Stock VP in Philip K H Wong, Kennedy Y H Wong & Co v Commissioner of the Independent Commission Against Corruption [2009] 5 HKLRD 379, §47).  This protection is now enshrined in Art 29 of the Basic Law.[10]  “A man’s home is his castle”, so the saying goes: see Semayne’s Case, supra, and Mr Pang has also cited Entick v Carrington (1765) 19 State Tr 1029, which emphasised that “every invasion of private property, be it ever so minute, is a trespass”, unless empowered or excused by some positive law.  The “citizens’ right to privacy” referred to by the Court of Appeal in Keen Lloyd, supra, at §49 alludes to the integrity and privacy of a man’s home and place of business, as referred to earlier in the same paragraph.

40.  As explained above, the act that would otherwise be unlawful without a search warrant is the entry and search of the premises in question and the seizure of the targeted articles.  The entry and seizure would attract tortious liabilities in trespass and conversion.[11] 

41.  Notwithstanding that the applicant is neither the occupier of the premises nor the owner of the documents obtained, it is submitted on her behalf that she has a “sufficient interest” in the subject matter of the warrant, giving her a strict right to its production.  The applicant refers to R v Purdy [1975] QB 288, but that case concerned a warrant for arrest otherwise than for a criminal offence and simply applied the common law rule that a constable could not make an arrest based on a warrant unless he had the warrant with him at the time.  The actual decision on the facts of that case was that the warrant was still to be regarded as being in the officers’ possession even though it was in their car some 50 or 60 yards away from the place of arrest.  The rationale of the common law rule was explained by Roskill LJ at p 296H‑297B as follows:

“ The mischief at which this common law rule is aimed is clear. Where a person is arrested on a warrant otherwise than for a criminal offence, it is essential that he should be able to know for what he is being arrested and whether he is being arrested for a matter of non‑payment of a fine, arrears of maintenance, arrears under an affiliation order or for something else; he can, if I may be forgiven the phrase, ‘buy’ his freedom from arrest by instant payment of the sum stated on the warrant. This therefore is the basic reason for the rule.”

In my view, this case provides no support for the proposition that when the lawfulness of police action is called into question by persons who have a “sufficient interest” in the subject matter of a warrant, then the warrant must by law be produced to such persons.

42.  Mr Pang invites the court to make a declaration that “upon the demand[12] of the person whose rights are affected by a search warrant, the relevant authority must produce a copy of the search warrant for inspection”.[13] Quite apart from the fact that this is not the declaration sought in the Form 86 or the originating summons, little imagination is needed for one to be able to see the far‑reaching implications of such a rule.  As submitted by the respondents, it would mean that any potential suspect who had somehow learnt that he might be the subject of an investigation, could demand that the police produce to him all search warrants executed or to be executed in the ongoing investigation.  In the case of a search conducted or to be conducted on a clinic, a bank or a commercial enterprise, the police would be obliged to produce upon demand the warrants for inspection by potentially very numerous persons whose information might be contained in the materials to be searched for and seized and whose privacy was therefore arguably affected.  This rule is not found in any statute or the existing common law.  Essentially the applicant contends that this court should create such a rule in her favour.

43.  That a search warrant may have an impact on the privacy of persons who are not the occupier of the premises to be searched but whose information is contained in the items to be seized is, I think, beyond dispute.  The question of the legal rights and obligations of such persons in relation to the warrant, and of the correlative powers and duties of the executive authority that executes the warrant, is a large and novel area that merits consideration by the legislature.  It would not, however, be appropriate or conducive to the development of the law for this court to create a rule to cater for the unusual circumstances of the present case and in so doing make a crude and general declaration without proper delineations, distinctions and limitations which the common law is ill‑equipped to devise and which may need to rest on considerations of policies and practicalities rather than principle and logic.

44.  A declaration of such free‑standing right to production of the warrant on demand is, in my view, not only inadvisable but also unnecessary in the context of the present case because in connection with legal proceedings to impugn a warrant, which is the purpose for which apparently the applicant had requested production, there are established legal mechanisms for the applicant to obtain access to the warrant if she has grounds to do so, such as by application for discovery within or before such proceedings — a subject that will be discussed further below.  This brings me to the topic of whether the applicant has been effectively obstructed from obtaining redress from the courts, which is the crux of her complaint.

Whether the applicant’s right of access to the courts infringed

45.  In the system of entry, search and seizure by warrant issued under s 50(7) of the Police Force Ordinance, the law provides safeguards against excesses by the requirement of a warrant issued by a judicial officer.  The significance of such prior scrutiny by an impartial authority has been explained by the Court of Appeal in Keen Lloyd at §§72‑74 and in Philip K H Wong at §§47‑49 in passages which provide a salutary reminder of the courts’ duty in this context which is one of high constitutional importance.  

46.  There is no prescribed form for a search warrant under s 50(7).  As stated by the Court of Appeal in Philip K H Wong, supra, at §§85‑86, a warrant must of course contain the matters to which the statutory provision itself refers.  In the case of s 50(7), this means that it must be an authorisation directed to the police; it must specify the premises to be searched; it must specify the offence that has been committed or reasonably suspected to have been committed or to be about to be committed or to be intended to be committed, to the investigation of which the articles sought are likely to be of value; it must indicate the articles which are sought; and it must show that the magistrate is satisfied there is reasonable cause to suspect that there is in the specified premises such articles likely to be of value to the investigation.

47.  An application for a search warrant under s 50(7) is, as far as I know, generally made without notice to the occupier of the premises to be searched or to other parties.  The grounds for the application would be set out in an information submitted to the magistrate.  The information placed before the court for the purposes of an application for search warrant has been recognised to be covered, as a class, by public interest immunity from disclosure: Apple Daily Ltd v Commissioner of the Independent Commission Against Corruption (No 2) [2000] 1 HKLRD 647.  While the applicant has queried why she was not given prior notice of the application, there is no challenge in these proceedings against the Commissioner’s decision to apply for the warrant ex parte and the magistrate’s decision to entertain the application and grant it on an ex parte basis.  The magistrate has not been made the respondent or an interested party in these proceedings.  At the hearing Mr Pang also disavowed any general proposition that a person in the position of the applicant should be given prior notice of an application for the search warrant or its execution.  As such, the case of Re an application by Officer O for Judicial Review [2008] NIQB 52, which decided that the Police Ombudsman for Northern Ireland, before deciding to require the Chief Constable under a specific statutory provision to provide all medical and occupational health records relating to the officer’s medical condition, should have given advance notice to the officer, is not apposite.

48.  Although the application for the issue of search warrant is made and dealt with on an ex parte basis, there is the further safeguard of a possible inter partes contest before the courts in respect of the legality of the search and seizure.  That contest may take various forms. 

(1) In Keen Lloyd at §§32‑41, the Court of Appeal held that a party served with a search warrant can, at least up to the time before the warrant has been fully executed, apply to the judicial officer who issued the warrant to have it set aside.  The grounds for such applications for discharge, however, seem to be limited to: (a) the legal limits for the grant of warrants; (b) the warrants were obtained by fraud or bad faith on the part of the law enforcement agency applying for the warrants; and (c) oppression.  In particular, the court cannot entertain challenges as to whether a case of reasonable suspicion has been established or the likelihood of relevant materials or information being obtained: see Keen Lloyd, at §§38‑40.

(2) Application to the Court of First Instance for judicial review is also available against decisions of magistrates to issue search warrants; see Re an application by Messrs Ip and Willis for leave to apply for judicial review [1990] 1 HKLR 154; Shun Tak Holdings Ltd & Others v Commissioner of Police (unrep, HCMP 1366 & 1367/1994, 27 July 1994); Philip K H Wong, supra, and Chan Kam Ching John Barry v Commissioner of Police [2014] 4 HKLRD 263 for examples of such application in Hong Kong and the grounds relied upon.  In the UK, the House of Lords’ case of Rossminster Ltd, supra, also originated from an application for judicial review.  A search warrant (other than those issued by the High Court itself) can be quashed by certiorari, and declarations and injunctions can be obtained: Feldman, op cit, §15.05.

(3) Another possible avenue for relief is a civil action for injunction to restrain use of the documents seized and to procure their return or for damages: Stone, The Law of Entry, Search and Seizure (5^th edition), §§3.106 to 3.110; Keen Lloyd, at §§42‑43.

49.  For the purposes of these proceedings, as I understand his position, the respondent does not dispute that the medical records in question contain personal data of the applicant for which there is a reasonable expectation of privacy, and that the applicant may therefore have sufficient interest to institute the above actions, at any rate based on grounds relevant to her interest.

50.  The applicant says that she seeks to re‑engage the judicial gatekeeping role in relation to the warrant and to challenge the lawful authority of the search and seizure of her medical records, but that the respondent has prevented her from doing so, thereby breaching Art 35 of the Basic Law. 

51.  Art 35 provides as follows:

“ Hong Kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts, and to judicial remedies.

Hong Kong residents shall have the right to institute legal proceedings in the courts against the acts of the executive authorities and their personnel.”

52.  In The Stock Exchange of Hong Kong Ltd v New World Development Co Ltd (2006) 9 HKCFAR 234, Ribeiro PJ said (at §50):

“ … Art 35 ensures that the fundamental rights conferred by the Basic Law as well as the legal rights and obligations previously in force and carried through to apply in the HKSAR are enforceable by individuals and justiciable in the courts. It gives life and practical effect to the provisions which establish the courts as the institutions charged with exercising the independent judicial power in the Region. This dimension of Art 35 is therefore concerned with ensuring access to the courts for such purposes, buttressed by provisions aimed at making such access effective. …”

53.  The parties agree that whether there has been an infringement of the right of access to justice is a question that depends on the facts of the individual case.  In some of the previous cases, the issue was whether a particular statutory provision or rule restricted a person’s right of access to the courts.  In Leung Chun Ying v Ho Chun Yan Albert (2013) 16 HKCFAR 735, it was contended that a provision in the Chief Executive Election Ordinance (Cap 569) that required any election petition to be lodged within a non‑extendable period of 7 working days infringed the constitutional right of access to the courts.  Ma CJ stated that whether the restriction amounted to an infringement of the right depends on whether on analysis the essence of the right has been impaired. 

54.  In Lau Chun Ming v Deloitte Touche Tohmatsu (a firm) (2016) 19 HKCFAR 448, it was argued that s 94 of the Bankruptcy Ordinance (Cap 6), which provides for the release of trustees in bankruptcy and the consequent discharge of the trustee from all liability in respect of the administration of the bankruptcy, was inconsistent with Art 35 of the Basic Law in that it removed the creditors’ right to judicial remedies against the trustee.  The Appeal Committee of the Court of Final Appeal stated that Art 35 ensured that fundamental rights as well as ordinary legal rights and obligations were enforceable by individuals and justiciable in the courts, and held that the applicant’s argument in that case was misconceived as there was no question of his having been denied access to the courts for such purposes.  Section 94 allowed the applicant access to the court to ask for the trustee’s release to be withheld.  The applicant did not avail himself of such access.  Accordingly, Art 35 was not engaged.

55.  It is of significance that the applicant has not pointed to any actual legal obstruction.  On the face of it, there is in the present case no impediment in law preventing the applicant from instituting legal proceedings in the courts to ventilate her arguments about rights to privacy in respect of the medical records.

56.  Is there any impediment in fact?  The applicant refers to the case of Golder v United Kingdom (1979‑80) 1 EHRR 524. That was a case where a prisoner who wished to institute libel proceedings against a prison officer was refused permission to consult a solicitor for the purpose of commencing such proceedings.  It was in that context that the court held (at §26) that by forbidding Golder to make contact with a solicitor, the Government of the United Kingdom “actually impeded” the launching of the action and “did in fact prevent him from commencing an action at that time”.  Plainly there has been no actual hindrance of a comparable nature in the present case. The applicant has at all material times been legally advised and represented and capable of instituting such legal proceedings as she might be advised.

57.  In Camenzind v Switzerland (1997) 28 EHRR 458, a search was conducted on a person’s home pursuant to a warrant issued by the telecommunications authority.  No equipment of the type sought was found. The person applied to the Swiss Federal Court for a declaration that the search was a nullity, but the court dismissed the application on the basis that he no longer had an interest as he was no longer affected by the search.  The European Court of Human Rights held that in those circumstances, the applicant did not have “an effective remedy before a national authority” within the meaning of Art 13 of the European Convention on Human Rights for pursuing his complaint of infringement of Art 8 of the Convention as a result of the search.  Relying on this decision, it is submitted on behalf of the applicant that she has been deprived of the “effective remedy” of applying for the warrant to be set aside, leaving only the possibility of damages.

58.  The respondent’s answer to this is that the applicant has not been prevented from taking legal action if there is any valid ground for doing so, and that Art 35 of the Basic Law does not confer on her any right to “fish” for material to see if she has such ground.  The respondent submits that the existing litigation regime permits the applicant to apply for discovery, whether pre‑action or otherwise, from either a defendant or a third party, provided she meets the necessary conditions, including establishing a prima facie case, relevance of the documents and the necessity of disclosure for the fair disposal of the cause or matter or for saving costs: see sections 41 and 42 of the High Court Ordinance (Cap 4);[14] and Order 24 rules 7A and 8 of the Rules of the High Court (Cap 4A).  Mr Mok refers to Taylor v Anderton (unrep, 16 October 1986) as an example of a pre‑action application for discovery of documents for the purpose of instituting proceedings against the police for procuring the issue of search warrants without reasonable cause and excessive execution of the search warrants.

59.  In my opinion there is considerable force in the respondent’s submission.  The Court of Appeal in Keen Lloyd was concerned with the position of the occupier of premises on whom the search warrant was served.  It did not deal with the position of a person like the applicant herein.  But assuming that the applicant (like a person on whom the warrant is served) also had the right to apply to the magistrate who issued the warrant to have it set aside, she was not “obstructed” in or prevented from taking that course.  Mr Pang submits that without seeing the warrants, the applicant did not know which magistrate to approach.  This in my view presents no real difficulty or actual impediment, for enquiry could be made with the magistrates’ courts or the application can be submitted which will no doubt be directed to the magistrate in question.  At the leave hearing the respondent’s counsel also confirmed that if what was needed was simply the identity of the magistrate, then that could be readily supplied by the respondent.  Without more, the threshold for “obstruction” has in my view not been met.

60.  Equally there was nothing to prevent the applicant from applying to the Court of First Instance for leave to apply for judicial review of the warrant in question, or instituting other proceedings to impugn the warrant and to seek the return of the documents, if she has valid grounds for doing so.  At the leave hearing the issue was mentioned whether the warrant could still be set aside if it had been “fully executed”.  The Court of Appeal in Keen Lloyd at §§41‑42 suggested that it could not, but it seems that the court was there referring to an application to the judicial officer who granted the warrant to have it set aside, not to an application to the High Court for judicial review.  There are many examples of judicial review of search warrants after they have been executed: see §48(2) above, and, where appropriate, interim measures can be put in place such as sealing up the documents to prevent them from further use by the authorities: see eg Apple Daily Ltd v Commissioner of the Independent Commission Against Corruption [2000] 1 HKLRD 595.  In the present case, the applicant still seeks an injunction against the respondent to prohibit any further reading, use or distribution of her personal data obtained pursuant to the warrant.  The respondent has given an undertaking to seal up the medical records obtained pursuant to the warrant pending the determination of these proceedings.  Both parties seem therefore to have proceeded on the basis that there can still be meaningful relief associated with an application to set aside the warrant.  It seems to me that, contrary to Mr Pang’s argument, assuming the applicant has valid grounds of complaint, she is not left with a claim for damages as her only remedy.

61.  Despite that the applicant’s solicitors had indicated as early as on 3 September 2019 that they were preparing an application to set aside the warrant, it remains unclear what the ground is for such intended application.  It seems to be suggested that the applicant intends to rely upon her privacy rights and to submit that the warrant is an unlawful intrusion into her privacy, but it is not explained how, if at all, such an application has been prevented or impeded by the non‑production at this stage of the warrant. 

62.  Mr Pang submits that without seeing the warrant, the applicant will not be able to raise grounds that attack the form and scope of the warrant.  I am unable to accept this argument.  It begs the question whether the applicant is entitled to production of the warrant in the first place — a question dealt with earlier.  If she has no such free‑standing legal right, then it is for her to apply for discovery and production, if necessary before commencing substantive proceedings, if there are grounds for doing so. If in the event she is denied such discovery, that would not be an infringement of her right of access to the courts.

63.  In these circumstances it seems to me the applicant has failed to establish that the essence of her right of access to the courts under Art 35 of the Basic Law has in any way been impaired.

Conclusion

64.  In summary, for the above reasons, I consider that the applicant does not have a free‑standing right to the production of the warrant on demand.  There are existing mechanisms in the law for the applicant to seek, on proper grounds, production of the warrant in the context of actual or intended proceedings to impugn it.  The fact that the respondent has thus far not produced the warrant to the applicant does not mean her right of access to the courts has been infringed.

65.  Accordingly, the application for judicial review is dismissed.  There will be an order nisi that the applicant do pay the respondent the costs of these proceedings with a certificate for two counsel, and that the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.