PHILIP K H WONG & KENNEDY Y H WONG (a firm of solicitors) AND ANOTHER v. THE COMMISSIONER OF THE INDEPENDANT COMMISSION AGAINST CORRUPTION

PHILIP K H WONG & KENNEDY Y H WONG (a firm of solicitors) AND ANOTHER v. THE COMMISSIONER OF THE INDEPENDANT COMMISSION AGAINST CORRUPTION

When ICAC investigations engage offences that fall within the definition of organised crime under OSCO and investigators seek material from third parties such as solicitors, banks or management offices, the special OSCO procedure (ss3-5) applies and ICAC cannot bypass those requirements by relying on the general...

Source-derived case information.

Citation
PHILIP K H WONG & KENNEDY Y H WONG (a firm of solicitors) AND ANOTHER v. THE COMMISSIONER OF THE INDEPENDANT COMMISSION AGAINST CORRUPTION
Parties
First Applicant (solicitors): PHILIP K H WONG & KENNEDY Y H WONG; Second Applicant (company): PHILIP (NOMINEES) LIMITED; Respondent (commissioner, Icac): THE COMMISSIONER OF THE INDEPENDANT COMMISSION AGAINST CORRUPTION
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
14 December 2007
Case Number
HCAL70/2007
Procedural Posture
Judicial Review / Judgment (high Court, Court of First Instance)
Outcome
Certiorari granted; warrants and related seizure quashed; Shatin documents retained as voluntarily produced; leave reserved on disposition and damages; costs reserved
Legal Topics
Search Warrants, Investigative Powers, Organized Crime, Legal Professional Privilege, Statutory Interpretation, Seizure of Documents, Certiorari
Source Language
en
Constitutional and Administrative Law Criminal Law Procedural Law Evidence Professional Privilege Search Warrants Investigative Powers Organized Crime +4 more

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 9 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

PHILIP K H WONG & KENNEDY Y H WONG

First Applicant (solicitors)

PHILIP (NOMINEES) LIMITED

Second Applicant (company)

THE COMMISSIONER OF THE INDEPENDANT COMMISSION AGAINST CORRUPTION

Respondent (commissioner, Icac)

Procedural Posture

Judicial Review / Judgment (high Court, Court of First Instance)

Legal Issues

  1. 1 Whether ICAC may rely on s10B ICACO to obtain search warrants when investigating an offence under s25 OSCO that constitutes organised crime, or whether OSCO procedures (ss3-5) must be followed
  2. 2 Whether failure of the warrants to incorporate safeguards for claims of legal professional privilege invalidates the warrants
  3. 3 Whether documents voluntarily produced from premises not covered by a warrant (the Shatin documents) may be retained by ICAC

Ratio Decidendi

When ICAC investigations engage offences that fall within the definition of organised crime under OSCO and investigators seek material from third parties such as solicitors, banks or management offices, the special OSCO procedure (ss3-5) applies and ICAC cannot bypass those requirements by relying on the general search powers in ICACO; the magistrate therefore acted without jurisdiction in issuing the s10B warrants for the organised crime s25 OSCO matter, and the warrants and consequent seizure must be quashed, although documents voluntarily produced from locations not covered by the warrants may be retained by ICAC.

Court Disposition

Certiorari granted; warrants and related seizure quashed; Shatin documents retained as voluntarily produced; leave reserved on disposition and damages; costs reserved

Orders

  • Order quashing the decision of the Commissioner of the ICAC to seize and detain documents and materials recovered pursuant to those warrants
  • Declaration that ICAC is entitled to retain the Shatin documents voluntarily produced from premises not specified in the warrants