Are warrantless seizures by law enforcement agencies warranted?

Cases involving warrants or the lack of them in law enforcement search and seizure contexts are relatively few and far between. But in its recent judgment in the case of Chun Sang Plastics Company Limited v Commissioner of Police and Secretary for Justice [2018], the Hong Kong Court of First Instance’s (“CFI”) had to consider a somewhat unusual compensation claim arising from a situation where the police seized property without a search warrant.

Background

Between 16 September 2008 and 6 October 2008, Chun Sang Plastics purchased and paid HK$3,427,529 in total for 17 containers of plastic goods (“Goods”). As from 6 October 2008, Chun Sang Plastics was in possession of the Goods which were properly documented trade goods. 

On 9 or 10 October 2008, the police seized and detained all the Goods. The police’s seizure was based on complaints from other companies in the chain of purchase of the Goods against an individual, which were interpreted by the police as being criminal complaints alleging theft of goods and raising the inference that Chun Sang Plastics was handling stolen goods. It ultimately took a period of gradual release over two years and seven months before all Goods were returned to Chun Sang Plastics.

The CFI’s findings on law enforcement agencies’ seizure powers

Chun Sang Plastics brought proceedings against the Commissioner of Police and the Secretary for Justice for compensation under various tortious claims, and succeeded in most of them.  In a strongly worded judgment, the CFI held that the police acted unlawfully in seizing and detaining the 17 containers of Goods. Chun Sang Plastics was awarded damages for diminution in the value of goods, containers and associated charges, as well as loss of profits. 

In addition to findings on the various claims in tort, the CFI also made a number of observations about law enforcement agencies’ seizure powers.

(a) Would a search warrant be granted if the police applied for one?

Section 28(1) of the Theft Ordinance, which in its terms is mostly identical in basic legal requirements to a wide range of powers for law enforcement agencies (or, in some cases, regulators) to obtain search warrants, provides that:

“If it is made to appear by information on oath before a magistrate that there is reasonable cause to believe that any person has in his custody or possession or on his premises any stolen goods, the magistrate may grant a warrant to search for and seize the same.”

The CFI held that in the context of this case, a search warrant would not have been granted even if the police tried to apply for one, because the available information pointed to Chun Sang Plastics legitimately owning and possessing the Goods.

(b) Seizure without warrant?

Although it is not uncommon for law enforcement agencies to seize property on the authority of search warrant, there also exists various statutory provisions that allow for seizures without warrant. One such example of relevance in this case is section 55 of the Police Force Ordinance, on which the Commissioner of Police relied in this case in support of its seizure of the Goods. It provides that:

“It shall be lawful for any police officer to stop, search and detain any vessel, boat, vehicle, horse or other animal or thing in or upon which there is reason to suspect that anything stolen or unlawfully obtained may be found…”

The CFI concluded that the “thing” has to be a form of mobile transport (like vessel, boat, vehicle, horse or other animal), before immediate action without recourse to a warrant may be permitted.  Accordingly, the CFI held that this section did not empower the police to seize and detain the Goods without a warrant.

Observations and implications

The facts of this case are in many ways unique, but they do raise a number of practical issues.

(a) Are search warrants so hard to obtain?

In asserting that no search warrant would have been granted in this case even if one was applied for, the CFI appeared to assume that a Magistrate or Judge assessing the grant or otherwise of a search warrant could descend into matters of evidential detail. However, multiple search warrants applications in multiple cases are often put before a duty Magistrate or Judge at any one time, all of which need to be determined quickly. 

Therefore, practically speaking, search warrants applications are typically granted (and understandably so given the urgency often associated with search and seizure processes). The decision to grant such applications are also practically difficult to review and overturn. 

To take this case as an example, had the police applied for a search warrant, notwithstanding the CFI’s hindsight observations, the application may well have been granted with little challenge. 

(b) Interpretation of law enforcement agencies’ powers to seize without warrant

It appears from the CFI’s approach in this case that courts would be inclined to read narrowly the powers of law enforcement agencies to seize property without warrant. Such an approach seemed to be driven by the fact that seizure without warrant is a power that is not on its face subject to any immediate and contemporaneous independent review.

(c) To warrant or not to warrant?

The facts of this case are unusual in terms of it being a sudden seizure of property without warrant.  But in a broader sense, it is not entirely unusual for law enforcement agencies to approach individuals and entities to try and request the production of property (especially documents and records) without any search warrant. While co-operating with investigations is generally a preferable approach, any production of property in such circumstances ought typically to take place only under legal compulsion by way of a search warrant (or, in the case of some regulators, by way of legally enforceable notices).

First, by insisting on a search warrant, one is not in most cases putting law enforcement agencies to any great practical inconvenience. The obtaining of what is in practice almost unchallengeable legal backing for compulsory search and seizure of property reduces the scope for unnecessary and costly disputes over the ambit of law enforcement agencies’ powers.

Second, the result of this case may superficially make one wonder whether it may be preferable to allow law enforcement agencies to seize property without warrant, so as to leave the door open for compensation claims. However, third parties may also have rights to the property in question (eg right of purchase or possession), or in the information contained in them (eg right of confidentiality). In such circumstances, voluntarily allowing law enforcement agencies to seize property can in fact lead to compensation claims from such third parties, thus creating even more trouble than insisting (in a co-operative, non-confrontational manner in most cases) on the prior obtaining of a search warrant by law enforcement agencies.

Dealing with law enforcement search and seizure operations can often be time consuming and stressful exercises. Ensuring that law enforcement agencies get their legalities in order at the outset of such operations can help reduce lingering and longer term problems associated with such processes.