Whether a search and seizure situation on journalistic material 'may seriously prejudice the investigation' is a matter for a court judge to decide, the Security Bureau says, adding it does not see a need to qualify the phrase in legislation.

The bureau today responded to issues raised by a Legislative Council panel review of statutory provisions on search and seizure of journalistic material.

Principal Secretary for Security Winnie Ng said Judge Hartmann's judgment in a recent case said the risk that journalistic material may be hidden or destroyed must be 'a real risk'. But she said the concept of 'real risk' has not been used in similar cases in the UK or Hong Kong. By contrast the concept of 'may seriously prejudice the investigation' is used in both places.

Judge's discretion

Ms Ng said the judge must be satisfied the issuance of a production order may prejudice the investigation to a serious degree, which will entirely depend upon the facts and circumstances of the case and will be for a judge to address when dealing with an application for warrant.

More important, she said the intention behind the 'may seriously prejudice investigation' criterion in the legislation is that the judge should take into account the many ways, of which the loss or destruction of materials is only one, an investigation may be seriously prejudiced by an application for a production order.

It will be inappropriate to limit the current test of 'may seriously prejudice the investigation', which caters for a range of contingencies, to just the risk of the material being hidden or destroyed, she said.

Ms Ng added as situations where serving of notice of an application for a production order may seriously prejudice the investigation vary from case to case, it will be impracticable to list them out exhaustively.