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* that a production order has not been complied with; or
that, in addition to meeting most of the Tier One conditions, it is not practicable to apply for a production order or that the service of a notice on the other party for an inter partes hearing may seriously prejudice investigation.
Any journalistic material seized pursuant to the warrant has to be sealed. The person from whom the material was seized may make an inter partes application for the return of the material. Unless the judge is satisfied that it would be in the public interest that the material be made use of by the authorities, he shall order it to be immediately returned to the person from whom it was seized.
Tier Three: warrant application, seize and use
In exceptional circumstances, an officer may go for Tier Three, i.e. to make an ex parte application for a warrant and for the immediate use of the journalistic material seized. Apart from satisfying all the additional requirements in Tier Two, the officer has to prove to the satisfaction of the judge that the investigation may be seriously prejudiced if immediate access to the material is not permitted.
During the discussions of the Bills Committee, the question arose as to whether "journalistic material" should be more precisely defined. After considering the various options, we have decided to adhere to the present definition in the Bill which follows the relevant provision in the United Kingdom Police and Criminal Evidence Act 1984. This will ensure that any case law on the United Kingdom definition can be availed of in Hong Kong. We believe, and I believe the Bills Committee also agrees, that the advantage of defining "journalist material" generally, as we do so in the Bill, and not, for example, to make reference to the way in which the material was acquired, created or possessed, will provide the best protection to bona fide journalistic material. I can assure the Hon James To that the Bill targets material not acts of acquiring its material.
The Bill does not apply to the exercise of search and seizure powers under section 21 of the Drug Trafficking (Recovery of Proceeds) Ordinance and section 5 of the Organized and Serious Crimes Ordinance. This is because those provisions already contain elaborate and stringent safeguards which provide adequate protection for journalistic material. We have, however, accepted the suggestion of the Bills Committee to review later, in the light of experience, whether the two provisions in the Ordinances should be brought within the scope of the Bill.