Case News

The TCC delivers its Judgment 112-Hsien-Pan-9 (2023)

TAIPEI, June 20, 2023. The Taiwan Constitutional Court (TCC) delivered its Judgment of the "Case on Search and Seizure of Law Firm's Offices" on June 16, 2023.

Principal Facts, Issues, and Procedure of the Case

     This Judgement concerns the attorney-client privilege and the protection of legal professional secrecy in cases that involve search and seizure of law firm's offices. The disputed provisions are Article 122, Paragraph 2 and Article 133, Paragraph 1 of the Code of Criminal Procedure. The former stipulates the standard to initiate search and seizure toward parties that are not criminal suspects; the latter the general regulation for seizure. 

    The petitioner is the law firm Lee and Li, Attorneys-at-Law. In 2011, offices of two lawyers (LIN and HUNG) employed by the petitioner were searched by the Ministry of Justice Investigation Bureau (MJIB). The offices were on the premises of the petitioner's Hsinchu branch office. The search was initiated to collect evidence for an insider-trading investigation toward the firm's client, Kontron Asia, who was assigned to Lee and Li lawyers LIN and HUANG. Based on surveillance recordings, the MJIB had probable cause to believe that they may find crucial evidence in the correspondences between the Securities and Futures Bureau of the Financial Supervisory Committee and LIN and HUNG explaining their client's conducts per their request. The MJIB's search warrant, with a note from the investigation's prosecutor emphasizing the search "shall only be limited to document and electronic devices in LIN and HUNG's offices, so that it wouldn't cause a nuisance to the firm", was issued by the Taiwan Shilin District Court. The MJIB search has resulted in the seizure of eighteen emails (and relevant documents) from HUNG and one compact disc containing LIN's emails. The petitioner filed an interlocutory appeal, arguing that the seized documents are privileged and that Taiwan Shilin District Court allowing the search without first ordering its lawyers to hand in the documents has violated due process, but was overruled by the Taiwan High Court.

     The petitioner lodged for constitutional review in July 2012, arguing that disputed provisions have treated the premises of law firms as common places, making the premises prone to searches, and privileged documents and electronically-stored information subjected to seizure, consequently violating attorney-client privilege, the protection of legal professional secrecy, and the right to judicial remedy.

     The oral argument of this case was held on March 27, 2023, with relevant documents made public on the TCC website per the requirements of the Constitutional Court Procedure Act (CCPA). Judgment 112-Hsien-Pan-9 was announced by the Court en banc at 3 p.m. on June 16, 2023. Justice Jui-Ming HUANG wrote this Judgment. Justice Horng-Shya HUANG, Justice Jiun-Yi LIN, and Justice Sheng-Lin JAN each filed a concurring opinion. Justice Hui-Chin YANG (joined by Justice Jau-Yuan HWANG and Justice Tzung-Jen TSAI) filed an opinion dissenting in part. 

Decision of the Court

     The TCC declared the disputed provisions partly unconstitutional. The TCC held that the disputed provisions fail to provide sufficient procedural safeguard for attorneys and law firms by not excluding their attorney-client communications from search and seizure, consequently violating the lawyer's right to work and their client's right to judicial remedy. However, in terms of judicial supervision and remedy against search and seizure, the TCC pointed out that the current mechanism of judge-reviewed warrants and interlocutory appeals is sufficient, hence constitutional. The TCC further supplemented that when there is a dispute over whether the seized document and communication are privileged, the affected party may file an interlocutory appeal with the court in accordance with Article 416, Paragraph 1 of the Code of Criminal Procedure, for the warrant to be revoked or seized items be sealed and referred to the court for further examination. 

     The TCC held that the competent authority shall amend the disputed provisions as appropriate within a two-year grace period. Before the provisions are amended, search and seizure of law firm's offices shall be conducted in accordance with this Judgment. 

Notes:

1. Full texts of the Judgment and Opinions are available on the TCC website at https://cons.judicial.gov.tw/docdata.aspx?fid=38&id=345006 (Traditional Chinese). An English summary of this Judgment will be available later on the TCC English website.
2. The TCC's Case News is prepared by the Department of Clerks for the Constitutional Court (Judicial Yuan) for information only and does not bind the Court.