Global Investigations Review - The law and practice of international investigations

Privilege

Last verified on Wednesday 4th October 2017

Hong Kong

Gavin Lewis and Sarah Martin
Linklaters

    Scope of the privilege

  1. 1.Are communications between an attorney and client protected? Under what circumstances?
  2. There are two main categories of legal professional privilege recognised in Hong Kong:

    • legal advice privilege, which attaches to all communications made in confidence between lawyers and their clients for the purpose of giving or obtaining legal advice; and
    • litigation privilege, which attaches to confidential communications between a lawyer and a client, or either of them and a third party for the dominant purpose of giving or obtaining advice in relation to litigation or collecting evidence for pending or reasonably contemplated litigation. 

    Subject to one key difference regarding the scope of legal advice privilege (see question 10 below), legal professional privilege is recognised in Hong Kong in the same way as it is under English law.

  3. 2.Does the privilege only protect legal advice? Does it also protect non-legal communications between an attorney and client, such as business advice?
  4. Privilege protects all communications between a lawyer and a client, provided that: (i) there is a legal context; (ii) the lawyer is acting in his or her capacity as a legal adviser to the client; and (iii) the communication is made for the purpose of obtaining legal advice and assistance. Therefore non-legal communications, such as purely business advice, are not protected. The Hong Kong Court of Appeal has recently confirmed in Super Worth International Ltd & Ors v Commissioner of the ICAC & Secretary for Justice [2016] 1 HKLRD 281 (Super Worth) that legal advice privilege does not extend to advice by non-lawyers (for example, accountants advising on tax law).

    However, privilege may extend to the “continuum of communications” between the lawyer and his or her client. Privilege will attach where information is passed between the lawyer and the client as part of this continuum aimed at keeping both informed so that advice may be sought and given as required.

  5. 3.Is a distinction made between legal advice related to litigation and other legal advice?
  6. There is a distinction between legal advice privilege and litigation privilege. Legal advice privilege applies to: (i) confidential communications; (ii) which pass between a client and the client’s lawyer; (iii) for the purpose of getting or giving legal advice or assistance. Legal advice privilege will not protect communications with a third party.

    For litigation privilege to apply, the material in question must: (i) be a confidential communication between a lawyer and the client, or between either of them and a third party; (ii) be made for the dominant purpose of giving or obtaining advice in relation to litigation or collecting evidence for litigation; (iii) once litigation is pending, reasonably contemplated or existing. Litigation refers to proceedings in court or tribunals and other adversarial proceedings where judicial functions are exercised (as opposed to solely inquisitorial fact-finding investigations). Whether litigation is in reasonable contemplation will depend on the facts and the precise context of the litigation being contemplated. Note that the recent English case of Serious Fraud Office v Eurasian Natural Resources Corporation [2017] EWHC 1017 (QB) (ENRC), which found that a criminal investigation (as opposed to prosecution) by the relevant agency should not of itself be treated as adversarial litigation for the purposes of establishing litigation privilege, has not yet been considered by the Hong Kong courts.

  7. 4.

    What kinds of documents are protected by the privilege? Does it cover documents that were prepared in anticipation of an attorney-client communication? Does it cover documents prepared during an attorney-led internal investigation?

  8. Privilege extends to any document prepared by a lawyer or the client from which the nature of the advice sought or given might be inferred. For the purposes of identifying what materials may be privileged, a “document” includes everything on which evidence or information is recorded. Privilege will extend to documents that are preparatory to the actual lawyer–client communication, where the content of such documents, in whole or in part, evidences the substance of a subsequent privileged communication. Therefore, both the lawyer’s and the client’s working papers are privileged, provided they are sufficiently connected with the actual lawyer-client communications.

    In the same way, documents prepared during an attorney-led internal investigation, including during the fact-gathering process, will be covered by the broader doctrine of legal advice privilege in Hong Kong if they satisfy the “dominant purpose” test; that is, an internal confidential document (not being a communication with a third party) will be protected by legal advice privilege if it comes in to existence with the dominant purpose that it or its contents be used to obtain legal advice (see discussion of Citic Pacific Ltd v Secretary for Justice (No 2) [2015] 4 HKLRD 20 (Citic Pacific) in question 10).

    Litigation privilege may attach to communications with third parties during an attorney-led investigation; however, it will need to be established that the dominant purpose is to obtain legal advice or for use by the client’s lawyer in relation to pending or reasonably contemplated litigation (see question 3).

    It should be noted that raw material (ie, original contemporaneous documents, not created for the purpose of legal advice) even where forwarded to or made by a lawyer for litigious purposes, will not be protected by privilege unless the selection of documents could betray the nature or trend of advice. However, where such material is processed and reduced to documentary form in order to seek legal advice (whether for litigation or otherwise) and the document forms part of the necessary exchange of information between the lawyer and client in circumstances where the object is to give legal advice (ie, the “continuum of communications”), it will be protected by privilege (Citic Pacific).

    The Hong Kong courts have not specifically addressed the question of interview memoranda in the detail considered by the English Courts. The English High Court held in the RBS Rights Issue Litigation [2016] EWHC 3161 (Ch) (and confirmed in ENRC) that notes of interviews with employees who do not form part of the “client” (ie, those authorised to seek and receive legal advice) will not constitute communications between the lawyer and client (and will instead be considered communications between the lawyer and third parties) and so cannot be protected by legal advice privilege. Secondly, interview memoranda will only constitute privileged lawyers’ working papers where the notes betray or “give a clue” as to the trend of legal advice being given to the client by its lawyer. These principles will likely be taken in to account in Hong Kong, such that additional care should be taken when structuring and recording attorney-led internal investigations.

    However, in circumstances where privilege does attach to interview memoranda, in the context of a corporate client, such privilege will be enjoyed by a wider group of employees as a result of the decision of the Court of Appeal in Citic Pacific (see question 10).

  9. 5.To what extent must the communication be confidential? Who can be privy to the communication without breaking privilege?
  10. Confidentiality is a requirement for legal professional privilege to apply (see question 3) and therefore documents in the public domain are not privileged. Where a third party hears or reads a communication between the lawyer and the client, confidentiality (and therefore privilege) may be lost. However, if a document has been disclosed to a limited number of third parties on express terms that it was to remain confidential and was not to be (and did not in fact become) generally available outside that limited group, then privilege will not necessarily be lost (see further discussion of limited waiver at question 17). 

  11. 6.Is the underlying information privileged if it can be obtained from a non-privileged source?
  12. Privilege attaches to oral or written communications between the client and the lawyer, and not the underlying facts that form the subject of those communications. Further, where a privileged document has ceased to be confidential (because, for example, it has been made available to the general public on a website) it can no longer be the subject of a claim for privilege (see question 5). In Pang Yiu Hung Robert v Comr of Police [2002] 4 HKC 579 it was held that a client who informed his lawyer of the fact that he or she would deposit funds with the lawyer and then did so, could not claim privilege in respect of this statement of fact as it was not connected to the legal advice.

  13. 7.Are there any notable exceptions or caveats to the privilege?
  14. There are a number of exceptions. Most notably, privilege will not attach to communications made for the purpose of committing a fraud or crime because such communication does not come within the scope of the professional retainer. However, the court must be satisfied that there is a real basis for a case of fraud and that the documents concerned came into existence as part of the fraud (Citic Pacific Ltd v Secretary for Justice) [2012] 2 HKLRD 701.

    In addition, where there is a fiduciary relationship, for example, between a trustee and beneficiary, privilege cannot be claimed by the trustee (except in respect of communications and documents brought into existence by the trustee for the purpose of litigation against him by the beneficiary) (Talbot v Marshfield (1865) 2 Dr & Sm 549). In addition, a company cannot claim legal professional privilege as against its shareholders because the shareholders have a right to inspect a company’s privileged documents (except where advice has been received from a lawyer in respect of hostile proceedings between the company and its shareholders).

    The courts have held that legal professional privilege is a fundamental human right that can only be excluded by express statutory provision (Pang Yiu Hung Robert v Comr of Police). Privileged information should not be revealed unless the law or a court order clearly overrides the privilege. Under the Legal Practitioners Ordinance (section 8A, section 8AA and section 8B(2)), privilege is overridden where the Law Society considers a lawyer is unfit to practise and requires information or documents to verify the lawyer's compliance with the rules on professional conduct. The Drug Trafficking (Recovery of Proceeds) Ordinance (section 25 and section 25A), the Organised and Serious Crimes Ordinance (section 25 and section 25A) and the United Nations (Anti-Terrorism Measures) Ordinance override the legal professional privilege (as well as the lawyers' confidentiality rules) and require a lawyer to report any knowledge or suspicion or both of money laundering activities. Similar obligations on lawyers are contained in the Prevention of Bribery Ordinance (section 15) and the Inland Revenue Ordinance (section 51).

    However, these provisions do not exclude the duty to disclose information that is confidential but not privileged. No statutory defence is available to a lawyer for failing to provide information required to be disclosed under such provisions other than that protected by legal professional privilege. When disclosure is required by law or by order of a court of competent jurisdiction, a lawyer should always be careful not to divulge more information than is required.

    Finally, in certain circumstances the court may override privilege and order disclosure, for example, where it is for the benefit of the client (Re an Application by Messrs Ip and Willis [1990] 1 HKLR 154). 

  15. 8.Are there laws unrelated to privilege that may protect certain communications between attorney and client?
  16. Lawyers owe a duty of confidentiality to every client under the rules of professional conduct. This duty survives the professional relationship and continues indefinitely after a lawyer has ceased to act for a client, whether or not differences have arisen between them. 

    Protected parties

  17. 9.To what extent does the privilege extend to in-house counsel? 
  18. An in-house lawyer’s communications will be privileged as long as he or she is exercising professional skill as a lawyer, that is, acting as a lawyer in a relevant legal context. The issue will be whether the lawyer gave the advice in his or her professional capacity and whether the advice relates to the rights, liabilities, obligations or remedies either under private law or under public law. Where the in-house lawyer communicates with a party in an executive or general managerial capacity, the communication will not be privileged. This distinction between relevant legal context and acting in a managerial capacity only is in line with the established principles of legal advice privilege, which have been re-affirmed by the English High Court in PAG v RBS [2015] EWHC 3187 (Ch).

  19. 10.Does the privilege protect communications between an attorney and a corporate client’s employees? Under what circumstances?
  20. In Citic Pacific, the Hong Kong Court of Appeal held that the definition of “client” should be interpreted more broadly than the narrow definition applied by the English Court of Appeal in Three Rivers District Council v Governor and Company of the Bank of England (No. 5) [2003] QB 1556. The Hong Kong Court of Appeal opted for a more liberal approach that, in essence, defines a “client” for the purpose of legal advice privilege as simply a corporation and its employees who could be regarded as being authorised to act for the corporation in the process of obtaining legal advice. The Hong Kong Court of Appeal also held that Hong Kong should adopt the “dominant purpose” test to set the proper limit for legal advice privilege; that is, if a document comes into existence as part of the continuum of communication between a lawyer and a client with a dominant purpose of getting legal advice, it should be protected by legal advice privilege. A claim of legal advice privilege may therefore be made over a wider range of communications between the client and its legal advisers, as well as documents generated during the information gathering process (although not raw materials which came into existence during the course of the transaction or event), potentially shielding them from discovery in litigation or production during an investigation (see question 4). In this regard, the Hong Kong law on legal professional privilege differs from English law.

  21. 11.

    Does the privilege protect communications between non-lawyer employees of a corporate client if they are acting at the direction of counsel or gathering information to provide to counsel?

  22. Communications between clients and non-lawyer employees of a firm of lawyers, including paralegals, trainee lawyers and secretaries acting under the direction of a lawyer, or foreign lawyer (including communications between these non-lawyers) will attract legal professional privilege, provided they are acting in a professional capacity (it is irrelevant whether or not they are paid for their services). 

    Communications between clients and a third party for the dominant purpose of obtaining legal advice or for use by the client’s lawyer in relation to pending or reasonably contemplated litigation will be protected by litigation privilege (see question 3). For example, a witness proof taken by the client in order to be sent to his or her lawyer (even if the lawyer did not request it, or the client did not in fact ever send the communication to his or her lawyer). 

  23. 12.Must the attorney be qualified to practise in your country to invoke the privilege?
  24. Privilege will extend to communications with foreign lawyers who do not hold a current practising certificate in Hong Kong. If an adviser is a lawyer admitted in a foreign country it is unnecessary to require evidence about legal and ethical practices and controls by foreign courts, though the position may be different if the circumstances raise the question whether the person is a lawyer at all.

    Privilege will also extend to communications with a person who, at the time of the relevant communications had ceased to be a lawyer, but the client was not aware (Calley v Richards (1854) 19 Beav 401).

  25. 13.

    Does the privilege extend to non-lawyer third parties? In which circumstances does the privilege protect communications with third parties if they are providing advice related to a legal matter?

  26. The Court of Appeal has recently confirmed in Super Worth that legal advice privilege does not extend to advice given by non-lawyers even if such advice is related to a legal matter. Following the majority decision of the English Supreme Court in R (Prudential Plc) v Special Commissioner of Income Tax [2013] UKSC 1, the Court held that advice given by accountants on tax law was not protected by legal advice privilege; to expand the range of advisers in this regard would leave the law in a state of uncertainty and any such expansion raised questions of policy which were more appropriately considered by the legislature after appropriate public consultation.

    However, litigation privilege will attach to confidential communications between a client or his or her lawyer and non-lawyer third parties where such communication is for the dominant purpose of obtaining legal advice or for use by the client’s lawyer in relation to pending or reasonably contemplated litigation (see question 3).

  27. 14.Does the privilege apply to communications with potential clients?
  28. In order for privilege to apply, the professional relationship between a lawyer and a client must be established. However, it does not matter whether there is a formal retainer in place (Minter v Priest [1930] AC 558 HL). 

    Ownership of the privilege

  29. 15.Does the attorney or the client hold the privilege? Who has rights under the privilege? 
  30. Legal professional privilege belongs to the client (and his or her successors in title) and not to his or her lawyer. Unless the client waives the privilege (see question 16), the client’s lawyer is not entitled to disclose the client’s confidential and privileged documents or information without the client’s consent. The lawyer is under a professional obligation to assert the privilege on behalf of his or her client unless it has been waived.

    In the case of litigation privilege, a third party (such as a witness or potential witness) with whom a lawyer or client has communicated for the purposes of the proceedings is not entitled to assert the privilege of the party to the actual or prospective litigation on their own behalf. However, a third party may be able to assert his or her own privilege on the basis of a common or joint interest (see question 18).

  31. 16.Can the privilege be waived? Who may waive it?
  32. Privilege may be waived by either express or implied waiver. It may also be waived by putting privileged material before the court or because the material is no longer confidential (confidentiality being an element of privilege). Privilege can only be waived by the client to whom the privilege belongs.

  33. 17.Is waiver all or nothing? Is it possible to waive the privilege for certain communications but not others?
  34. A client can exert a partial or limited waiver of privilege, whereby privilege is waived with respect to one party but not more widely (Citic Pacific Ltd v Secretary for Justice [2012] 2 HKLRD 701). Where severance is possible, privilege may also be waived in respect of part of a document.

    However, a waiver over certain privileged communications, but not over others (a partial waiver), may give rise to an obligation to produce further associated privileged documents to prevent “cherry picking” or selective disclosure which might otherwise provide only a partial picture to the court. This can be referred to as “collateral waiver” and the court must be satisfied that what the party has disclosed represented the whole of the material relevant to the issue in question. In this regard, Hong Kong courts have followed the English approach as set out in Paragon Finance Plc v Freshfields [1999] 1 WLR 1183 (as opposed to the Australian and New Zealand approach). While there is no rule that a party who waives privilege in relation to one communication is taken to waive privilege in respect of all, the court will enquire whether any unfairness or misunderstanding has resulted from such partial disclosure (Goldlion Properties Ltd & Others v Regent National Enterprises Ltd [2005] HKC 500). Any doubt as to whether there is any waiver should be resolved in favour of upholding the privilege.

    The Rules of the High Court (Order 24) allow a party to legal proceedings to require the other party to disclose documents referred to in their pleadings and witness statements (to the extent that they are not privileged); however, where privilege has been waived, the documents must be disclosed. Note that reference to privileged material in a witness statement will not constitute a waiver of privilege unless there is a reference to the contents of and reliance on that privileged material. The test is therefore whether the contents of the documents is being relied on, as opposed to its effect.

  35. 18.If two defendants are mounting a joint defence, can they share privileged information without waiver? What about two parties with a common interest?
  36. Joint privilege can arise in two circumstances: (i) joint retainer, where two or more parties jointly retain the same lawyer; and (ii) joint interest, where such parties have a joint interest in the subject matter of the communication at the time that it comes into existence (even though the parties have not jointly retained a lawyer).

    Where parties are subject to a joint retainer (a question of fact), they are entitled to see any privileged communications to which they have not been a party, and are not entitled to claim privilege against each other in respect of those communications in any subsequent litigation in circumstances where they sue each other (although they may assert privilege as against a third party), nor are they entitled to waive privilege unilaterally. It is often the case that this is expressly agreed between the clients when the lawyer is engaged; although this will normally be implied in the absence of express agreement.

    In the case of joint interest, a waiver will not be held to occur where a privileged communication is sent to a third party who shares a joint interest in the subject matter of the privileged communication at the point when the communication comes into existence, for example, a parent company and its wholly owned subsidiary or as between trustees regarding trust matters. Where a joint interest exists, both parties are obliged to disclose to the other the content of the communication under which joint interest is claimed, neither party can maintain a claim of privilege as against each other in respect of the communications coming into existence when the joint interest exists and both parties can assert privilege as against the rest of the world. Parties cannot waive the privilege unilaterally; privilege can only be waived jointly by all parties claiming joint interest privilege.

    In addition, privilege will not be lost where a privileged communication is disclosed to a third party who shares a common interest in the subject matter of the communication. Where a common interest is established, both parties will be able to assert privilege in respect of the communication (except as against each other). The common interest must exist at the time when the documents were obtained by the third party (as opposed to when the communication comes into existence, as is the case for joint interest privilege). While it has been held that parties sharing common interest should be treated as if they were partners in a single firm (Buttes Gas and Oil Co v Hammer [1981] QB 223), a more liberal approach is now being adopted to the concept of common interest. Common interest privilege is likely to arise between an insurer and insured, a parent company and its wholly owned subsidiary, a company and its shareholder(s) and between a principal and agent. As for whether the privilege can be waived unilaterally, a wider approach has been exhibited in Australia and it has been considered that it will not always be necessary for the parties who share the common interest to agree for privilege to be waived (Patrick v Capital Finance Corp (Austr) Pty Ltd [2004] FCA 1249).

    Note that privilege is not necessarily lost if privileged material is shared on a limited waiver basis with a third party where there is no common interest (see question 17).  

  37. 19.Is it common for attorneys and clients to agree to a confidentiality provision in a contract?
  38. While it is standard practice that a confidentiality clause is included in any terms of engagement between a lawyer and a client, under the rules of professional conduct, lawyers have in any event a legal and professional duty to hold in strict confidence all information concerning the business and affairs of their clients acquired in the course of the professional relationship.

    Enforcement considerations

  39. 20.Describe the legal basis of the rules governing the privilege. Are these rules found in a constitution or statute, or in case law?
  40. The right of a client to confidential legal advice is enshrined in article 35 of the Basic Law, which serves as the constitutional document for the Hong Kong Special Administrative Region. Article 87 of the Basic Law provides that the principles applied in Hong Kong before the return of Hong Kong to Chinese sovereignty and the rights previously enjoyed by parties to proceedings shall be maintained. This includes the right to legal professional privilege. In addition, the International Covenant for Civil and Political Rights, which has been incorporated into Hong Kong law by virtue of the Bill of Rights Ordinance, recognises legal professional privilege as a fundamental human right. Apart from these safeguards, the rules governing legal professional privilege are found in the common law of the Hong Kong and English courts. In addition, the law on privilege has received statutory confirmation in a number of instances where a government department is given power to obtain information, but a lawyer is protected from answering when the privilege exists (for example, section 18 of the Independent Commission Against Corruption (ICAC) Ordinance).

  41. 21.Is the privilege primarily characterised as a procedural or evidentiary rule, or is it characterised as a substantive right? 
  42. Legal professional privilege is a substantive right and is not limited to a right that may be asserted only in the context of civil or criminal proceedings. It is therefore not simply a rule of evidence. 

  43. 22.Describe any differences in how the privilege is applied in the criminal, civil, regulatory or investigatory context. 
  44. Express provision is made for the preservation of privilege in respect of legal advice in various regulatory statutes. Where a lawyer-client communication is held at a client’s premises and meets the dominant purpose test it will generally be privileged from production to such regulatory and investigative bodies. Any exception to this rule would have to be explicitly supported by primary legislation (see questions 7 and 13). Under section 13 of the Prevention of Bribery Ordinance, the Commissioner for the ICAC may authorise an investigatory officer to seize all relevant accounts, books and documents relating to the matter under investigation. Section 15 of the same Ordinance excludes documents in the possession of a legal adviser from this requirement, but documents held at a client’s premises may not fall within this category. Moreover, in line with the court’s decision in Citic Pacific Ltd v Secretary for Justice [2012] 2 HKLRD 701 (see question 17), privilege over documents provided to a regulatory authority for the purposes of its investigation will be waived only for the limited purpose of enabling the regulatory authority to conduct that investigation. However, to ensure that the waiver of privilege is indeed limited and otherwise continues to be maintained in respect of the relevant documents, that position should be expressly asserted at the time the relevant documents are provided to the regulatory authority.

  45. 23.Are the rules regarding the privilege uniform nationwide or are there regional variations within your country?
  46. The relevant rules are uniform.

  47. 24.Does a professional organisation enforce the maintenance of the privilege among attorneys? What discipline do attorneys face if they violate privilege rules?
  48. A lawyer has a duty to hold in strict confidence all information concerning the business and affairs of his or her client acquired in the course of the professional relationship. Under the rules of professional conduct, the lawyer must not divulge such information unless disclosure is expressly or impliedly authorised by the client or required by law or unless the client has expressly or impliedly waived the duty. The Law Society of Hong Kong can investigate any instance of misconduct against any lawyer and institute any disciplinary proceedings. Such misconduct would include the violation of legal professional privilege rules. The Council of the Law Society is empowered to refer allegations of professional misconduct to the Solicitors Disciplinary Tribunal under the Legal Practitioners Ordinance. 

  49. 25.What sanctions do courts impose for violating the attorney–client privilege? 
  50. In Hong Kong, it is the Solicitors Disciplinary Tribunal (and not the courts) that may impose sanctions on lawyers for professional misconduct, in particular with regard to legal professional privilege (see question 24). The Tribunal has a wide range of powers to make orders in disciplinary proceedings and can prohibit or suspend a lawyer from practice or order payment of a penalty of up to HK$500,000.

  51. 26.How can parties invoke the privilege during investigations or court proceedings? Can the privilege be invoked on the witness stand?
  52. In relation to court proceedings, during the pretrial phase, each party must disclose to the other party all documents that are or have been in their possession, custody or power relating to matters in question in the action. During this process, a party can withhold a document from production on the basis of legal professional privilege but must state the basis on which they make this claim in the list of documents disclosed. The court may inspect the relevant document in question to decide whether the claim (or any objection held by the other side) is valid (Rules of the High Court, O. 24, r. 13 (2)). A witness may also invoke legal advice privilege in response to questions that fall within the scope of the privilege.

    Legal advice privilege can generally be asserted in response to any demand for documents by a financial regulator or other public authority (see question 4). In practice, however, the party under investigation may decide to cooperate with the relevant authority and waive privilege in relation to certain documents requested as against the authority only (a limited wavier). However, as explained at question 22, to ensure that the waiver of privilege is indeed limited and otherwise continues to be maintained in respect of the relevant documents, that position should be expressly asserted at the time the relevant documents are provided to the authority.

  53. 27.In disputes relating to privilege, who typically bears the burden of proof? 
  54. The burden of proof is on the party claiming privilege. However, where privilege is waived, any questions of doubt are to be resolved in favour of upholding the privilege.

  55. 28.Does the privilege protect against compulsory disclosures such as search warrants or discovery requests? Is there a distinction between documents held by the client and documents held by the attorney? 
  56. As a substantive right, legal professional privilege can generally be asserted in answer to any demand for documents (see question 21). Where a warrant permits a police officer or other authority to legitimately seize confidential documents, a lawyer should comply with the terms of the warrant; however, if the documents are subject to legal professional privilege, an application can be made to have the order or warrant set aside. In these circumstances, an application may be made to the court for an interim order keeping the seized documents in locked premises and prohibiting the police officer or other authority from making use of them pending the determination of the setting-aside application. The court will consider, among other relevant concerns, the extent to which delay in obtaining the documents would be contrary to the public interest (ie, if an investigation is under way) against frustrating the setting-aside application (Apple Daily Ltd v Commissioner of the ICAC [2000] 1 HKLRD 595).

  57. 29.Describe the choice-of-law rules applied by your courts to determine which country’s privilege laws apply. To what extent does your country recognise the validity of choice-of-law provisions in contracts, particularly as they apply to privilege?
  58. The law of the forum determines whether or not privilege applies to a document or communication and therefore Hong Kong law will apply in relation to litigation in Hong Kong. This principle was confirmed by the Court of Appeal in Super Worth (although the Court of Appeal did note that there was room for flexibility). Legal commentary suggests that this principle may indeed be subject to the exception that the privilege may be based on an express or implied contract and the contractual conflict of law rules should apply to determine the appropriate governing law.

    Termination of the privilege

  59. 30.Does the privilege terminate on the death of either the attorney or the client?
  60. Privilege survives the death of the client and may endure for the benefit of his or her successor in title. As the privilege belongs only to the client and not to his or her lawyer, it does not terminate on the death of the lawyer.

  61. 31.Does the privilege terminate on the conclusion of the attorney-client relationship?
  62. The duty of confidentiality and the right to claim legal professional privilege survives the professional relationship and will continue after a lawyer has ceased to act for a client.

  63. 32.Is the privilege destroyed if the client communicates information to the attorney to further a crime or perpetuate a fraud?
  64. Both legal advice privilege and litigation privilege may be lost if the communication or document in question came into existence for the purpose of furthering a criminal or fraudulent purpose (see question 7). However, a mere suspicion of fraud is not enough; the court must be satisfied that there is a real basis for a case of fraud (or other criminal purpose).

  65. 33.Is the privilege terminated if the attorney makes an inadvertent disclosure? If such a disclosure is made, can the attorney retrieve the privileged information or otherwise correct the error?
  66. Where privileged documents are inadvertently disclosed, privilege is not necessarily lost. If the documents are inspected by the other side in circumstances such that the inspecting party must have realised that a mistake had occurred, but sought to take advantage of that mistake, the court has power under its equitable jurisdiction to intervene and order the inspecting party to return all copies of the privileged documents and to grant an injunction prohibiting use of the information contained in or derived from the documents. The court may refuse to grant injunctive relief in circumstances where the documents disclosed constituted evidence of fraud or illegality by the party mistakenly disclosing them.

    It should be noted that the extent to which these documents can be used by the opposing party in support of his or her case is a matter of admissibility, not legal professional privilege.

    Where it is obvious to a lawyer that documents have been inadvertently disclosed to him or her, he or she should immediately stop reading, inform the other side and return the documents. 

  67. 34.Is the privilege terminated if a third party is included in the communication or is subsequently forwarded the communication?
  68. If a third party hears or reads a communication between the lawyer and client the communication is no longer confidential and therefore privilege will be lost. However, if the communication is disclosed to a limited number of third parties on express terms that it was to remain confidential and is not to be (and does not in fact become) generally available outside that limited group, then privilege will not necessarily be lost.

     

    **Note that in the absence of Hong Kong authorities, English common law will be followed. English cases have been referred to on that basis in this article.**

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Questions

    Scope of the privilege

  1. 1.Are communications between an attorney and client protected? Under what circumstances?
  2. 2.Does the privilege only protect legal advice? Does it also protect non-legal communications between an attorney and client, such as business advice?
  3. 3.Is a distinction made between legal advice related to litigation and other legal advice?
  4. 4.

    What kinds of documents are protected by the privilege? Does it cover documents that were prepared in anticipation of an attorney-client communication? Does it cover documents prepared during an attorney-led internal investigation?


  5. 5.To what extent must the communication be confidential? Who can be privy to the communication without breaking privilege?
  6. 6.Is the underlying information privileged if it can be obtained from a non-privileged source?
  7. 7.Are there any notable exceptions or caveats to the privilege?
  8. 8.Are there laws unrelated to privilege that may protect certain communications between attorney and client?
  9. Protected parties

  10. 9.To what extent does the privilege extend to in-house counsel? 
  11. 10.Does the privilege protect communications between an attorney and a corporate client’s employees? Under what circumstances?
  12. 11.

    Does the privilege protect communications between non-lawyer employees of a corporate client if they are acting at the direction of counsel or gathering information to provide to counsel?


  13. 12.Must the attorney be qualified to practise in your country to invoke the privilege?
  14. 13.

    Does the privilege extend to non-lawyer third parties? In which circumstances does the privilege protect communications with third parties if they are providing advice related to a legal matter?


  15. 14.Does the privilege apply to communications with potential clients?
  16. Ownership of the privilege

  17. 15.Does the attorney or the client hold the privilege? Who has rights under the privilege? 
  18. 16.Can the privilege be waived? Who may waive it?
  19. 17.Is waiver all or nothing? Is it possible to waive the privilege for certain communications but not others?
  20. 18.If two defendants are mounting a joint defence, can they share privileged information without waiver? What about two parties with a common interest?
  21. 19.Is it common for attorneys and clients to agree to a confidentiality provision in a contract?
  22. Enforcement considerations

  23. 20.Describe the legal basis of the rules governing the privilege. Are these rules found in a constitution or statute, or in case law?
  24. 21.Is the privilege primarily characterised as a procedural or evidentiary rule, or is it characterised as a substantive right? 
  25. 22.Describe any differences in how the privilege is applied in the criminal, civil, regulatory or investigatory context. 
  26. 23.Are the rules regarding the privilege uniform nationwide or are there regional variations within your country?
  27. 24.Does a professional organisation enforce the maintenance of the privilege among attorneys? What discipline do attorneys face if they violate privilege rules?
  28. 25.What sanctions do courts impose for violating the attorney–client privilege? 
  29. 26.How can parties invoke the privilege during investigations or court proceedings? Can the privilege be invoked on the witness stand?
  30. 27.In disputes relating to privilege, who typically bears the burden of proof? 
  31. 28.Does the privilege protect against compulsory disclosures such as search warrants or discovery requests? Is there a distinction between documents held by the client and documents held by the attorney? 
  32. 29.Describe the choice-of-law rules applied by your courts to determine which country’s privilege laws apply. To what extent does your country recognise the validity of choice-of-law provisions in contracts, particularly as they apply to privilege?
  33. Termination of the privilege

  34. 30.Does the privilege terminate on the death of either the attorney or the client?
  35. 31.Does the privilege terminate on the conclusion of the attorney-client relationship?
  36. 32.Is the privilege destroyed if the client communicates information to the attorney to further a crime or perpetuate a fraud?
  37. 33.Is the privilege terminated if the attorney makes an inadvertent disclosure? If such a disclosure is made, can the attorney retrieve the privileged information or otherwise correct the error?
  38. 34.Is the privilege terminated if a third party is included in the communication or is subsequently forwarded the communication?