Hong Kong as a Benchmark for Privileges and Immunities

Business folk about to travel the “Belt and Road“ might do well to compare certain privileges and immunities available in civil proceedings in Hong Kong with those available in a variety of other jurisdictions.

While civil litigation may not be at the forefront of the average business traveller's mind, it is worth noting that some jurisdictions have quite different adversarial or inquisitorial characteristics. For example, the state of certain privileges and immunities in some jurisdictions is in a terrible mess*. By comparison, Hong Kong adopts a generally traditional and, importantly, more consistent approach; therefore, making it an attractive and a leading jurisdiction for civil and commercial disputes. Features of Hong Kong’s approach are outlined below.

Legal Advice Privilege

Known as "solicitor client" or "attorney client" privilege in some parts of the world. The courts in Hong Kong give this privilege a wide meaning, as befits a fundamental right. A confidential document or communication is protected from inspection by another party where it is created for the sole or dominant purpose of obtaining legal advice. "Legal advice" has a wide meaning. The advice must be given by a qualified lawyer. Those English cases that adopt a restrictive approach to the meaning of "client" in a corporate context are not good law in Hong Kong**.

Litigation Privilege

This privilege protects evidence collected for the sole or dominant purpose of adversarial proceedings. It can overlap with legal advice privilege but the two privileges are different and it is important not to confuse them. Both privileges are branches of what is called "legal professional privilege". Traditionally in Hong Kong, litigation privilege includes a wider range of persons but a narrower range of documents compared with legal advice privilege. A recent trend has been for the courts in Hong Kong to scrutinise claims to litigation privilege more carefully (see Industry Insights, November, 2015 “A Tale of Two Privileges“).

Privilege Against Self-Incrimination

Privilege Against Self-Incrimination (“PASI”) (which applies in civil proceedings in Hong Kong) has been acknowledged to exist in two Court of Appeal judgments in 2016 and is also a creature of statute. There are some practical problems with claiming the privilege. However, the state of PASI in Hong Kong is in better shape than (for example) in England.

Without Prejudice Privilege

This rule of evidence (also referred to as "WPP" or "WP") is in rude health and goes from strength to strength as Hong Kong develops its mediation and disputes resolution capabilities. The privilege goes to the heart of the confidentiality of communications made in a genuine attempt at settlement. The confidentiality of "mediation communications" also has a statutory footing (Mediation Ordinance (Cap. 620)), although (for now) it may be a bit of a stretch to say that there is a wider common law concept of "Mediation Privilege" in Hong Kong. (Aside: WPP has nothing to do with WhatsApp ("WAPP"), although (for now) WAPP appears to be a relatively secure means of personal communication while on the move).

Advocate's Immunity

An advocate's limited immunity from suit exists in Hong Kong, although is likely to feature in a major appeal case one day. When that day comes, the smart money is probably on the immunity surviving (although, perhaps, in a more restricted manner similar to the jurisprudence of the Australian High Court, as opposed to that of, for example, the UK Supreme Court).

Expert Witness Immunity

The working assumption and convention is that this immunity exists in Hong Kong and any change to the position should be a matter for legislation.

Take-Away Points

Business folk should travel light and consider taking their lawyer with them. They should also consider whether they will be afforded similar privileges (not to mention hospitality) as they would in Hong Kong.

* For example, see Charles Hollander QC on “Documentary Evidence in Hong Kong”, Ch.19.001 (fn 1), referring to the sorry state of the privilege against self-incrimination in England.

** At the time, it was hoped that these English cases would be confined to history. However, it looks increasingly likely that it will take a well-resourced party to challenge these cases on an appeal to the UK Supreme Court. Until then, the state of legal advice privilege for corporates under English law is in something of a mess (and lags the development of fundamental rights for corporates).


Senior Consultant, RPC