In the first case of its kind, the Court of First Instance of the High Court in A & B v Commissioner of Police  HKCFI 1801 has upheld a claim to legal advice privilege with respect to inhouse lawyers’ communications, in the context of an order for production granted pursuant to Schedule 7 of the Implementation Rules for Article 43 of the National Security Law. A related claim to “journalistic material” was rejected. The outcome in the case is important.
LEGAL PROFESSIONAL PRIVILEGE
Claims to legal professional privilege are recognised in Schedule 6 (interception and surveillance) and Schedule 7 (provision of information and production of materials) of the Implementation Rules. Legal professional privilege refers to legal advice privilege and litigation privilege. In A & B v Commissioner of Police, the claim to privilege was made out given that the applicant’s inhouse legal department’s communications evidenced legal advice. Once the claim was successful there was no competing policy that could override the privilege – in that sense, legal professional privilege is not just a fundamental right it is also absolute, unless overridden in legislation by clear words or necessary implication (which would be very rare in Hong Kong).
As the Law Society of Hong Kong notes in its statement (dated 11 June 2020) on “Preliminary Observations” regarding the National Security Law (paragraph 10):
“We add that nothing in the Legislation should interfere with communications protected by legal professional privilege. Legal professional privilege is safeguarded pursuant to the Basic Law and is a fundamental common law right of all legal persons, which is not subject to any competing policy”.
The reference to the words “not subject to any competing policy” is illustrative of the absolute nature of the protection afforded by legal professional privilege and is consistent with appellate court case law in jurisdictions such as (for example) Hong Kong SAR and England and Wales.
Some related points are also worth noting.
- The protocol for handling claims to legal professional privilege in the context of orders for production obtained by law enforcement agencies is set out in the landmark case of Citic Pacific (No. 2)  4 HKLRD 20.
- Given the claim to legal professional privilege in A & B v Commissioner of Police and the role of the court in inspecting the sealed items, not much is known about the documents in dispute. However, it does not appear that litigation privilege was in issue – that is, therefore, a matter for another day in another case.
- A claim to legal professional privilege needs to be supported by a sworn statement setting out the basis for the claim with respect to each document. Properly understood, it is difficult for a court to determine a claim to legal professional privilege without reference to what a client and their lawyers know or understand the position to be.
- A communication made in furtherance of a crime cannot be protected by legal professional privilege – the so-called “fraud/crime exception”. This is not so much an exception; rather, it illustrates the point that such a communication is not privileged.
- Section 13 of Schedule 6 of the Implementation Rules identifies “exceptional circumstances” where the police may be authorised to conduct covert surveillance of a lawyer. In short, there would have to be reasonable grounds to believe (for example) that the lawyer or other persons working or residing with them had committed an act that is a threat to national security or that a communication was made in furtherance of a criminal purpose – even then, information that is subject to legal professional privilege remains privileged.
The claim to “journalistic material” was rejected in A & B v Commissioner of Police; apparently, the material was not journalistic. The court also noted that, unlike Schedule 6 of the Implementation Rules, there was no definition of journalistic material in Schedule 7 – however, given the importance attached to freedom of the press, the court considered that such an expression (“journalistic material”) should be given a generous interpretation, albeit in the context of the self-contained regime for the grant of orders for production pursuant to Schedule 7. In contrast, Schedule 6 adopts the same meaning of journalistic material as that contained in section 82 of the Interpretation and General Clauses Ordinance (Cap. 1).
The upshot of this is that journalistic material is not protected in the same manner as communications or material covered by legal professional privilege. However, where the police apply for authorisation to conduct covert interception or surveillance (pursuant to Schedule 6) they must disclose in advance whether it is likely that information that may be journalistic material will be obtained. In contrast, in A & B v Commissioner of Police, the court appears to have accepted that while Schedule 7 makes no express reference to journalistic material, the fact that such material is sought is relevant when considering whether to grant or vary an order for production.
Journalists, much like (for example) accountants, doctors, tax advisers, financial advisers or even feng shui masters or priests, often deal with confidential information – some may even purport to give legal advice from time to time. However, only communications with a lawyer acting as such attract the protection afforded by legal advice privilege. The privilege is not some sort of competitive advantage for the legal profession – rather, it reflects the absolute nature of a right that is confined to lawyers and their clients in order to keep it within permissible boundaries.