Privilege "Past, Present and Yet to Come"

"Hong Kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts, and to judicial remedies." (Article 35 of The Basic Law)

"No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation." (Article 14(1) of the Bill of Rights Ordinance, Cap. 383) [Emphasis added]

In times past (perhaps, simpler times) both limbs of legal professional privilege (legal advice privilege and litigation privilege) were generally "taken as read" and not controversial.

Legal advice privilege is an inalienable right of all individuals and legal entities. It is the right to confidentiality in all communications passing between a lawyer and his or her client that evidence legal advice. In the past, it has generally been understood to cover a wider array of communications and documents but (relatively speaking) a narrower set of players compared with litigation privilege. It is not subject to any competing policy.

Things unfortunately became unnecessarily complicated in more recent times when courts in some common law jurisdictions (commendably, by and large, not in Hong Kong) apparently confused legal advice privilege with litigation privilege; for example, suggesting that the former should only be claimed in a contentious setting. That was mistaken.

Furthermore, at present, there is confusion on the part of courts in some common law jurisdictions as to the meaning of "client" in a corporate context when considering legal advice privilege. This makes it particularly important for legal representatives to be aware of the risks when handling cross-border matters.

It is all rather odd because had litigation privilege been properly applied in the past the mistakes of Three Rivers (No.5) (concerning legal advice privilege) might never have happened. Litigation privilege applies to communications and documents created for the dominant purpose of anticipated or actual litigation or adversarial proceedings. It usually covers a wider set of players compared with legal advice privilege.

Currently, in Hong Kong, both limbs of legal professional privilege are generally given a wide and purposive application (as befit fundamental rights), albeit on a case by case basis.

Given an increase in regulatory oversight and (separately) an increased threat to the confidentiality of communications generally, especially as between legal representatives and their clients, there will be more legal challenges to come.

Going forwards it can only be hoped that, following (for example) the recent judgment of the English Court of Appeal in SFO v ENRC Ltd and the landmark judgment of the Hong Kong Court of Appeal in Citic Pacific Ltd (No. 2) in 2015, all relevant stakeholders will remain vigilant. The Law Society of England & Wales has had to intervene in some of the relevant English appeal cases.

Legal professional privilege is not some competitive advantage. It is not a convenience (or an inconvenience) or a lawyer's "trick". It is a fundamental common law right of all individuals and legal entities that is underpinned by the administration of justice. It may be as well to remember this in times "yet to come". 

Editorial Note: Also see Article 30 of The Basic Law – Prohibition against arbitrary covert surveillance.

The information provided here is intended to give general information only. It is not a complete statement of the law. It is not intended to be relied upon or to be a substitute for legal advice in relation to particular circumstances.

Jurisdictions: 

Partner, RPC

Senior Consultant, RPC