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HCCM 425/2020
[2021] HKCFI 1801
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONFIDENTIAL MISCELLANEOUS PROCEEDINGS
NO 425 OF 2020
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IN THE MATTER of Schedule 7 of the Implementation Rules for Article 43 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region |
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and |
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IN THE MATTER of an Application Pursuant to Schedule 7 paragraph 3(7) of the Implementation Rules for Article 43 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region |
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| BETWEEN |
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A |
1st Applicant |
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B |
2nd Applicant |
and |
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Commissioner of Police |
Respondent |
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| Before: |
Hon Alex Lee J in Chambers (Not open to public) |
| Dates of Hearing: |
30 April 2021 |
| Date of Ruling: |
22 June 2021 |
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RULING
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Introduction
1. This is about two summonses[1] taken out by the Applicants, pseudonymously referred to as A and B. The Applicants apply for variation of two Production Orders (“Production Orders”)[2] issued under Schedule 7 of the Implementation Rules (“IR”) for Article 43 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (“NSL”). The application was heard in camera: see s6, Sch 7 of the IR; r6, O116, RHC. Usually, judgments/ rulings of hearings of this nature will not published. However, since the matter concerns the interpretation of certain provisions in the NSL and the IR which would be of interest to the public, having heard counsel, it is decided that a redacted version of this Ruling will be prepared for the purpose of publication. The parties are given the full version.
2. At the hearing of the 1st Summons on 22 February 2021, which was basically a direction hearing, it was ordered, among other things, that the Applicants were to secure the material(s) on which legal professional privilege (“LPP”) and/or journalistic materials (“JM”) is claimed in sealed container(s) in the presence of a police officer of National Security Department and deposited the sealed container(s) (“Sealed Materials”) with the Court. Directions were also given for the filing and service of further affirmations and skeleton arguments.
3. Subsequently, by the 2nd Summons the Applicants seek an order/ declaration that (i) the Sealed Materials are subject to LPP and/or JM; (ii) they be returned to the Applicants; and (iii) costs.
Issues
4. A preliminary issue for this court to decide is whether any of the documents contained in the Sealed Materials are subject to LPP and/or JM. This is because:
(i) if there are documents which are subject to LPP, then those documents would have to be returned to the Applicants: s3(4)(c)(ii) and s3(10)(a), Sch 7, IR; and
(ii) if none of the documents are either subject to LPP or JM, then the applications would simply fall apart and no further consideration would be necessary.
5. The following issues, however, may arise if there are documents in the Sealed Materials which are not subject to LPP but are JM:
(i) whether Part XII of the Interpretation and General Clauses Ordinance (“IGCO”), Cap 1, is directly applicable;
(ii) if not, whether a scheme similar to Pt XII of the IGCO shall be read into Sch 7 of the IR; and
(iii) if not, to what extent, if any, the court may take into account the materials sought might include JM.
The Preliminary issue - LPP
Documents in dispute
6.
7. It is asserted that the Applicants’ Legal Department is often consulted from time to time concerning a whole range of varying legal issues. On this basis, the deponent says:
“I have been advised and verily believe that part of the Whatsapp conversation, namely messages on 29 June 2020 and 21 July 2020, relates to legal advice privilege, namely internal legal advice given by the Applicant’s Legal Department which was disclosed in those messages.”
8. Since the Commissioner does not have access to the items in dispute, he is not in a position to transverse the Applicants’ assertion above, save and except to reiterate the relevant legal principles.
Legal principles
9. I gratefully adopt the following summary prepared by Ms Cheung (and with her, Ms Pang), counsel for the Commissioner, of the relevant legal principles on legal advice privilege which, I understand, are not in dispute[3]:
(1) Legal advice privilege attaches to communications between a client and his lawyer, where the lawyer is acting in the course of his professional relationship and within the scope of the lawyer’s professional duties, under conditions of confidentiality, and for the purpose of enabling the client to seek, or the lawyer to give, legal advice or assistance in a relevant context: Passmore on Privilege, 4th ed (2020), at §2- 003.
(2) LPP does not cover all communications between lawyer and client. The applicable test in Hong Kong is whether the document was produced or brought into existence with the dominant purpose that it or its contents be used to obtain legal advice: Citic Pacific Ltd v Secretary for Justice (No 2)[4].
(3) Lawyers do not cease to be regarded as professional legal advisers simply because they are employed by their clients, for example in a company’s legal department, but in the nature of things those who are employed in that capacity are more likely than independent practitioners to become involved in aspects of the business that are essentially managerial or administrative in nature. To that extent it is less easy to maintain that all communications passing between them and the company’s management attract privilege: United States of America v Philip Morris Inc & Anor[5].
(4) Whether communication between an employer and members of his internal legal department is subject to LPP depends on the capacity in which the lawyer is acting and the context of the communication:
(i) if a solicitor becomes the client’s “man of business” responsible for advising the client on all matters of business, the advice may lack a relevant legal context: Three Rivers District Council and others v Governor and Company of the Bank of England (No. 6)[6]; and
(ii) the lawyer’s job title is one indication, but even when employed as a lawyer, a helpful indication of whether he is acting in that capacity might be whether the communication involves the use of skills for which an external lawyer could claim privilege. If so, then his communications are likely to be privileged. If not, this may well suggest he is acting in a non-legal or executive capacity: Passmore on Privilege, ante, at §4-084.
(5) Where privileged material is communicated to a third party, there is an issue as to whether privilege has been waived: The court would consider whether the disclosure to the third party was “attended by a degree of confidentiality” such that “there was no waiver vis-à-vis the outside world”: USP Strategies Plc & Another v London General Holdings Ltd & Others [7]. Whether there had been a waiver is essentially a question of fact much which must be determined by reference to all the circumstances, including what was expressly or impliedly communicated between the person sending, and the person receiving, the documents in question, and what they must or ought reasonably to have understood: Citic Pacific Ltd v Secretary for Justice[8].
(6) However, privilege does not attach to communications between lawyer and client if the purpose of the client in seeking legal advice is to facilitate criminal or fraudulent conduct: R v Cox and Railton[9]. Therefore, if a client applies to a legal adviser for advice intended to facilitate or to guide the client in the commission of a crime or fraud, the legal adviser being ignorant of the purpose to which his advice is wanted, the communication between the two would not be privileged: Citic Pacific Ltd v Secretary for Justice[10].
(7) The Court may exercise its power to order disclosure if there is a prima facie case that the fraud or crime existed and that the documents concerned came into existence as part of the fraud or crime: see Citic Pacific Ltd v Secretary for Justice[11], ante, citing R v Gibbins[12].
10. As to the law, Mr Harris, SC (and with him, Mr Wong), counsel for the Applicants, submits that there is no basis for the Commissioner to assert that the “fraud exception” applies.
Inspection by the court
11. As aforesaid, the Commissioner is not in a position to make any substantive arguments without the sight of the disputed items. Therefore, it falls on this court to inspect the disputed items to see the validity of the Applicants’ claim.
12. I bear in mind the aforesaid legal principles. Having inspected the items under consideration, I find that some documents are included in more than one item. For obvious reasons, I cannot go into details of what were said in the disputed items. What I can say is that the redacted Whatsapp exchanges between [X] and [Y] and the internal emails of the Applicants concerned were all about the employee seeking advice from the Applicants’ Legal Department in the latter’s capacity as “lawyer”.
13. Furthermore, having considered the contents of the items, I find that there is not a prima facie case that the items in dispute came into existence as part of any fraud or crime. This is so, even if one were to look at the disputed items in the light most favourable to the prosecution. For the avoidance of doubt, I should say that in coming to the aforesaid conclusion, I already have regard to what is...
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