HKSAR v. Kan Kwai Fong

HCCC 210/2019

[2020] HKCFI 2917

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 210 OF 2019

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REASONS FOR RULING

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1.This application arose when the prosecution, Mr Arthur, invited the defence expert, Dr Li, to produce copies of the defendant’s proof of evidence dated 11 August 2019 and 29 October 2019 which had been sent to Dr Li for his perusal in the preparation of his psychiatric report on the defendant. Mr Arthur had, prior to the trial, applied for disclosure of the documents under section 65DA(1)(b) of the Criminal Procedure Ordinance. After hearing, arguments from both counsel, this court ruled that the proof of evidence of the defendant is a privileged document and that the defence had not waived this privilege by releasing the document to their own psychiatrist in order to prepare his report. I had gone on to say that the prosecution will have a chance to cross‑examine the defence expert and therefore the non‑disclosure prior to trial would not cause prejudice to the prosecution whereas “the alternative is highly undesirable”.

2.At the cross‑examination of Dr Li, Mr Arthur sought to revisit this issue again on the basis that he is hampered in his cross‑examination without to knowing what the contents of the proof of evidence was that Dr Li had sight of.  And therefore in fairness to the prosecution, the proof of evidence should be disclosed to the prosecution in the circumstances.

3.As Mr Sherry submitted, the Court of Final Appeal in HKSAR v Wong Chi Wai, FACC 10/2012 at para 34 cited with approval the observation of Lord Taylor of Gosforth in R (ex‑parte B) v Derby Magistrates’ Court [1996] appeal AC 487 at 507 that “the principle which runs through all these cases . . . is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth.  The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent.  Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case.  It is a fundamental condition on which the administration of justice as a whole rests.”

4.Application refused.

Mr Michael Arthur, Counsel on fiat, for HKSAR

Mr James Sherry, instructed by K B Chau & Co, assigned by the Director of Legal Aid, for the defendant