Mk v. Registrar of High Court

HCAL 2433/2019

[2021] HKCFI 1821

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2433 OF 2019

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BETWEEN

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Before: Hon K Yeung J in Court

Dates of Hearing: 18 September and 18 December 2020

Date of Judgment: 23 June 2021

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JUDGMENT

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A. Introduction

1.This is the rolled-up hearing of the leave application and judicial review application made by the applicant (“MK”).  MK seeks thereby to challenge the decision of the Master (the “Master”, and the “Master Decision”) in LAA 583/2019 (the “Legal Aid Appeal”) dismissing her appeal against the decision of the Director of Legal Aid (“DLA”) made on 5 August 2018 revoking the legal aid certificate granted to her on 25 July 2018 (the “DLA Decision”).  The DLA is the putative interested party.

2.The proceedings in respect of which MK sought legal aid were HCAL 1077/2018 (“HCAL 1077”).  HCAL 1077 relates to same-sex relationships in Hong Kong.  We are not concerned with the details of that application, save that MK’s partner has been referred to as Madam C.

3.The application for judicial review in HCAL 1077 has been heard by Chow J (as he then was).  Judgment has been handed down.  MK was on private representation after the revocation of the legal aid certificate.  No point has been taken that this present application has been rendered academic thereby. Again we are not concerned with those details.

4.Two grounds have been raised.  One relates to the important issue as to whether Regulation 21 of the Legal Aid Regulations Cap 91A (“Reg 21”, and “LAR”) under the Legal Aid Ordinance Cap 91 (“LAO”) abrogates legal professional privilege (“LPP”).  The other one goes to the evaluation of the evidence by the Master.

5.Mr Erik Shum with Ms Queenie Ng appeared for MK.  Ms Jess Chan, Senior Government Counsel, appeared for the DLA.

B. Relevant affirmations

6.There are before me the following main affirmations:

(a) Filed specifically for the purpose of the present judicial review proceedings:

(i) MK’s 1^st affirmation in support of her Form 86 (“MK/Aff 1”);

(ii) the affidavit of Ms Samantha Ngai (“Ms Ngai”) in opposition (“Ngai Aff”).  Ms Ngai is the Senior Legal Aid Counsel in the Application & Processing Division of the Legal Aid Department responsible for processing applications for legal aid in civil cases;

(iii) MK’s 2^nd affirmation in reply (“MK/Aff 2”);

(b) Filed for the purpose of the Legal Aid Appeal:

(i) MK’s affirmation of 21 May 2019 (“MK/LA Aff”);

(ii) Madam C’s affirmation;

(iii) the affirmation of Mr Hectar Pun SC (“Mr Pun”) of 22 May 2019 (“HP/Aff”).

C. Judicial review not a second tier appeal

7.This court reminds itself of this.  The legal aid scheme is administered by the DLA under the LAO.  Though there is an avenue of appeal to a master, that appeal is administrative in nature.  In a judicial review of the decision of a master in a legal aid appeal, the court is not sitting as a further tier of appeal.  The court’s function is confined to reviewing the legality, rationality and fairness of the process.  The focus of the judge is the decision of the master — see Chan Chiu Kwan v Registrar of the High Court [2015] 1 HKC 533, per Lam VP at §8, and Xu Fangwen v Registrar of the High Court [2019] HKCFI 2332, per Chow J (as he then was) at §20.

D. Factual background

8.This case involves a number of lawyers.  They are:

(a) Mr Pun;

(b) Mr Gene Bond Ng (“Mr Ng”) of Messrs Bond Ng Solicitors (“BNS”);

(c) Mr Anson Wong (“Mr Wong”), counsel; and

(d) Ms Tina Mok (“Ms Mok”), counsel.  Ms Mok is a personal friend of MK.

9.On 5 June 2018, MK and Madam C attended a conference (the “5/6 Conference”) with inter alios Mr Pun, Mr Wong, Mr Ng and Ms Mok.

10.According to MK[2], the purpose of the 5/6 Conference was for Madam C and her to obtain legal advice on the merits of the intended judicial review, and which of them (Madam C or MK) should apply for legal aid.

11.On 8 June 2018, and on application, Chow J made an anonymity and non-disclosure order.

12.On 12 June 2018, Form 86 under HCAL 1077 was filed.

13.On 13 June 2018, Chow J on paper granted leave to apply for judicial review.

14.On 3 July 2018, MK applied for legal aid.

15.On 25 July 2018, legal aid certificate was granted to MK.

16.On 8 August 2018, Mr Ng was assigned by the DLA to be MK’s solicitor.

17.On 21 August 2018, Mr Pun was assigned by the DLA as the leading counsel for MK.

18.On 23 August 2018, Ms Mok was assigned by the DLA as junior counsel for MK.

19.Mr Wong has not at any stage been assigned by the DLA as counsel for MK.

20.In the meantime, MK through BNS on a number of occasions requested reassignment of leading counsel. 

21.I at this stage record this.  In MK/LA Aff, and with reference to inter alia those requests for reassignment, MK made certain allegations of “suspected ulterior motive behind” apparently against Mr Pun and Mr Wong.  In the course of the hearing, Mr Shum made it very clear that those applications for reassignment were only referred to as background leading to the reassignment of the counsel team.  He is not arguing any case of ulterior motives.

22.On 9 January 2019, Ms Gladys Li SC and Ms Linda Wong were reassigned as the leading and junior counsel.

23.On 22 January 2019, the DLA received an anonymous email which stated that MK and her partner jointly owned and operated a pet shop.  The writer queried why MK had been granted legal aid, and whether her legal representatives had assisted her in concealing her financial resources.

24.On 31 January 2019, the DLA received an email from Mr Wong. He informed the DLA that he had received an email which made inter alia a serious allegation against MK’s legal team.  He said he felt obliged to write to the DLA to put the record straight.  Amongst other things, he said[3] that:

“ 3. During the [5/6 Conference], one of the questions raised was the occupation of MK and her partner. They told us that they were co-owners of a pet shop business as they had jointly invested in operating the pet shop business and they jointly contributed to the capital for purchasing the stock for their business.

4. A question was then raised as to whether they would be entitled to legal aid because their assets (including their stock) might exceed the eligibility limit under the legal aid scheme.  Mr Pun expressly said that he was not very familiar with how financial resources are actually assessed under the means test for legal aid, and would leave it to Mr Ng to assist them in making the legal aid application.  I did not advise MK and her partner in this regard either.”

25.In the meantime, upon receipt of those and subsequently other information, the DLA conducted certain enquiries, made a number of requests to MK for various authorizations, information, documents and confirmations, and carried out a review of MK’s financial eligibility. 

26.On 3 occasions (3 and 24 April 2019 to BNS, and 16 April 2019 to MK directly), the DLA requested the conference note of the 5/6 Conference be supplied.  In reply, BNS said (in the letter of 9 April 2019) that as the 5/6 Conference pre-dated the grant of legal aid, the conference note “falls outside of legal aid coverage”[4], and (on 30 April 2019) that “the [5/6 Conference] and its documents like conference notes are covered by [LPP] and the Aided Person has not waived such privilege …”[5].

27.Also in the letter of 30 April 2019 from BNS to the DLA[6]:

(a) BNS said that MK “did not to our knowledge make any” disclosure during the 5/6 Conference of her ownership in the pet shop or admission of having made financial contributions to the same; and that

(b) BNS “are instructed” by MK that she had never said anything to the above effect during the 5/6 Conference.

28.On 30 April 2019, the DLA issued a Notice to Show Cause to MK under Regulation 8 of the LAR.

29.On 2 May 2019, MK attended DLA office for the Notice to Show Cause meeting.  She signed a statutory declaration that (inter alia):

(a) there is no written employment contract between her and her employer;

(b) her monthly salary was HK$5,000, but she was paid in cash with no salary record;

(c) her monthly salary is below the minimum statutory requirement and thus she does not have to make any contributions to the Mandatory Provident Fund;

(d) she does not have any ownership in the pet shop and never made any financial contribution on ordering any stock of the shop; and

(e) she will not disclose any note regarding the 5/6 Conference because it is subject to LPP and she is not prepared to waive it.

30.On that same day, the DLA also wrote to Mr Pun for information on and documents relevant to MK’s financial circumstances which was within his knowledge for the DLA’s consideration.

31.In reply, Mr Pun in a letter of 3 May 2019 said, inter alia, that[7]:

“ 10. In the [5/6] Conference, Madam MK told us her background, including her occupation.

11. Madam MK told us, inter alia, that:

(1) she and her partner jointly operated a pet shop business…

(2) even though the Pet Shop Business was under the sole name of her partner in the relevant business registration, Madam MK and her partner in fact jointly contributed to the capital for setting up the Pet Shop Business and were co-owners of the Pet Shop Business; and

(3) both of them worked as salespersons in the Pet Shop Business.

12. After Madam MK told us about the Pet Shop Business, a question was then raised as to whether she would be eligible for legal aid given the value of their assets may exceed the financial eligibility limit.  Specifically, Madam MK mentioned that each of them contributed to the capital for purchasing the stock for the Pet Shop Business, the value of which were in the region of hundreds of thousand dollars … ”

32.On 3 May 2019, the DLA wrote to BNS (attention Mr Ng) and requested BNS to confirm by way of statutory declaration the matters asserted by them in the letter of 30 April 2019 (§27 above).  They were also asked to procure the same from Ms Mok.

33.In reply, BNS wrote back and “confirm what we stated in our letter dated 30 April 2019 and shall not repeat the content of the letter”. No statutory declaration was provided.  They also attached to that letter a letter from Ms Mok.  In that letter, Ms Mok said inter alia that[8]:

“ To the best of my recollection and memory, and with reference to my personal notes of the Conference, I was neither aware of nor had heard/learnt from MK during the Conference that she has any ownership in the pet shop of her partner or had made any financial contribution for the setting up of the said pet shop business as alleged.”

34.On 9 May 2019, Notice of Revocation was issued.  The grant of legal aid to MK for HCAL 1077 was revoked thereby.

35.On 14 May 2019, MK lodged the Legal Aid Appeal.

36.On 22 May 2019, Mr Pun made an affirmation confirming the contents of his letter of 3 May 2019.  Upon request by the DLA made on 22 May 2019, Mr Pun further provided by way of letter his comments on MK/LA Aff and the submissions filed on her behalf for the Legal Aid Appeal.

37.Mr Pun’s affirmation and said comments were provided to MK on 23 May 2019.  On that same day, the hearing of the Legal Aid Appeal took place before the Master.

E. The approach of the Master

38.The hearing transcript of the Legal Aid Appeal has been produced.

39.The approach adopted by the Master can be summarized as follows:

(a) The Master approached the consideration of the appeal in two stages:

(i) the first stage was to decide what evidence he could take into consideration[9]; and

(ii) the second stage was to weigh the evidence[10];

(b) In respect of the first stage:

(i) he considered the issue of LPP[11];

(ii) he expressed reservations as to whether it was possible for him to come to a clear determination as to whether the information was subject to LPP[12];

(iii) having expressed the reservations, he proceeded to observe as follows:

“ But with the limited information I have, I tend to say that the information or communication are subject to [LPP] because there is no dispute that the conference was held in order for senior counsel to give advice on the merit of the intended judicial review application, and the eligibility to apply for legal aid, as submitted by Mr Shum, is part and parcel of the entire intended proceedings.”[13]

(iv) he in effect proceeded on the basis that LPP attached, and then moved on to consider “if there is any justification for Pun and Wong to reveal as what they did”;

(v) he considered the position of Mr Pun and Mr Wong separately;

(vi) in respect of Mr Pun[14]:

(1) he considered Reg 21(1) of the LAR;

(2) he held the view that it applied to Mr Pun “although at the time when he said in his information he was no longer the assigned lawyer”, but that “[there ] is no reason why [Reg 21] should only applies to the time when the legal adviser is still the legal advisers, but not to extend to the time thereafter”, and that “whenever one has been assigned as a legal adviser, no matter whether he or she is still the legal adviser, so far he has the reasons to believe that there is any breach, then there is such a duty to report.  That applies to Pun only”;

(vii) in respect of Mr Wong[15]:

(1) he noted that Mr Wong was not assigned to represent MK.  He found that Mr Wong was not subject to Reg 21 of the LAR;

(2) he took into account:

“ the principle under R v Cox which is a well-known exclusion to the privilege because of communication was for a criminal purpose. It is clear that anything fall foul of the [LAR] is a criminal offence”;

(3) he considered section 23 of the LAO;

(4) he observed that:

“ There has been some discussion as to how to apply the Cox principle in the present case. I am of the view that this principle applies because if I do not accept on the face value of what have been stated by Mr Pun and Mr Wong, indeed, there is no case on the part of the director to deal with this matter. There is simply no evidence. I have to work on the basis of accepting on the face value as otherwise there is simply no question of applying the exception.”

(5) he then concluded that:

“ As it is my ruling that there is justification for departing from the privilege rule, it means that there is also evidence from Mr Pun, also on affirmation, and evidence from Mr Wong in writing to the effect that there was an omission [sic. admission?] by the appellant in the conference that she has interest in the Business in that she contribute to setting up and also contribute to the purchase of stocks. That only means a stock take of what evidence before this court. Of course, apart from this, there are also circumstantial evidence.”

(c) The Master then proceeded to weigh the evidence.

F. The relief sought

40.In the Form 86, MK seeks the following relief:

“ 1. A declaration that the [Master] Decision was unreasonable and/or irrational as the learned Master took into account irrelevant consideration and/or failed to properly weigh the evidence before him; [“Ground 1”]

2. Further and/or alternatively, a declaration that the [Master] Decision was unreasonable and/or irrational and/or unlawful as the learned Master erred in law in the application of the [LPP] and [Reg 21]; [“Ground 2”]

3. Further and/or alternatively, an order of certiorari to bring up and quash the [Master] Decision by reason of the aforesaid.”

G. Ground 2 — that the Master erred in law in the application of the law on LPP and Reg 21

G.1. Parties’ submissions

41.I deal with Ground 2 first.

42.In gist, Mr Shum submits that:

(a) what Mr Pun and Mr Wong revealed to the DLA are protected by LPP;

(b) In the case of Mr Pun, though he was at one stage the assigned counsel:

(i) Reg 21 of the LAR does not limit or abrogate LPP;

(ii) given the fact that the 5/6 Conference in any event predates his assignment, Reg 21 has no application in so far as Mr Pun’s disclosure is concerned;

(c) In the case of Mr Wong, given the fact that he had never been assigned, Reg 21 has no application;

(d) There is no clear prima facie case for the application of the rule in R v Cox (as explained below).

43.In gist, Ms Chan submits as follows:

(a) MK was under statutory duty to make full financial disclosure to the DLA for assessment of her financial eligibility;

(b) Non-disclosure of her financial resources was a criminal offence;

(c) MK’s intention to abuse legal aid fell within the Cox and Railton principle[16], and that “the disputed financial information as communicated in the [5/6] Conference for criminal purpose is caught by the [Cox and Railton] principle”[17];

(d) An aided person’s legal advisers have under Reg 21 the statutory duty to report abuse of legal aid;

(e) Ms Chan highlights the tripartite relationship between the DLA, the assigned lawyers and the aided person.  The DLA is not a stranger seeking discovery.  She submits that “[if] a legally aided person’s financial resources as communicated to his legal adviser is subject to LPP, it would have rendered Regulation 21 and other preventative measures (including the duties to make full disclosure in regulation 3) superfluous”[18];

(f) Ms Chan submits further that “Regulation 21 is not subject to LPP”[19], and that “a proposition that Regulation 21 is read subject to section 24 to the effect (as if the Director was a third party seeking discovery) that LPP should abrogate Regulation 21 must be wrong”[20].

G.2. Nature of LPP

44.LPP is a fundamental right.  It is absolute.  It is based not merely upon the general right to privacy, but also upon the right of access to justice.  As explained and reiterated by Ribeiro PJ in Secretary for Justice v Florence Tsang Chiu Wing (2014) 17 HKCFAR 739:

“ 27. It has repeatedly been stressed that LPP is a fundamental right which the courts will jealously protect. As Lord Hoffmann reiterated in R v Special Commissioner of Income Tax:

… LPP is a fundamental human right long established in the common law. It is a necessary corollary of the right of any person to obtain skilled advice about the law. Such advice cannot be effectively obtained unless the client is able to put all the facts before the adviser without fear that they may afterwards be disclosed and used to his prejudice. The cases establishing this principle are collected in the speech of Lord Taylor of Gosforth CJ in R v Derby Magistrates’ Court, ex p B [1996] AC 487. It has been held by the European Court of Human Rights to be part of the right of privacy guaranteed by article 8 of the Convention (Campbell v United Kingdom (1992) 15 EHRR 137; Foxley v United Kingdom (2000) 31 EHRR 637) and held by the European Court of Justice to be a part of Community law: A M & S Europe Ltd v Commission of the European Communities (Case 155/79) [1983] QB 878.

28. In Hong Kong, LPP is constitutionally guaranteed by the confidential legal advice clause in art.35 of the Basic Law, as this Court noted in Akai Holdings Ltd v Ernst & Young.

29. While an exercise of balancing competing interests is required in deciding whether someone should be released from the implied undertaking, it is well established that ‘LPP does not involve such a balancing of interests.  It is absolute and is based not merely upon the general right to privacy but also upon the right of access to justice’. ”

45.In Three Rivers District Council and Others v Governor and Company of the Bank of England (No.6) [2005] 1 AC 610, Lord Scott at §§23 to 27 set out 4 features of LPP, that:

(a) LPP arises out of a relationship of confidence between lawyer and client;

(b) if a communication or document qualifies for LPP, the privilege is absolute;

(c) LPP gives the person entitled to it the right to decline to disclose or to allow to be disclosed the confidential communication or document in question; and

(d) while LPP has an undoubted relationship with litigation privilege, a connection with litigation is not a necessary condition for privilege to be attached.

46.The scope of and policy behind LPP were succinctly explained by Baroness Hale in Three Rivers at §§61 to 62, that:

“ 61 … there is a clear policy justification for singling out communications between lawyers and their clients from other professional communications. The privilege belongs to the client, but it attaches both to what the client tells his lawyer and to what the lawyer advises his client to do. It is in the interests of the whole community that lawyers give their clients sound advice, accurate as to the law and sensible as to their conduct. The client may not always act upon that advice (which will sometimes place the lawyer in professional difficulty, but that is a separate matter) but there is always a chance that he will. And there is little or no chance of the client taking the right or sensible course if the lawyer’s advice is inaccurate or unsound because the lawyer has been given an incomplete or inaccurate picture of the client’s position.

62 This rationale extends much more broadly than to advice about legal rights and obligations strictly so-called. I understand that we all endorse the approach of the Court of Appeal in Balabel v Air India [1988] Ch 317, and in particular the observation of Taylor LJ, at p 330, that ‘legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context’. ”

47.Once LPP is established, the lawyer’s mouth is “shut for ever” — Pang Yiu Hung v Commissioner of Police [2003] 2 HKLRD 125, per Hartmann J at §20, citing Wilson v Rastall [1782] 4 Durn. & E. 753 (at 759) per Buller J, and R v Derby Magistrates [1996] 1 AC 487.

48.Subject to any constitutional restraints, LPP may be limited by legislation.  But that will only be so when there is express statutory language to that effect, or when, as a matter of interpretation, the implication that it is limited is clearly necessary — Pang Yiu Hung, §23. 

49.On the test to apply when considering the question of statutory limitation or abrogation, Hartmann J explained further at §§82 to 85 of Pang Yiu Hung, that:

“82. Earlier, I said that, while legal professional privilege may be limited by legislation, this will only be so where the legislation expressly provides for the limitation or where, as a matter of interpretation, it must necessarily be implied. This, I believe is the test.

83. In R (on the application of Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax & Another [2002] 2 WLR 1299, Lord Hoffmann stated the test in the following terms:

… the courts will ordinarily construe general words in a statute, although literally capable of having some startling or unreasonable consequence, such as overriding fundamental human rights, as not having been intended to do so. An intention to override such rights must be expressly stated or appear by necessary implication. The speeches of Lord Steyn and myself in R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115 contain some discussion of this principle and its constitutional justification in the context of human rights. But the wider principle itself is hardly new. It can be traced back at least to Stradling v Morgan (1560) I Pl 199.

84. The test has been stated to the same effect in a number of common law jurisdictions. See, for example, the dicta of Elias CJ in the recent judgment in Auckland District Law Society v B [2002] 1 WLR 721.

85. … A necessary implication is not the same as a reasonable implication. This was underscored by Lord Hobhouse in R (on the application of Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax & Another [2002] 2 WLR 1299 at p.1311, where he defined a necessary implication in the following terms:

A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context.  It distinguishes between what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have included.  A necessary implication is a matter of express language and logic not interpretation.”

50.The attachment of and protection by LPP is subject to the rule in R v Cox, named after R v Cox and Railton [1884] 14 QBD 153.  I do not call that an exception, because if that rule applies, LPP is not attached.  It is therefore not an exception.  Stephen J explained in R v Cox and Railton at pp 165 to 167 as follows:

“ … The question, therefore is, whether, 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 for which his advice is wanted, the communication between the two is privileged? We expressed our opinion at the end of the argument that no such privilege existed. If it did, the result would be that a man intending to commit treason or murder might safely take legal advice for the purpose of enabling himself to do so with impunity, and that the solicitor to whom the application was made would not be at liberty to give information against his client for the purpose of frustrating his criminal purpose. Consequences so monstrous reduce to an absurdity any principle or rule in which they are involved ...

… The reason on which the rule is said to rest cannot include the case of communications, criminal in themselves, or intended to further any criminal purpose, for the protection of such communications cannot possibly be otherwise than injurious to the interests of justice, and to those of the administration of justice.  Nor do such communications fall within the terms of the rule.  A communication in furtherance of a criminal purpose does not ‘come into the ordinary scope of professional employment’.”

Along the same line, Ribeiro PJ explained in Florence Tsang at §9 that:

“ The rule in R v Cox, as Stephen J put it, is that communications protected by legal professional privilege ‘cannot include the case of communications, criminal in themselves, or intended to further any criminal purpose’. Explaining the principle that ‘confidential communications involving fraud are not privileged from disclosure’, Stephen J cited Lord Hatherley in Gartside v Outram who stated:

The true doctrine is, that there is no confidence as to the disclosure of iniquity.  You cannot make me the  confidant of a crime or a fraud and be entitled to close up my lips upon any secret which you have the audacity to disclose to me relating to any fraudulent intention on your part; such a confidence cannot exist.”

51.However mere surmise or conjecture of fraud / crime does not displace LPP — see Bullivant v A-G for Victoria [1901] AC 196, at 201. Ribeiro PJ explained in Florence Tsang as follows, at §30:

“ … As Viscount Findlay made plain in O’Rourke v Darbishire:

… it is not enough to allege fraud.  If the communications to the solicitor were for the purpose of obtaining professional advice, there must be, in order to get rid of privilege, not merely an allegation that they were made for the purpose of getting advice for the commission of a fraud, but there must be something to give colour to the charge.  The statement must be made in clear and definite terms, and there must further be some prima facie evidence that it has some foundation in fact.”

In that regard, Citic Pacific Ltd v Secretary for Justice [2012] 2 HKLRD 701 is relevant, wherein Hartmann JA at §79 cited with approval the following passage from R v Gibbins [2004] EWCA Crim 311, that:

“ … bearing in mind the nature of the proceedings, the importance of the doctrine of LPP [privilege], the room for ambiguity and the possibility of innocent explanation, it has been stated (in Cox and Railton) that the judge should consider it ‘probable’ that the document was part of the fraud and (in Derby v Weldon) that a ‘strong’ prima facie case is required (the standard adopted by the judge in this case). We consider that these observations rightly emphasise the need for the judge to be clear in his view that a prima facie case of fraudulent purpose exists. However we do not think that any gloss upon the requirement of a prima facie case is desirable either in respect of the charge contained in the indictment or in respect of the purpose behind the document of which disclosure is sought …”

G.3. Relevant provisions in the LAO and the LAR

52.Section 24 of the LAO stipulates that:

“ 24. Privileges attaching to certain relationships

(1) The like privileges and rights as those which arise from the relationship of client, counsel and solicitor acting in their professional employment shall arise from the following relationships, that is to say—

(a) the relationship between an applicant for legal aid and the Director and counsel and solicitor to whom the application is referred;

(b) the relationship between an aided person and the Director and counsel and solicitor assigned to act for him in any proceedings to which a legal aid certificate relates.

(2) (Repealed …)

(3) Save as provided by this Ordinance, the rights conferred by this Ordinance on an aided person shall not affect the rights or liabilities of other parties to the proceedings or the principles on which the discretion of any court or tribunal is normally exercised.

(4) A person shall not disclose information given for the purposes of this Ordinance concerning a person seeking or receiving advice, assistance or representation otherwise than—

(a) to enable the proper performance by a person of a function under this Ordinance;

(b) to advise on, institute and pursue criminal proceedings for an offence arising out of the operation of this Ordinance or to report the proceedings; or

(c) with the consent of the person concerned and, if he did not give the information, the consent of the person who did.

(5) Subsection (4) does not apply to information in the form of a summary or collection of information set out in a manner that does not enable information concerning a particular person to be ascertained from it.

(6) Information given to counsel or a solicitor acting in that capacity by or on behalf of a person seeking or receiving advice, assistance or representation under this Ordinance is not information given for the purposes of this Ordinance.

(7) In this section, court (法院) includes the Court of Final Appeal.”

53.At the centre of the present application is Reg 21 of the LAR, which stipulates as follows:

“ Duty to report abuse of legal aid

(1) Where an aided person’s solicitor or counsel has reason to believe that the aided person—

(a) has required his case to be conducted unreasonably so as to incur unjustifiable expense or has required unreasonably that the case be continued; or

(b) has wilfully failed to comply with any regulation requiring him to provide information or in furnishing such information has knowingly made a false statement or a false representation,

the solicitor or counsel shall forthwith report the fact to the Director.

(2) Where the solicitor or counsel is uncertain whether it would be reasonable for him to continue acting for an aided person, he shall report the circumstances to the Director.”

54.Also relevant is Regs 12(7) to 12(10) of the LAR, which stipulate that:

“ 12. Conduct of proceedings by solicitors

…

(7) Without prejudice to the right of solicitor or counsel to give up a case for good reason, any solicitor or counsel may give up an aided person’s case if, in his opinion, the aided person has required the proceedings to be conducted unreasonably so as to incur an unjustifiable expense to the Director or has required unreasonably that the proceedings be continued.

(8) Where any solicitor or counsel exercises the right to give up an aided person’s case—

(a) under the provisions of paragraph (7); or

(b) on the ground that the aided person has wilfully failed to provide the information to be furnished by him or in furnishing such information has knowingly made a false representation,

the solicitor or counsel shall make a report to the Director of the circumstances in which that right was exercised.

(9) An aided person’s solicitor shall give the Director such information regarding the progress and disposal of proceedings to which the certificate relates as the Director may from time to time require for the purpose of performing his functions under the Ordinance and without prejudice to the generality of the preceding words, a solicitor who has acted or is acting for an aided person, on being satisfied that the aided person has died or has had a receiving order made against him, shall report the facts to the Director.

(10) A solicitor shall not be precluded, by reason of any privilege arising out of the relationship between solicitor and client from disclosing to the Director any information or from giving any opinion which may enable the Director to perform his functions under the Ordinance.”

G.4. Whether Reg 21 limits or abrogates LPP

55.Traditionally under common law, “privilege was confined to the three cases of counsel, solicitor and attorney” — Derby Magistrates’ Court, Ex p B, at 504F.

56.It therefore makes perfect sense (probably necessary in the case of the DLA, and at least for the avoidance of doubt in the case of panel counsel and solicitors) that section 24(1) of the LAO be put in place so that in the context of the legal aid scheme, both at the application stage and upon assignment, LPP be statutorily attached to the relationships specified in sections 24(1)(a) and (b).

57.When section 24 of the LAO first came into being, sections 24(4) to 24(6) were not there.

58.Sections 24(4) to 24(6) were added in 1995 by clause 9 of the Legal Aid (Amendment) Bill 1995.  According to the relevant Official Record of Proceedings of the Legislative Council[21], the Administration said that the “existing privileges against disclosing information in connection with a legal aid application are clarified in clause 9 of the Bill”.  The Official Record[22] further shows that Clause 9 originally:

“ …proposed new section 24(7), which imposes a criminal sanction on those who disclose the personal information of an applicant for legal aid. The Bills Committee and the legal professional share the view that there appears to be no reason why criminal sanction should be attached to a breach of confidentiality of the type of information in question.

The Administration explains that the intention of the new subsection is to encourage an applicant for legal aid to disclose his personal information fully and frankly.  On review, the Administration agrees that the disclosure of such information should not amount to a criminal offence and will delete the proposed subsection (7) under clause 9.”

59.Mr Shum submits that section 24 should be interpreted as follows:

(a) Section 24(1) is the primary subsection.  It preserves LPP;

(b) Section 24(4) appears to permit some exceptions, that a person may disclose “information given for the purposes of this Ordinance” (which I will for convenience call “LAO Purpose Information”) in the circumstances permitted by sections 24(4)(a), (b) or (c);

(c) but section 24(6) excludes from LAO Purpose Information “information given to counsel or a solicitor acting in that capacity by or on behalf of a person seeking or receiving advice, assistance or representation under this Ordinance” (which I will for convenience call “Information to Lawyer”);

(d) he submits that reading the 2 subsections together, a counsel or solicitor therefore cannot rely on section 24(4) to disclose Information to Lawyer, even in circumstances permitted by sections 24(4)(a) to (c), that the position is back to where it started in the case of counsel and solicitor, so that LPP is completely preserved.

60.I do not agree with the emphasis of that interpretation.

61.In my view, the primary purpose of the insertion of section 24(4) is not meant to effect any permission of disclosure of LAO Purpose Information under the 3 permissible circumstances.  The purpose is rather to impose a general prohibition of disclosure of LAO Purpose Information otherwise than permitted in those 3 circumstances.  In effect, a general duty of confidentiality in relation to LAO Purpose Information is statutorily imposed. The intention is to encourage full and frank disclosure of personal information by an applicant for the purpose of applying for legal aid.  The original intention was even to back that prohibition up with criminal sanction.  This interpretation is also consistent with the long title of the LAO.  The insertion of section 24(6) merely clarifies the position that Information to Lawyer is not LAO Purpose Information, so that Information to Lawyer is outwith that general prohibition.  The 2 subsections in my view add or subtract little from what is covered by LPP.

62.The question then comes back to the scope of the privileges and rights declared to arise in sections 24(1)(a) and (b).

63.The crucial plank of Mr Shum’s submission is that those privileges and rights, which are LPP under common law, are such that an applicant or an aided person can in respect of privileged communications between him and counsel or solicitor refuse disclosure even to the DLA on the basis of LPP.

64.Before continuing, I make two points to define and clarify my discussions below:

(a) This application is concerned with MK’s financial eligibility.  The information disclosed by Mr Pun and Mr Wong relates to that.  The disclosed information has nothing to do with the merits of the substantive application for judicial review.  The distinction between LAO Purpose Information and Information to Lawyer is of similar nature.  The discussion below is therefore confined to information on the applicant’s financial eligibility for legal aid.  The analysis of the other type of information involves other considerations, is not engaged in the present case, and does not call for determination;

(b) Sections 24(1)(a) and (b) refer respectively to the relationship between the specified parties during the application stage and upon assignment. The discussion in this sub-section (ie G.4.) is therefore confined temporally to the time and situations after those relationships have arisen.  The position, for example, before any application for legal aid calls for different considerations.

65.To consider the scope of those privileges and rights of an applicant or aided person declared to arise by sections 24(1)(a) and (b), one needs to consider the LAO and the LAR as a whole.

66.The purpose of the LAO is to “make provision for the granting of legal aid in civil actions to persons of limited means and for purposes incidental thereto or connected therewith” — see the long title.

67.In addition to the purpose of the LAO, section 24 and Reg 21 should also be considered in the context of the statutory duties and powers of the DLA.

68.As part of his duties under the LAO, the DLA, under section 4(1) of the LAO:

“shall prepare and maintain separate panels of counsel and solicitors enrolled on the rolls of barristers or solicitors maintained in accordance with the provisions of the Legal Practitioners Ordinance (Cap. 159) who are willing to investigate, report and give an opinion upon applications for the grant of legal aid and to act for aided persons.”

69.I highlight the words “to investigate, report and give an opinion upon applications for the grant of legal aid”.

70.Under section 6 of the LAO:

“Legal aid shall consist of representation, on the terms provided for by this Ordinance, by the Director or by a solicitor and, so far as necessary, by counsel including all such assistance as is usually given by solicitor or counsel in the steps preliminary or incidental to any proceedings or in arriving at or giving effect to a compromise to bring to an end any proceedings.” (Emphasis added)

71.Here, what Ms Chan calls the tripartite relationship becomes obvious. The DLA is not a third party stranger.  The Director, or (and I highlight the conjunction “or”) a solicitor, and so far as necessary counsel, are all providers of legal aid within the scope defined.

72.Application for legal aid is regulated by section 8 of the LAO. Every application shall be in such form and accompanied by such statutory declaration, verifying the facts stated in the application, as may be prescribed.

73.The DLA has the powers to make such inquiries as he thinks fit as to the means of the applicant (section 9(a)).  He may require the applicant to furnish such information and such documents as he may require for the purpose of considering the application.

74.As part of the DLA’s powers to make inquiries, the DLA may under section 9(d):

“refer the application, or any matter arising out of the application, to counsel or solicitor, whose name is on the appropriate panel, to investigate the facts and make a report thereon or to give any opinion thereon or on any question of law arising out of the application.”

75.Nowhere in the LAO does it suggest that, in reporting to the DLA, whether as envisaged by section 4(1) or under section 9(d), the counsel involved needs to have the consent or waiver of the applicant.

76.While the DLA can himself provide legal aid within the scope defined in section 6 of the LAO, the DLA has the statutory powers in the discharge of his statutory duties to engage panel solicitors and counsel.  In those cases, the DLA necessarily will have to rely on those solicitors and counsel to report matters back to him.  That is how under the LAO the legal aid regime works.  To suggest that an applicant or aided person has the rights and privilege to, at least in so far as his communications with solicitors and counsel on financial eligibility are concerned (which we are concerned with[23]), claim LPP against the DLA would in my view render the system unworkable.

77.I accept that LPP is a fundamental right guaranteed by Article 35 of the Basic Law.  I accept and myself emphasize that LPP ought to be jealously protected. 

78.I remind myself that while legal professional privilege may be limited by legislation, this will only be so where the legislation expressly provides for the limitation or where, as a matter of interpretation, it must necessarily be implied.  I remind myself further the difference between a necessary implication and a reasonable implication.

79.I have no doubt that as between an applicant or an aided person and a third party (eg an adversary in a litigation), the combined effect of the common law principles as discussed above and section 24(1) of the LAO entitles the applicant or an aided person to assert LPP on all privileged communications and documents.

80.However, the relationship between an applicant or aided person vis-à-vis the DLA is not the same. 

81.I say this at the outset:

(a) Ms Chan[24] relies heavily on the tripartite relationship of the DLA, counsel or solicitor and the aided person.  She submits that “by the express wording of section 24(1), an applicant/a legally aided person cannot claim LPP against the Director, counsel/solicitor”, and that “[by] the operation of the general rule of LPP, section 24(1) applies to a situation where a third party, alien to the Director and the assigned counsel/solicitor, seeking discovery of privileged information…”;

(b) I do not accept that the wording of section 24(1) is so clear that it ousts any possible assertion by an applicant or aided person of LPP against the DLA;

(c) As one can see from Reg 12(10), the Legislature appears to recognize that an applicant or aided person could theoretically assert LPP against the DLA;

(d) Whether Reg 12(10) is there only for avoidance of doubt is not clear, and has not been fully argued;

(e) I do not therefore accept Ms Chan’s submission in this regard;

(f) The fact that the DLA is not a stranger third party is however a factor relevant to the further discussions below, which I will take into account.

82.The DLA is statutorily mandated to determine an applicant’s financial eligibility to legal aid.  An applicant has the duty to supply any information as required, and has further the continuous duty to report any change in financial circumstances[25]. Willful failure to comply with any relations as to the information to be supplied is an offence under section 23 of the LAO.  The DLA is not a stranger third party.  He is one of the providers of legal aid as defined in section 6 of the LAO.  He also has the powers to require reports under the terms of the LAO from panel solicitors and counsel.  We will see more such examples when we look at the LAR.  When reports are so sought, the DLA necessarily will have to rely on those solicitors and counsel to report matters back to him.  As I have commented above, to suggest that an applicant or aided person has the rights and privilege to, at least in so far as his communications with solicitors and counsel on financial eligibility are concerned, claim LPP against the DLA would in my view render the system unworkable.

83.Upon the above considerations, I am of the view that at least in relation to communications on financial eligibility, and upon an application for legal aid being made and upon assignment (so that the relationships referred to in sections 24(1)(a) and (b) arise), any right or privilege which an applicant or aided person may otherwise have to refuse disclosure to the DLA on the basis of LPP has clearly and necessarily been limited or abrogated by the provisions of the LAO read as a whole.  I call this for ease of reference the “Necessary Limitation”.

84.The Necessary Limitation is consistent and supported by the contents of the LAR:

(a) Reg 3(2)(c) requires that every application must contain any information and be accompanied by any documents that the DLA may require to enable the DLA to determine the financial resources of the applicant;

(b) Regs 12(8) and 12(9) (reproduced above), which impose duties in some circumstances on counsel and solicitor to report or to provide information;

(c) I have also reproduced above Reg 12(10).  It is in my view an important regulation.  It makes clear the position that a solicitor shall not be precluded, by reason of any LPP, from disclosing to the DLA any information or giving any opinion which may enable the DLA to perform his functions under the LAO;

(d) Reg 21 was inserted by Legal Aid (Amendment) Regulations (1984). Paragraph 2(h) of the Explanatory Notes concerned states that:

“ The regulations also –

(h) impose on an aided person’s counsel or solicitor a duty to report abuses of legal aid.”

(e) Mr Shum in the course of the hearing submitted that as LPP has been preserved in full by section 24 of the LAO, interpreting Reg 21 as having the effect of abrogating LPP would render it ultra vires;

(f) The imposition of the duty by Reg 21 on the part of an aided person’s solicitor or counsel to report abuse of legal aid is consistent with the Necessary Limitation, which is effected by the LAO.  Reg 21 is not ultra vires;

(g) Further, when considering Reg 21, it is also important to compare and contrast Reg 21(a) with Reg 21(b);

(h) When making his oral submissions, Mr Shum concentrated upon Reg 21(b). He submitted that his interpretation (that Reg 21 does not abrogate LPP) would not render Reg 21(b) nugatory.  He gave the following examples.  If, the “reason to believe” arises from what an aided person has communicated to a counsel in professional capacity (eg the aided person tells the counsel that he has a valuable property which has not been declared to the DLA), the counsel is bound by LPP and cannot report with breach of LPP.  But if the same counsel in the course of acting for that same aided person becomes aware of the aided person’s ownership of that same property through sources independent of the aided person (eg a document disclosed by the other side), then the duty to report bites;

(i) However, the same considerations underlying those submissions of Mr Shum’s cannot apply in respect of Reg 21(a).  Reg 21(a) talks about an aided person requiring his case to be conducted unreasonably.  The “reason to believe” in that regard necessarily comes from the aided person.  To suggest that a counsel in such a circumstance were bound by LPP and could not report would render Reg 21(a) nugatory.

85.I further see no policy considerations against the Necessary Limitation. The DLA is tasked with deciding the financial eligibility of an applicant for legal aid.  He is one of the providers of legal aid.  In discharging his duties, he has the powers to demand information to enable him to determine the financial resources of the applicant.  But vis-à-vis any stranger third party, any communication in confidence between the DLA and the applicant or aided person (or on behalf of the applicant or aided person) is protected by LPP (section 24(1)). There is further the duty of confidentiality imposed by section 24(4).  The interest of and administration of justice will not be affected by the Necessary Limitation.  They are enhanced thereby.  The interest of the applicant or aided person remains well protected.

86.For the reasons set out above, my view is that the Necessary Limitation is effected by necessary implication through the LAO.  The Necessary Limitation is not effected by or through Reg 21.  The imposition of the specified duty by Reg 21 on an aided person’s counsel and solicitor to report abuse of legal aid is to be construed in the light of the Necessary Limitation, and is not ultra vires.

87.I also record this.  In the course of the hearing, and upon my invitation for clarifications, Mr Shum confirmed that he would not be making any constitutional challenge against any provisions of the LAO or LAR even in the eventuality of this Court ultimately reaching the conclusion that LPP had been abrogated.  I will not therefore deal with that issue.

G.5. Whether Reg 21(1) applies to Mr Wong and Mr Pun

88.I next consider the applicability of Reg 21(1) on Mr Wong and Mr Pun. 

G.5.a. Mr Wong’s position

89.I consider the position of Mr Wong first.

90.Mr Wong has never been assigned as MK’s counsel.

91.In Ms Chan’s 1^st Written Sub, she sought to argue that the phrase “an aided person’s solicitor or counsel” in Reg 21(1) is not confined to an aided person’s assigned counsel, so that Reg 21(1) also applied to Mr Wong.

92.Ms Chan subsequently in the course of the hearing withdrew that part of her submissions[26].

93.In my view, the phrase “an aided person’s solicitor or counsel” clearly does not cover a solicitor or counsel who has never been an aided person’s assigned solicitor or counsel.  In my view, Reg 21(1) has no application to Mr Wong.

G.5.b. Mr Pun’s position

94.I now turn to Mr Pun’s position.

95.I recapitulate the relevant chronology.  At the time of the 5/6 Conference, MK had not applied for legal aid.  She did so on 3 July 2018, and was granted legal aid certificate on 25 July 2018.  Mr Pun was assigned on 21 August 2018.  Reassignment took place on 9 January 2019. Disclosure was first made by Mr Pun by letter on 3 May 2019, and later confirmed by affirmation of 22 May 2019.

96.So, in the case of Mr Pun:

(a) at the time when the 5/6 Conference took place, MK had not applied for legal aid, and Mr Pun was not an assigned lawyer; and

(b) at the time when the disclosure was made, Mr Pun was no longer an assigned lawyer.

97.Ms Chan’s stance is that Reg 21(1) should “be construed widely to cover counsel / solicitor for an aided person outside of the period covered by the legal aid certificate”[27].

98.On the other hand, Mr Shum submits that[28]:

“ [Reg 21(1)] did not allow Mr Pun SC … to disclose the information and/or communication in the [5/6 Conference] which is subject to LPP and had nothing to do with assigned counsel’s duty to the DLA to disclose information. In conjunction with Section 24 of LAO where LPP is expressly reserved it is totally unarguable to stretch the meaning and effect of [Reg 21(1)] to (1) ‘all privileged communications made prior to the issue of legal aid’ and (2) ‘all lawyers subsequently assigned had a duty to divulge privileged communication for all periods prior to the assignment of legal aid’.” (Original emphasis.)

99.The first point to consider is whether the disclosure made by Mr Pun was originally subject to LPP.

100.On the evidence, during the 5/6 Conference, the relationship between MK, Mr Pun and Mr Wong was one of confidence between lawyers and client.

101.Applying Three Rivers, I am of the view that the communications during the 5/6 Conference on MK’s eligibility to legal aid relates to her seeking of legal advice as to what should prudently and sensibly be done in the relevant legal context of her intended application for judicial review.

102.In my view, subject to the rule in R v Cox, which I will come back to, LPP attached to the communications between MK and Mr Pun on her financial resources.  As Baroness Hale has explained also in Three Rivers, LPP attaches both to what the client tells his lawyer and to what the lawyer advises his client to do.

103.At the time when the 5/6 Conference took place, MK had not applied for legal aid.  Reg 21(1) at that stage had no application.

104.Then Mr Pun was 21 August 2018 assigned as MK’s counsel.

105.I have concluded in section G.4 above that the Necessary Limitation is effected by necessary implication through the LAO, and that the imposition by Reg 21 of the duty to report legal aid abuse is not ultra vires.

106.In section G.4 above, I specifically confine the discussion temporally to the time and situations after those relationships referred to in section 24(1)(a) and section 24(1)(a) have arisen.  But at the time of the 5/6 Conference, no application for legal aid has been made.  MK was not yet an “applicant”, so that “the relationship between an applicant for legal aid and the [DLA]” had not arisen.

107.The question then is whether the provisions in the LAO and Reg 21(1) have the effect of abrogating or limiting LPP in respect of privileged communications that took place prior to any application for legal aid.

108.As a matter of principle, once LPP is attached, the lawyer’s mouth is “shut for ever”.

109.LPP is a fundamental right protected by Article 35 of the Basic Law.  Whilst it may be overridden by statute, such an intention to override must be expressly stated or appear by necessary implication.

110.What is clear is that there is no express abrogation of any prior LPP that has already attached before the application of legal aid.

111.Nor does any retrospective abrogation in my view necessarily follow from the express provisions of the LAO.  It is in my view sufficient to confine the Necessary Limitation to privileged communications that take place after the relationships specified in sections 24(1)(a) and 24(1)(b) have arisen.

112.The wording of Reg 21 is not precise.  It talks about “reason to believe”.  It otherwise contains no provision governing the timing of the “basis” which gives rise to that “reason to believe”.  In particular, and by way of example, if the “basis” is communications between the lawyer and his client, Reg 21(1) is silent as to whether:

(a) Reg 21(1) applies only to communications that take place while the relations specified in sections 24(1)(a) and 24(1)(b) are subsisting; or

(b) Reg 21(1) applies also to pre-application communications; and/or

(c) Reg 21(1) continues to apply even after termination of assignment; and/or

(d) if Reg 21(1) continues to apply even after termination of assignment, whether such continuous application applies to all communications (including pre-application communications), or only to post-application and pre-termination communications.

113.An assigned lawyer might have acted for a client on a private basis for years before changes of circumstances which lead to need on the client’s part to apply for legal aid.  If Reg 21(1) were to apply to all pre-application communications, disproportionate and irrational abrogation and limitation could result.  The LPP that has been attached to all privileged communications that have taken place before then would suddenly become abrogated.  I see no justified basis for that.

114.For the above reasons, I am of the view that:

(a) Reg 21(1) does not oblige, nor authorize, an aided person’s solicitor or counsel to disclose any privileged communication that has already taken place prior to the application by his client of legal aid;

(b) even if Reg 21(1) continues to apply after termination of assignment, such continuous application should apply only to post-application and pre-termination communications, but not to any pre-application communications.

G.5.c. The rule in R v Cox

115.I now consider the rule in R v Cox.  If the rule applies, the communication which Mr Wong and Mr Pun have disclosed would not be subject to LPP, and no question of abrogation or limitation of LPP arises.

116.I have discussed above the authorities on the application of the rule in R v Cox.  A case has to be made out for its application.  Mere surmise or conjecture of fraud / crime does not displace LPP.  While any gloss upon the requirement of a prima facie is not desirable, there must be some prima facie evidence that the allegation of fraud / crime has some foundation in fact.

G.5.d. The Master’s approach revisited in the light of the above

117.With the above discussions in mind, I revisit the Master’s approach.

118.The Master proceeded on the basis that the information or communication concerned was protected by LPP.  He then considered whether Mr Pun and Mr Wong had “any justification … to reveal as what they did”. 

119.I have serious reservations about that approach.  LPP is an important fundamental right.  It is absolute.  There is no balancing exercise.  Rather than considering any “justification”, the principled approach is to consider whether LPP is attached, and if so, whether it has been limited or abrogated statutorily.  One may also need to consider the constitutionality of any statutory limitation or abrogation (though that is not an issue canvassed in the present application).

120.The Master was of the view that Mr Pun’s disclosure was justified by Reg 21.

121.I do not agree.  I note in this regard that the Master has not focused upon the fact (or its implications) that the 5/6 Conference took place prior to MK’s application of legal aid.  I have expressed above my view that Reg 21(1) does not oblige, nor authorize, an aided person’s solicitor or counsel to disclose any privileged communication that has already taken place prior to the application by his client of legal aid. 

122.Hence, in addition to my feeling of misgiving about the Master’s approach of considering “justification”, I am of the view that he in any event erred in the application of Reg 21.

123.In the case of Mr Wong’s disclosure, the Master considered the rule in R v Cox.  I have set out the Master’s relevant considerations at §39(b)(vii)(4) above.  He accepted “on the face value of what have been stated by Mr Pun and Mr Wong”, otherwise, “there is no case on the part of the director to deal with this matter.  There is simply no evidence.  I have to work on the basis of accepting on the face value as otherwise there is simply no question of applying the exception”.

124.In my view, that approach is erroneous in law.  As I have discussed above, there must be some prima facie evidence that the allegation of fraud / crime has some foundation in fact.  It is only then when the rule in R v Cox is engaged.  A case for its application has to be made out.  If there is no evidence for its application, then it simply does not apply.  One does not accept the impugned evidence so as to make the rule apply.

125.It is of course an offence under section 23 of the LAO for any person seeking legal aid who willfully fails to comply with any regulations as to the information to be supplied, or in furnishing information knowingly makes any false statement or representation.  The question before the Master was however whether a case has been made out that the relevant communications had taken place, and if so whether they were criminal in themselves or intended to further any criminal purpose, whether in the context of section 23 of the LAO or otherwise.  A case has to be made out for that before the rule in R v Cox is engaged.  The Master has not considered this, but proceeded to conclude that “I am of the view that this principle applies because if I do not accept on the face value of what have been stated by Mr Pun and Mr Wong, indeed, there is no case on the part of the director to deal with this matter”.

126.I have considered if I should proceed further to consider whether, adopting the proper approach, a case for the application of the rule in R v Cox can be made out.  However, this is not a second appeal.  As I will make clear, I will accede to Mr Shum’s invitation and remit this matter back to the DLA to consider afresh whether the legal aid certificate granted to MK should be revoked.  On that basis, I should leave the substantive re-consideration of the evidence to the DLA. 

127.However, on the basis of the discussion alone, I am of the view that Ground 1 must succeed.

H. Ground 1 — that the Master erred in weighing the evidence

128.Again, one needs to revisit the Master’s approach.  At stage one of his approach, the Master decided what evidence he could take into consideration.  Then at stage two, he weighed those matters and evidence which he had decided he could take into account.  Amongst others, he took into account the disclosure by Mr Pun and Mr Wong.

129.I repeat my conclusions reached above in respect of Ground 2.  The errors occurred at stage one tainted stage two.  The Master had not validly considered whether the information and communications disclosed by Mr Pun and Mr Wong were protected by LPP, and whether he could properly consider their evidence.  Until their nature had been properly and validly decided, the information and communications disclosed by Mr Pun and Mr Wong should not have been considered. 

130.In that sense at the very least, Ground 1 has also been made out.

131.I have again considered whether I should proceed to weigh the evidence. I have decided not to.  To do so, I need to consider first of all whether on the evidence a case for the application of the rule in R v Cox can be made out so that I can determine what evidence I can take into account.  I have decided that that should be left to the DLA.  In any event, upon determination of the applicability of the rule in R v Cox applies, any further evaluation of the evidence as to whether the legal aid certificate should be revoked ought to also be left to the DLA.  It should be borne firmly in mind that under the LAO, the legal aid scheme is administered by the DLA.  The matter should be remitted to the DLA for his re-consideration.  I accept Mr Shum’s submissions in this regard.

132.I record in this regard the following.  In the course of the hearing, Mr Shum produced, on a de bene esse basis, the conference note of the 5/6 Conference prepared by Ms Mok.  Its production had until then been resisted on the basis of LPP.  Ms Chan opposed its production.  On a practical basis, as this Court is not undertaking a weighing exercise of the evidence, I will not admit that conference note.

I. Disposition

133.For the reasons set out above:

(a) I grant MK leave to apply for judicial review;

(b) I grant a declaration that the Master erred in law in the application of legal professional privilege and Regulation 21 of the Legal Aid Regulations;

(c) I grant a further declaration that the Master took into account irrelevant matters when weighing the evidence before him;

(d) I make an order of certiorari to bring up and quash the Master Decision;

(e) I direct that the matter be remitted back to the DLA for his re-consideration as to whether the legal aid certificate granted to MK should be revoked.

134.I make a costs order nisi that MK should have the costs of the action, to be borne by the DLA.

Mr Erik Shum and Ms Queenie W S Ng, instructed by Jimmie K S Wong & Partners, for the Applicant

Ms Jess Chan, Senior Government Counsel of Department of Justice, for the Putative Interested Party

Department of Justice for the Putative Respondent, attendance was excused