Wong Wai Keung v. Commissioner of Police

HCMP 1222/2020

[2022] HKCFI 374

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1222 OF 2020

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D E C I S I O N

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A. INTRODUCTION

1.On 10 August 2020, the Police, inter alia, arrested the plaintiff and seized materials, in both digital form and non-digital form, from the plaintiff’s residence and his office (“Seized Materials”).  On 13 August 2020, the plaintiff (via his legal representatives) commenced the present proceedings to assert claims of legal professional privilege (“LPP”) and journalistic materials (“JM”) over the Seized Materials.

2.Subsequently, pursuant to the Varied Protocol^[1], the plaintiff has on divers dates served on the defendant (the “Commissioner”) his Digital Schedules as well as a Non-Digital Schedule for the purpose of identifying the specific parts of the Seized Materials over which the plaintiff asserts LPP and/or JM claims.

3.On 12 November 2021, the Commissioner (represented by the Department of Justice) identified the specific claims in the plaintiff’s Digital Schedules and Non-Digital Schedule which the Commissioner disputes.  There are a total of 763^[2] disputed items (“Disputed Materials”).

4.The Commissioner does not dispute the JM claims made by the plaintiff.  Hence, the court is only concerned with the plaintiff’s LPP claims.

5.The Disputed Materials are identified in a “List of LPP Claims Disputed by the Defendant” which can be found at Schedule (A) to the Consent Order dated 7 December 2021 (“List of Disputes”).

6.As seen in the List of Disputes:

(1)  There are two Digital Items ie Items 78(1)A and 513 in dispute;

(2)  Within each Digital Item, there are in turn individual files/documents, each amounting to a “claim”.  So:

(a)  For Digital Item 78(1)A, there are 249 claims (ie 249 individual files/documents identified as being allegedly covered by LPP);

(b)  For Digital Item 513, there are 479 claims (ie 479 individual files/documents identified as being allegedly covered by LPP);

(3)  There are in fact considerable duplications within the claims (ie files/documents listed as individual items which appear to be duplicates/copies).  Upon checking of hash values, the Commissioner finds there are only 283 unique documents/files, hence 283 claims in total.

(4)  There is one Non-Digital Item, ie Item 70,that is under dispute, within which there are 32 claims.^[3]

7.By the plaintiff’s Reply Submissions dated 21 January 2022, the plaintiff confirms that he would not continue with his LPP claims for the claims under Digital Item 78(1)A.[4] As such, the remaining disputed LPP claims requiring determination of the court concern those under Digital Item 513 (Disk 0) and (Disk 1) and Non-Digital Item 70.

A1.    Claims under Digital Item 513 (Disk 0)

8.There are a total of 225 claims under this head.  Essentially, the claims are classified by the plaintiff into the following categories[5]:

(1)  Documents of different nature which the plaintiff collated and categorized into a folder/sub-folder for compressing the same into a compressed zip file for passing it to Messrs Robertsons (electronically by email) for the dominant purpose of obtaining legal advice on 17 June 2020.  Files that fall within this category include: 588-624, 663-699, 738-745, 755-762 and 779-815.

(2)  The compressed zip files which were sent to Messrs Robertsons for the purpose of obtaining legal advice on 17 June 2020.  Files that fall within this category include: 625, 700 and 746.

(3)  Documents of different nature which the plaintiff collated, compiled and included into the compressed zip file which was sent to Messrs Robertsons for the purpose of obtaining legal advice on 17 June 2020.  Files that fall within this category include: 626-662, 701-737 and 747-754.

(4)  Documents or files that share the same file path as other claimed items.  The plaintiff believes they were generated due to technical reason.  Files that fall within this category include: 767-778 and 816.

A2.    Claims under Digital Item 513 (Disk 1)

9.There are a total of 254 claims under this head.  Similar to Digital Item 513 (Disk 0) above, the claims are classified by the plaintiff into the following categories[6]:

(1)  Documents of different nature which the plaintiff collated and categorized into a folder/sub-folder for compressing the same into a compressed zip file for passing it to Messrs Robertsons (electronically by email) for the dominant purpose of obtaining legal advice on 17 June 2020.  Files that fall within this category include: 3-30, 94-146 and 229-237.

(2)  Documents of different nature which the plaintiff collated, compiled and included into the compressed zip file which was sent to Messrs Robertsons for the dominant purpose of obtaining legal advice on 17 June 2020.  Files that fall within this category include: 31-93, 147-228 and 238-248.

(3)  Documents or files that were individual pages of the PDF files bearing the same file names as items 238, 240 and 242 in image format.  The plaintiff believes they were generated due to technical reason.  Files that fall within this category include: 249-256.

A3.    Claims under Non-Digital Item 70

10.There are a total of 32 claims under this head (see: paragraph 6(4) above).  It is worth noting that Non-Digital Item 70 in fact refers to a total of 7 clear folders with documents.  The red clear folder was one of the 7 folders and said to be a “working folder” storing information and copy and original documents in relation to the prospective litigation between Apple Daily Printing Limited (“ADPL”) and Hong Kong Science and Technology Parks Corporation (“HKSTPC”) after the same was contemplated, and allegedly compiled and kept for the dominant purposes of keeping the In-house Counsel and the law firm, Messrs Reid-Kay Simon & Associates (“RKSA”) informed and obtaining legal advice from them and/or obtaining evidence or information which may lead to evidence in relations to the subject matter.  On that basis, the plaintiff claims that all of the documents found in that red clear folder are subject to LPP.

11.Within Non-Digital Item 70, there is also an email from RKSA to the In-house Counsel, whereby RKSA provided a legal advice to the Group (defined as the group of Next Digital Limited (Stock Code: 00282)) regarding the litigation contemplated between ADPL and HKSTPC in light of the enquiries made by HKSTPC^[7] (“HKSTPC Enquiries”).

12.The plaintiff submits that the contents of the “working folder” were the end-product of the plaintiff’s collecting, reviewing, selection and compilation process which he carried out for the dominant purpose of seeking a legal advice and/or to use them in anticipated litigation.[8]

13.I pause here to note that the timing for the court’s determination of the plaintiff’s LPP claims is particularly tight, as the plaintiff is due to stand trial before the District Court in DCCC 349/2021 (being one of the criminal cases relating to the search operation) on 14 March 2022 (fixed for 25 days) for a charge of fraud^[9], specifically against HKSTPC as a result of, inter alia, the plaintiff’s concealment from and false representation(s) to HKSTPC in respect of Dico Consultants Limited (“Dico”)’s use of the premises at No 8 Chun Ying Street, Tseung Kwan O Industrial Estate, Tseung Kwan O (the “Premises”) in breach of the relevant lease between ADPL and HKSTPC^[10] (“Fraud Offence”).  It goes without saying that the plaintiff’s LPP claims would have to be determined by the court reasonably in advance of the commencement of the trial on 14 March 2022 to allow sufficient time for necessary further actions following the determination of the claims.

14.The Commissioner’s primary position is that based on the descriptions provided and the information available to the Police, the Disputed Materials are self-evidently not protected by LPP.

B.      RELEVANT BACKGROUND AND CONTEXT

15.The background and context relevant to the application have been summarised in the Skeleton Submissions of the Commissioner dated 12 January 2022 as follows.

16.By an application dated 15 August 1995, ADPL (in its former name Maxhope Limited) submitted an application to the Hong Kong Industrial Estates Corporation (“HKIEC”, now known as HKSTPC) for a tenancy of an industrial site at Tseung Kwan O Industrial Estate on the basis of the printing operations of ADPL (“Lease Application”).

17.On 24 October 1995, an agreement for lease was entered into between ADPL and HKIEC (“Agreement”).  A proposal form signed and submitted by ADPL, which forms part of the Agreement, stated that the Premises will be used for “[t]he publishing and printing of newspapers and magazines using processes as described in the supporting schedules annexed to [the Lease Application]” (“Proposal Form”).

18.On 25 May 1999, ADPL entered into a lease with HKIEC regarding the Premises (“Lease”).  The Lease provided that the Premises may not be used for purposes other than that specified in the Second Schedule to the Lease or such other purpose as HKSTPC may approve of in writing.  The Second Schedule stated that the Premises should be used for “[t]he publishing and printing of newspapers and magazines using processes as described in the [Lease Application] and supporting schedules numbered 398-1 to 398-10 annexed to the [Proposal Form]”.

19.According to HKSTPC’s circular, associated companies of the lessee may use (part of) the Premises subject to the prior written approval of HKSTPC and by way of licence on such terms for such duration and in such form as may be approved by and in conformity with any condition as may be imposed by HKSTPC in its discretion.

20.Dico is a private company incorporated in Hong Kong in 1988.  The scope of its business was “consultancy and management” according to Business Registration records.

21.Lai Chee-ying (“Lai”) has held 50% shares in Dico since 1988 until the present day and Chow Tat-kuen (“Chow”) held the remaining 50% shares from 2016 to 18 June 2020.  Lai has been a director of Dico from 1988 until the present day and Chow was a director from 2016 to 22 May 2020. The plaintiff was the Director of Administration of Next Media Management Services Limited, a subsidiary under Next Digital Limited (“NDL”).  He had maintained an email address [email protected] on behalf of Dico.

22.According to records filed with the Companies Registry, the address of the registered office of Dico had been the Premises since 1 April 1998 until its recent change of address in the circumstances described below.

23.On 13 March 2020, an online media enquired with HKSTPC whether Dico, which conducts businesses other than the printing of newspaper, operated at the Premises.

24.On 23 March 2020, the registered office address of Dico was changed to that of a company services provider in Wanchai ie P&T Corporate Consultants Limited (“P&T”).  A significant portion of the Disputed Materials are emails and documents concerning P&T and other service providers.  It is believed that these relate to Dico’s change of address.

25.Since late March 2020, correspondence ensued between HKSTPC and ADPL.  The plaintiff was a party to some of the correspondence.  These correspondence, which are likely related to the investigation of the Fraud Offence, constitute another significant portion of the Disputed Materials.

26.During the course of correspondence, the plaintiff represented to HKSTPC that Dico “does not occupy and is not operating” on any part of the Premises.

27.However, upon investigation, it was discovered that Dico conducted a wide range of business activities at or through the Premises, including, inter alia (i) providing company services to 22 companies since (earliest) 27 June 2016; (ii) providing management, repair and maintenance services in relation to vessels through the Premises; (iii) providing management service for Lai’s residence at Kadoorie Avenue; and (iv) engaging in applications and correspondence for various insurance policies.  Dico also engaged various services to maintain its activities at and use of the Premises.

28.Furthermore, the Premises were used as Dico’s business registered address and according to records of Mandatory Provident Fund Schemes and Inland Revenue Department records, Dico employed various persons between 1991 and 2020 and had used the Premises as its address in its returns filed as the employer.

29.On 28 April 2020 and 4 May 2020 respectively, HKSTPC conducted two site visits at the Premises.

30.In the past, ADPL had made 11 licensing applications to HKSTPC to allow its associated companies to use the Premises. However, no application was ever made to HKSTPC to obtain its prior written approval for Dico’s operations at the Premises.

31.In about May 2020, the Companies Registry made enquiries with Dico (“CR Enquiry”).  On 17 June 2020, the Commercial Crime Bureau of the Police raided the office of Dico (“CCB Raid”).

32.On 2 December 2020, the plaintiff, Lai and Chow were jointly charged with fraud, contrary to section 16A of the Theft Ordinance, Cap 210 and are due to stand trial in DCCC 349/2021. The particulars of the charge are that Lai, Chow and the plaintiff between 27 June 2016 and 22 May 2020 (both dates inclusive):

“by deceit, namely by:

(i) concealing from [HKSTPC] that the [Premises] or part of the said Premises were not or had not been used as permitted under [the Lease]; and/or

(ii) falsely representing to [HKSTPC] that the said Premises or part of the said Premises were or had been used as permitted under the said Lease;

and with intent to defraud, induced [HKSTPC] to make an omission or a series of omissions, namely not taking action to enforce the rights of [HKSTPC] under the said Lease, which resulted in benefit to [ADPL and/or Dico] or prejudice or a substantial risk of prejudice to [HKSTPC].”

33.Arising from the above context, the plaintiff submits that the Disputed Materials are subject to LPP for the following reasons[11]:

(1)  The files and/or documents under the Disputed Materials are products of the plaintiff’s collecting, reviewing, selection and compilation process (original emphasis of the plaintiff) which he carried out for the dominant purpose of obtaining a legal advice and/or to use them in contemplated litigation.

(2)  The said selection and compilation process carried out by the plaintiff involved the exercising of relevant knowledge (including the knowledge of the circumstances giving rise to the HKSTPC Enquiries, CCB Raid and CR Enquiry), skill and judgement.

(3)  Should these selected/compiled documents be open for inspection, they could give out a clue as to what legal advice was being sought, which would compromise the plaintiff’s right to confidential legal advice as guaranteed under Article 35 of the Basic Law.

C.      DETERMINATION OF THE COURT

34.As regard the plaintiff’s standing to make the LPP claims (a point made at paragraphs 38(b) and 67 of the Skeleton Submissions of the Commissioner), I agree with the points made in paragraphs 7 to 15 of the plaintiff’s Reply Submissions that the plaintiff has (and at all material times had) a common interest with ADPL and/or the Group during the process of obtaining legal advice such that he has the necessary locus to make LPP claims over the Disputed Materials in his own capacity.

35.As to items 53 and 54 under Non-Digital Item 70 (see paragraph 11 above), having inspected the documents in question, I am satisfied that items 53 and 54 are in fact different pages of the same email sent by RKSA to the In-house Counsel (Rosa Ho) wherein a legal advice was given – item 53 contains the first and second pages of the email whereas item 54 contains the last page of the same email.  I am further satisfied that the “fraud exception” does not apply to these documents.  Accordingly, I would uphold the plaintiff’s LPP claim in respect of those two items.

36.Save as aforesaid, I would dismiss the plaintiff’s LPP claims over the Disputed Materials.

37.For the reasons set out at paragraphs 33 to 37; 38(a), (c)-(e); 39 to 60; 64 to 66; 68 to 69; and 71 to 84 of the Skeleton Submissions of the Commissioner, and having considered the table at paragraph 8 and the items referred to at paragraph 5(3) of the Commissioner’s Note of Reply dated 27 January 2022, I am satisfied that the Commissioner has established his position set out, inter alia, at paragraph 5 of his Skeleton Submissions, namely:

(1)  A vast majority of the Disputed Materials are documents in relation to the change of address of Dico to the address of P&T (a company services provider) including company search documents and correspondence between ADPL and P&T regarding the change.  There can be no LPP in the company search documents which are public documents without confidentiality.

(2)  Further, it is well-established that LPP only applies to advice given by lawyers.  Hence, the communications between ADPL and P&T are not privileged.

(3)  Another major category of Disputed Materials is the correspondence between HKSTPC and ADPL concerning the use of the Premises.  First and foremost, no privilege attaches to inter partes communications between opposing or counter parties.  Second, these documents are not communication between ADPL and their legal advisors and therefore do not attract the privilege.  Third, they are obviously not created for the sole or dominant purpose of seeking legal advice or obtaining evidence or information for possible or probable litigation.  Fourth, the mere fact that these documents (which do not attract privilege to begin with) may have been passed to in-house lawyers or solicitors subsequently does not affect the foregoing analysis.

(4)  Moreover, for the reasons set out at paragraphs 48 to 54 of the Skeleton Submissions of the Commissioner, no privilege attaches to the Notes or Internal Records made in relation to HKSTPC.

(5)  Whilst no legal advice privilege or litigation privilege attaches to the above materials (because, for example, they were not created for legal advice), the plaintiff seeks to rely on an exception from Lyell v Kennedy[12] that these Disputed Materials are nevertheless privileged because they were compiled or selected for obtaining legal advice.  As elaborated below, the reliance on this exception by the plaintiff is misconceived both as a matter of law and fact.

38.In particular, in answer to the plaintiff’s submissions set out at paragraph 33 above, and for the reasons set out at paragraphs 74 to 83 of the Skeleton Submissions of the Commissioner, I am satisfied that the “Lyell v Kennedy” exception does not apply in the present case.  In short:

(1)  First, the plaintiff has not provided any explanation as to why or how the compilation of the Disputed Materials could give any clue on the legal advice.  This is particularly so where, the “general rule [is] that non-privileged documents do not, without more,acquire privilege simply because they are copied by a solicitor for purposes of an action.  A non-privileged original document handed to a solicitor for purposes of an action and not copied would seem to be even more remote from any sustainable claim to privilege”: Ventouris v Mountain [1991] 1 WLR 607, at 616F per Bingham LJ (as he then was).  At its highest, “the ratio of [Lyell v Kennedy] is…that where the selection of documents which a solicitor has copied or assembled betrays the trend of the advice which he is giving the client the documents are privileged”: Ventouris v Mountain, 615F.

(2)  Second, in any event, there is no suggestion by the plaintiff that the Disputed Materials are documents collected, selected or compiled by the plaintiff’s legal representatives/advisors.  On the other hand, the plaintiff’s case is that “the files and/or documents under the Disputed Materials are products of P’s collecting, reviewing, selection and compilation process which he carried out…”, ie a “selection and compilation process carried out by P”: see paragraphs 23(1) and (2) of the plaintiff’s Written Submissions.

(3)  Third, another feature of the Lyell v Kennedy exception, which is overlooked by the plaintiff, is that it only applies to a selection made from third party documents, ie documents that were not in the possession of the plaintiff before the selection was made(as opposed to unprivileged documents that were all along in the possession of the party claiming privilege).  In Sumitomo Corpn v Credit Lyonnais Rouse Ltd [2002] 1 WLR 479, Jonathan Parker LJ (delivering the Judgment of the Court of Appeal), said the following:

“76. …A gloss on the principle that a lawyer’s advice is privileged from discovery should not result in the right of a party to refuse discovery of documentary evidence that was in the possession of that party before the selection was made, or copies or translations of such evidence.

77.  In our judgment, therefore, the Lyell v Kennedy principle does not and should not extend to copies - or translations - which represent the fruits of a selection made for litigious purposes from own client documents, and Dubai Bank Ltd v Galadari (No 7) was wrongly decided on this point.” (Emphasis supplied)

(4)  Fourth, and further to the foregoing, based on the available information, the disclosure of the Disputed Materials (not otherwise protected by LPP) is unlikely to betray the trend of legal advice:

(a)  The public documents are standard form documents, the nature of which is very different from photographs (as in the case of Lyell v Kennedy) or records and extract from accounting books (as in the case of Walsham, referred to in Ventouris v Mountain, Supra at 615C).  Assembling annual return forms and company search documents can hardly give any clues on the legal advice (which, in any event, was yet to be given).

(b)  Similarly, inter partes correspondence between HKSTPC and ADPL are unlikely to betray the line of legal advice as they are communications with an opposing party.

(c)  The majority of the remaining documents are concerned with Dico’s change of address.  They include quotations, debit notes, payment instructions etc.  These documents are clearly irrelevant to and cannot reveal the legal advice to be given.  In fact, there is no suggestion that any of these documents record or reflect any legal advice.

39.In the circumstances, given my view as set out in paragraphs 37 and 38 above, it is not necessary for the court to further rule on the Commissioner’s secondary argument, namely, that the Disputed Materials are caught by the “fraud exception”.

D.      CONCLUSION

40.For the reasons set out above, save for items 53 and 54 under Non-Digital Item 70, I hold that the plaintiff is unable to make good his claims of LPP over the Disputed Materials and the claims are accordingly dismissed.

41.I direct that the Commissioner shall be at liberty to inspect, extract and/or otherwise access or use for investigation any part of the Disputed Materials (except items 53 and 54 under Non-Digital Item 70).

42.I order that the costs of the plaintiff’s claims of LPP over the Seized Materials be paid by the plaintiff to the Commissioner, such costs are to be taxed if not agreed (with a Certificate for 3 Counsel).

43.The above order as to costs is nisi and shall become absolute in the absence of any application within 21 days to vary the same.

44.Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.

Mr Patrick Siu, Mr Lawrence Pang and Ms Ferrida Chan, instructed by Messrs Robertsons, for the plaintiff

Mr Jenkin Suen, SC, leading Mr Michael Lok and Ms Ellen Pang, instructed by, and Ms Leona Cheung, PGC (Ag) of the Department of Justice, for the defendant