Citic Pacific Ltd v. Secretary for Justice and Another

CACV 7/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 7 OF 2012

(ON APPEAL FROM HCMP NO. 767 OF 2010)

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JUDGMENT
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The Court:

1.This is a joint judgment to which all members of the court have contributed.

A.   INTRODUCTION

2.Though legal professional privilege (“LPP”) has its origins in the common law, it has since 1997 been constitutionally entrenched in Hong Kong as a basic right under Article 35 of the Basic Law^[1].  Our Court of Final Appeal has repeatedly reiterated that LPP is a fundamental right which the courts will jealously protect, see Solicitor v Law Society of Hong Kong (2006) 9 HKCFAR 175 [14-17]; Akai Holdings Ltd v Ernst & Young (2009) 12 HKCFAR 649 [66-69]; Secretary for Justice v Florence Tsang Chiu Wing (2014) 17 HKCFAR 739 [27-29].

3.The decision of the English Court of Appeal in Three Rivers District Council v Governor and Company of the Bank of England (No 5) [2003] QB 1556 (“Three Rivers (No 5)”) caused concern in the legal profession as to the limitation it placed on the protection given by LPP to companies.  Notwithstanding challenges to Three Rivers (No 5) by counsel (including counsel for the Attorney General, the Bar Council and the Law Society) in the subsequent case of Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610, the House of Lords declined the invitation to review the correctness of that decision.  Likewise, in Akai Holdings Ltd v Ernst & Young, supra, our Court of Final Appeal preferred not to examine the question of legal advice privilege (which would necessitate a closer examination of Three Rivers (No 5) and its applicability in Hong Kong) as they did not have the benefit of the opinion of the Court of Appeal on the same.  Bokhary PJ however remarked, at [102]:

“ Legal advice privilege, being a category of legal professional privilege, is of course to be approached in a manner appropriate to a fundamental right.”

4.The instant case presents an opportunity for this court to review the applicability of Three Rivers (No 5) in Hong Kong.  Inthe court below, amongst other grounds, Wright J applied Three Rivers (No 5) in rejecting the Plaintiff’s claim of legal advice privilege over certaindocuments.  This part of the presentappeal is confined to the proper approach to the definition ofa “client” for the purpose of legal advice privilege.  The question arose in the circumstances described in the following paragraphs.

B.   PROCEEDINGS BELOW

5.On 16 March 2009, a magistrate issued 27 search warrants authorizing the seizure of a large number of documents (including those stored electronically) at different premises in respect of records relating to (i) CITIC Pacific Limited’s Forex contracts in 2007 and 2008 and (ii) announcements published by CITIC Pacific Limited from 1 July 2007 to 15 March 2009.  The background leading to the issue of those warrants wasset out by the learned judge (“the Judge”) in his judgment of 19 December 2011 at [11] to [23] and inthe judgment of the Court of Appeal in the first appeal which is reported at [2012] 2 HKLRD 701.  For present purposes, we do not find it necessary to recite the same here.

6.Pursuant to those warrants, a large amount of documents and computer hard drives were seized.  A blanket claim of LPP was made in respect of all the documentsand other materials.  As a result, the documents were sealed pending the determination of LPP by the court. After some discussions (which were partly fruitful) between theparties’lawyers, there wasstill disagreement over a substantial amount of documents.  Proceedings were therefore commenced by the Plaintiff seeking the return of the documents on the ground of LPP.

7.The proceedings before the Judge took a somewhat unusual course.  The hearing wasdivided into 2 stages.  The first stage focused on several specific documents for which the Plaintiff had partially waived the privilege by producing the same to the SFC.  After a hearing which lasted for 3 days, the Judge gave his first judgment in the proceedings on 18 March 2011.  That judgment was subject to appeal and the appeal was heard in December 2011 before another divisionof this court.  On 28 March 2012, the Court of Appeal delivered judgment allowing the appeal – thiswas the judgment reported at [2012] 2 HKLRD 701.

8.The second stage of the hearings before the Judge took placeover 4 days: 16 & 30 September and 20 & 28 October 2011.  The Judge gave his second judgment on 19 December 2011 [“the December Judgment”].  The scope of the second stage hearing was much wider.  However, inputfrom the parties wasrather limited at these hearings.

9.According to the record kept by hisclerk, the Judge was informed by counsel for the Plaintiff on 16 September 2011 that LPP was claimed in respect of about 1,500 documents butat that stage, those documents had yet to be produced to the court.  Further, because ofthe concern at that stage that permittinginspection by the Defendant for the purpose of these proceedings might constitute waiver of privilegeby the Plaintiff, there was no inspection of the documents by the Defendant.  As a result, counsel for the Defendant could only offer very limited assistance to the court. 

10.The record also showed that the hearings of 16 and 30 September took about half an hour on each occasion and thatthey were more in the nature of directions hearings.  The Plaintiff didnot go through the documents with the Judge.  The affirmations before the Judge did not set out at anylength the relevant context in which each document wasgenerated and how the contents of the documents and their respective context were said togive rise to a claim of LPP (other than by makingsome rather general claims set out in table form).  The documents were actually produced to the Judge after 3 October 2012.  After that, the Judge was asked to look at the documents by himself to come tohis decision on the claims of LPP.

11.On 18 October 2011, the Judge raised some queries by letter and the parties came back to court on 20 October 2011 (with skeleton submissions) to address the same.  Though some of the queries related to a few specific documents, othersrelated to general points.  The hearing of 18 October 2011 only lasted for about 45 minutes.

12.On 28 October 2011, there was another hearing (whichlasted for about halfan hour).  It seemsthat new documents kept coming in and the Judge was concerned about the potential impact they might have with regard to the exercise he had previously conducted on his own in examining documents.

13.During those hearings, whilst counsel did make submissions which assisted in dealing with some items, it wasclearly not a comprehensive review of the context of each and every document.

14.We shall discuss later the proper procedure to be adopted with a view to providing guidance for the future.  However, with great respect, we musthighlight the unsatisfactory consequences of the procedure adopted below.  In our view, the court should not be asked to examine the documents on its own without proper assistance from the parties.  In many respects, the proper assessment of a claim of LPP in respect of adocument requires a full and comprehensive understanding of the relevant context in which the document was created and the roles of the sender and recipient in such context. Sometimes the context may appear on the face of the documents.  Yet very often, the document itself only supplies part of the context.  This is particularly so in cases where a claim of LPP is based on a continuum of communication as explained by Taylor LJ in Balabel v Air India [1988] Ch 317.  Thus, it may not be sufficient for the determination of a claim of LPP simply by examining the contents of a document without being apprised fully of the relevant context.

15.Unfortunately, the Judge did not have the assistance he should have hadfrom the parties.  His own reading of the documents led him to group the documents into the 5 categories he set out at [86] of his December Judgment, against which the present appeal is brought.  As the Judge himself noted at that paragraph, a givendocument may fall into more than one category.

16.For present purposes, the relevant category is category 2, which the Judge described as follows:

“ The document relates to, or the communication includes, gathering of information from ‘third parties’ being employees of the plaintiff other than the Group Legal Department.”

As can be seen from Schedule 1 to the December Judgment, the Judge held that these documents were notprotected by LPP.

17.After the Judge had discussed Three Rivers (No 5) at [53] to [67] of the December Judgment, he concluded that its application in the present context means that the client of the legal advisers was the Group Legal Department and the other employees of the Plaintiff (including a Mr RickyChoy who was a qualified solicitor in the Company Secretariat Department and had communicated with the external lawyers in respect of the matter) should be regarded as “third parties”.  And because of that, privilege would not be attached to their communications whether they were sent directly from such employees to the external lawyers or collected through the Group Legal Department with the intention that they shouldbe submitted to the external lawyers^[2].                 

18.The Judge however madean exception in relation to members of the Board of Directors of the Plaintiff on the basis that it was clear that the Group Legal Department acted under their direction^[3].

19.In view of the way in which the matter had proceeded before the Judge and the procedure adopted for his reading of the documents on his own, coupled with the quantities of documents involved, it wasunderstandable for the Judge to say at [88] of the December Judgment:

“ To provide individual reasons for the classification of every individual document with a detailed description of each document would result in this decision being delayed inordinately and the produce being so large as effectively to be unwieldy. The reason for the classification should be self-evident from the descriptions or, where necessary, a perusal of the document.”

C.   FOCUS OF THIS APPEAL

20.However, the manner in which the Judge decided the privilege claims presents difficulties on appeal.  Putting aside the obvious inefficiency of setting aside several days (if not weeks) of the diary of a division of the Court of Appeal to examine these documents, there is no way to tell whether what counsel perceived to be the context for each document is the same as what the Judge perceived it to be.  And what has been said above in respect of the difficulties in ascertaining the relevant context without meaningful assistance from the parties applies equally in the Court of Appeal.

21.Though counsel for the Plaintiff had chosen several documents as illustrations and did notask us to go through each and every document, the grounds of appeal covered diverse aspects relating to the claims for privilege.  After reading the skeleton submissions of the parties, we came to the view that it would be difficult for the appeal to proceed properly and efficiently without some agreed statement on context beingplaced before us.  We therefore set out ourconcerns in a letter of 30 April 2015 and held a directions hearing that afternoon.  Counsel very helpfully informed us at the directions hearing that consensus had been reached between the parties so that the Respondent could inspect the documents with a view to providing the necessary assistance to the court.

22.In view of the time that would be neededfor the exercise, it would not have been viable to proceed with the appeal on the grounds other than the one concerningThree Rivers (No 5).  It was however agreed that, in order to makemeaningful use of the time originally allotted for the appeal, we coulddeal with this particular ground of appeal.  We werealso informed that if this ground were to beresolved, the scope of theremaining disputes might be substantially cut down.

23.Under such circumstances, we agreed to proceed on this part of the appeal confining ourselves to the appeal on the Three Rivers (No 5) point.  The rest of the appeal was adjourned with liberty to restore after we handed down our judgment on this part of the appeal.

24.In the course of the appeal, the parties also invited us to give guidance on how dispute relating to claims of privilege should be handled if similar circumstances were to arise in the future.

C1.   The decision in Three Rivers (No 5)

25.The Judge had summarized the facts of that case when he discussed Three Rivers (No5).  We shall not repeat the same in this judgment.  We would, however, highlight the following:

(1) The Bingham inquiry was set up by the government as a private inquiry and the Bank of England participated in it as a national institution gathering evidence to put before the inquiry.  This obviously played an important part in the Court of Appeal’s assessment of the purpose of the Bank in procuring the materials in question, see [34] to [37];

(2) The bank claimed privilege in respect of four categories of documents (set out at the headnotes at p.1556E to F).  The Court of Appeal rejected the claims in respect of all four categories. In this part of the appeal, we are not concerned with documents prepared by ex-employees which was the fourth category in that case.

26.In respect of the key issue which concerns us in this appeal, the reasoning of the Court of Appeal was as follows:

(1) Legal advice privilege was a distinct category of LPP from litigation privilege.  Three Rivers (No 5) focused on legal advice privilege because it was conceded by the bank in that case that it could not rely on litigation privilege, see [1] and [2].

(2) Counsel for the claimants equated the documents prepared by the bank’s employees with other raw materials which should be disclosed on discovery even though such documents were prepared for submission to the solicitors, see [4] and [5].  He further submitted that legal advice privilege only protected communications between solicitor and client but not preparatory materials obtained by the BIU from other employees for the dominant purpose of being shown to the solicitors, see [5].  

(3) The Court of Appeal noted that the distinction between litigation privilege and legal advice privilege emerged in Anderson v Bank of British Columbia (1876) 2 Ch D 644, see [12] to [14].  Longmore LJ summarized the distinction at [14] in these words:

“ … information given by an employee to an employer or fellow-employee, or information given by an agent to a principal, stands in the same condition as matters known to the client and does not, of itself, attract [legal advice privilege] … even though, on the facts, it is intended that it be shown to a solicitor. If, however, it is intended that the information will be shown to a solicitor in the context of existing or contemplated litigation, it will fall into the second category, whether it was obtained for use as evidence or for the purpose of obtaining advice.”

(4) The learned judge reviewed the development of the common law on privilege by reference to English authorities.  After such review, at [26], he put forward two bases for distinguishing the two categories of privilege:

(a) The need for a client to makea clean breast of things to his legal adviser is of much greater force when litigation either exists or is contemplated;

(b) In respect of legal advice privilege, as communications with other advisers are not covered by privilege, the law must confine it to its proper limits, viz it should only apply to communications between client and legal adviser.

(c) Through his review of the case, the learned judge concluded that there was no justification for extending the rule in litigation privilege relating to materials in the brief^[4] to legal advice privilege, see the commentaries after the citation from those authorities at [8], [11], [14], [15], [16], [18].  See also [24] and [25].

(d) The core proposition was set out at [19]:    

“ … legal advice privilege did not apply to documents communicated to a client or his solicitor for advice to be taken upon them but only to communications passing between that client and his solicitor (whether or not through any intermediary) and documents evidencing such communications.”^[5]

(e) In that statement, the contrast was made between communications from third parties either to a client or a solicitor for the purpose of legal advice sought by the client and  communications between the solicitor and client.

(f) In terms of identifying the client, the court made this finding at [31]:

“ … on the evidence before the court, the BIU, which was established to deal with inquiries and to seek and receive Freshfields’ advice, is for the purpose of this application, the client rather than any single officer however eminent he or she may be…”

(g) Echoing the submissions of counsel for the claimants, communications between employees andtheBIU were regarded as internal memoranda or materials preparatory to consultation with the solicitor and as such not protected by legal advice privilege, see [8] at p.1565B to C; [14] as cited above.    

27.There are two key propositions in such reasoning which are relevant for the present appeal:

(1) information obtained from third parties is not protected by legal advice privilege as the authorities which support the coverage of materials in the brief were only decided in the context of litigation privilege and the scope of legal advice privilege is confined to communications between client and solicitor; and

(2) internal communications between employees for the purpose of getting information for legal advice stand on the same footing as information obtained from third parties because of Anderson.

28.In this part of the appeal we are not directly concerned with the position of the third parties.  Whether the shift in the raison d’ être of LPP would lead to a shift in the scope of LPP in legal advice privilege will be a matter for consideration on another occasion.  For present purposes, we can concentrate on the position of internal communications between employees.

C2.  The raison d’ être of LPP

29.In Greenough v Gaskell (1833) 1 My & K 98, before a clear demarcation had been drawn between litigation privilege and legal advice privilege, Lord Brougham LC explained the foundation of LPP in these words:

“ ... it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on, without the aid of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If the privilege did not exist at all, every one would be thrown upon his own legal resources; deprived of all professional assistance, a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case. If the privilege were confined to communications connected with suits begun, or intended, or expected, or apprehended, no one could safely adopt such precautions as might eventually render any proceedings successful, or all proceedings superfluous.”

30.This wassaid at a time when the need for legal professional assistance arose mainly in the conduct of business in courts. Even then, the Lord Chancellor was of the view that LPP could not be restricted to situations where litigation was contemplated.  In the modern world, developments in the rule of law increasethe need for legal advice and the justification for theprotection affordedby LPP can arise in every aspect of our daily life.  This was highlighted by Wilson J in Baker v Campbell (1983) 153 CLR 52 at 95:

“ …the extension of the privilege … beyond communications between the client and his professional adviser in relation to pending or anticipated litigation to embrace any communications undertaken with the object of seeking or give legal advice serves, in my opinion, to emphasize that the public interest involved extends beyond legal proceedings. In fostering the confidential relationship in which legal advice is given and received the common law is serving the ends of justice because it is facilitating the orderly arrangement of the client’s affairs as a member of the community. Furthermore, in promoting the faithful discharge of his responsibilities and the enjoyment of his rights under the law the ends of justice are being served. It is in the public interest to encourage the service of such ends.

The multiplicity and complexity of the demands which the modern state makes upon its citizens underlines the continued relevance of the privilege to the public interest. …

… The freedom to consult one’s legal adviser in the knowledge that confidential communications will be safeguarded will often make its own contribution to the general level of respect for and observance of the law within the community.”

31.Thus, in Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121, the High Court of Australia expressed the rationale for LPP in the non-litigious context in terms of fundamental rights in furtherance of the rule of law.  McHugh J said at p.161:

“ Now that this Court has held that legal professional privilege is not a rule of evidence but a substantive rule of law, the best explanation of the doctrine is that it is ‘a practical guarantee of fundamental, constitutional or human rights. By protecting the confidentiality of communications between lawyer and client, the doctrine protects the rights and privacy of persons including corporations by ensuring unreserved freedom of communication with professional lawyers who can advise them of their rights under the law and, where necessary, take action on their behalf to defend or enforce those rights. The doctrine is a natural, if not necessary, corollary of the rule of law and a potent force for ensuring that the equal protection of the law is a reality.”

32.To the same effect, Brennan J said at p.127:

“ In my opinion, the basic justification for allowing the privilege is the public interest in facilitating the application of the rule of law.

Administration of the law is not the function of the courts alone.  The law is administered more frequently and more directly by legal advisers than it is by judges.  Legal professional privilege ensures that the law’s writ can run effectively whenever a legal problem arises or a person seeks to chart a course of conduct in conformity with law.”

33.English jurisprudence also accepts the notion that LPP is a fundamental human right even in the non-litigious context.  R (Morgan Grenfell Ltd) v Special Commissioner [2003] 1 AC 563 was a case in which an inspector of taxes sought disclosure by a bank of its instructions to counsel for advice on a tax scheme devised by the bank.  At [7] of the judgment, Lord Hoffmann highlighted the fundamental nature of LPP.    

34.In Balabel v Air India [1988] 1 Ch 371, Taylor LJ said at p.330 D to G:

“ Although originally confined to advice regarding litigation, the privilege was extended to non-litigious business. Nevertheless, despite that extension, the purpose and scope of the privilege is still to enable legal advice to be sought and given in confidence. In my judgment, therefore, the test is whether the communication or other document was made confidentially for the purposes of legal advice. Those purposes have to be construed broadly. Privilege obviously attaches to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice. But it does not follow that all other communications between them lack privilege. In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice may be required or appropriate on matters great or small at various stages. There will be a continuum of communication and meetings between the solicitor and client. The negotiations for a lease such as occurred in the present case are only one example. Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach. A letter from the client containing information may end with such words as ‘please advise me what I should do.’ But, even if it does not, there will usually be implied in the relationship an overall expectation that the solicitor will at each stage, whether asked specifically or not, tender appropriate advice. Moreover, 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.”

35.In Three Rivers DC v Bank of England (No 6) [2005] 1 AC at [30] to [33], Lord Scott reviewed the authorities on the justification for LPP in anon-litigious context.  His Lordship summed up the position at [34]:

“ None of these judicial dicta tie the justification for legal advice privilege to the conduct of litigation. They recognise that in the complex world in which we live there are a multitude of reasons why individuals, whether humble or powerful, or corporations, whether large or small, may need to seek the advice or assistance of lawyers in connection with their affairs; they recognise that the seeking and giving of this advice so that the clients may achieve an orderly arrangement of their affairs is strongly in the public interest; they recognise that in order for the advice to bring about that desirable result it is essential that the full and complete facts are placed before the lawyers who are to give it; and they recognise that unless the clients can be assured that what they tell their lawyers will not be disclosed by the lawyers without their (the clients') consent, there will be cases in which the requisite candour will be absent. It is obviously true that in very many cases clients would have no inhibitions in providing their lawyers with all the facts and information the lawyers might need whether or not there were the absolute assurance of non-disclosure that the present law of privilege provides. But the dicta to which I have referred all have in common the idea that it is necessary in our society, a society in which the restraining and controlling framework is built upon a belief in the rule of law, that communications between clients and lawyers, whereby the clients are hoping for the assistance of the lawyers' legal skills in the management of their (the clients') affairs, should be secure against the possibility of any scrutiny from others, whether the police, the executive, business competitors, inquisitive busybodies or anyone else (see also paragraphs 15.8 to 15.10 of Zuckerman's Civil Procedure (2003) where the author refers to the rationale underlying legal advice privilege as "the rule of law rationale"). I, for my part, subscribe to this idea. It justifies, in my opinion, the retention of legal advice privilege in our law, notwithstanding that as a result cases may sometimes have to be decided in ignorance of relevant probative material.”

The relevant paragraphs in Zuckerman's Civil Procedure now appear at paragraphs 16.9 to 16.13 of the current edition.  See also the discussion of Lord Carswell at [103] to [115] on the rationale for legal advice privilege and the citation at [95] from the opinion of the learned Advocate General in AM & S Europe Ltd v Commission of the European Communities [1983] QB 878 at p.913; and Lord Rodger at [55] to [56].

36.In Hong Kong, as observed at the beginning of this judgment, LPP is entrenched by Article 35 of the Basic Law.  In that article, no distinction is drawn between legal advice for purposes related to actual or contemplated litigation and legal advice in the context of non-litigious business.  It simply provides that Hong Kong residents shall have the right to confidential legal advice.  In Stock Exchange of Hong Kong v New World Development (2006) 9 HKCFAR 234 at [48], Ribeiro PJ highlighted that the right to confidential legal advice subsisted even where such advice does not bear on any existing or contemplated court proceedings.

37.We respectfully agree with the rule of law rationale for LPP as explained in these authorities.  We are of the view that it should also be applicable in Hong Kong as it is perfectly consonant with LPP being constitutionally protected to reinforce the rule of law as a core value in our society.

38.As a fundamental right, LPP does not involve a balancing of interests, see Secretary for Justice v Florence Tsang Chiu Wing, supra, [29] per Ribeiro PJ and B v Auckland District Law Society [2003] 2 AC 736.  Thus, we should not engage in the exercise ofassessing whether the public interest in having relevant information for the prosecuting authority should outweigh the public interest of protecting materials which are subject to LPP.

39.The question we have to decide is whether the Judge was correct in holding that in the context of legal advice privilege, LPP only covers direct communications between those in the Group Legal Department and the external lawyers.  Whilst the Judge was of the view that he should follow Three Rivers (No 5), the decision of the English Court of Appeal is not an authority binding on us.  There are authorities from other common law jurisdictions pointing in the other direction, notably the decision of the Federal Court of Australia in Pratt Holdings v Commissioner of Taxation (2004) 136 FCR 357 and that of the Singapore Court of Appeal in Skandinaviska Enskilda Banken v Asia Pacific Breweries [2007] 2 SLR 367.  Counsel also referred us to the decision of the U.S.  Supreme Court in Upjohn v United States (1981) 449 US 383 and a decision of the Court of Appeal in the District in Columbia Circuit in Re Kellogg Brown & Root Inc (unreported) Case No 14-5055.  In the circumstances, we need to examine whether the approach adopted by the Judge is too narrow in light of the underlying rationale for LPP as discussed above.  

C3.  The proper limit of legal advice privilege – the dominant purpose test

40.One of the reasons given by the English Court of Appeal in Three Rivers (No 5) for a restrictive approach in identifying the client for the purpose of legal advice privilege was the proper limit of such privilege in light of the lack of privilege in respect of other professions.  At [26], Longmore LJ said:

“ …The judges of the 19^th century thought that it should only apply to communications between client and adviser. That is the proper compass of the privilege. It is not, in our judgment, open to this court to extend the privilege, even if we thought we should.”

41.We agree that legal advice privilege should not be without limits.  However, before we examine its proper limits in terms of the approach in identifying the client in a corporate setting, it is necessary to have regard to other limits or potential limits.

42.As mentioned, the argument of counsel for the claimants in Three Rivers (No 5) equated documents prepared by employees with raw material^[6]. There is no doubt that raw material (viz original documents which come into existence during the course of the transaction or event, not created for the purpose of legal advice) is not protected by LPP.  That is so even in the context of litigation privilege, see Ventouris v Mountain [1991] 1 WLR 607.  It is not disputed before us that the position is the same in respect of legal advice privilege.

43.Generally, copies of such raw material are not protected by privilege even though such copies were forwarded to or made by a solicitor for litigious purposes unless the   selection of documents could betray the nature or trend of advice (the Lyell v Kennedy exception^[7]). Thus, a party cannot object to the production of a copy because he has made that copy for his solicitor if he is under an obligation to disclose the original document.  Again, we do not understand Mr Thompson QC to be disputing this proposition in the context of legal advice privilege.

44.Further, legal advice privilege does not embrace all communications between solicitor and client.  It only coverscommunications which form part of the necessary exchange of information of which the object is the giving of legal advice as and when appropriate, see Taylor LJ in Balabel v Air India, supra, p.331-2[8].  In Three Rivers (No 5) Tomlinson J (as he then was) in the first instance court formulated the following test[9]:

“ an internal confidential document, not being a communication with a third party, which was produced or brought into existence with the dominant purpose that it or its contents be used to obtain legal advice is privileged from production.”

45.When the case subsequently went to the House of Lords in Three Rivers (No 6), supra,Lord Carswell[10] described the reasons of Tomlinson J as having considerable force.

46.Based on the judgment of Barwick CJ in Grant v Downs (1976) 135 CLR 674 at 677^[11] (adopted by the House of Lords in Waugh v British Railways Board [1980] AC 521 in the context of litigation privilege), the dominant purpose test was also adopted in Australia in Pratt Holdings v Commissioner of Taxation, supra., which the Singapore Court of Appeal was minded to follow in Skandinaviska Enskilda Banken v Asia Pacific Breweries, supra.

47.From the judgment of the majority in Grant v Downs, supra (particularly at p.686 to 688), it can be seen that though the facts of the case arose in a context where litigation privilege was more pertinent, the mischief that the High Court had to deal with was about how LPP should apply in respect of communications within a corporation and Anderson v Bank of British Columbia, supra, was discussed at length^[12]. Though Barwick CJ adopted the dominant purpose test whilst the majority adopted the sole purpose test, all members of the High Court focused on the purpose for which the document came into existence as the control for undue extension of the privilege.  None of them considered it necessary to adopt a narrow definition of client to address the mischief.  In our view, similar problems in the context of legal advice privilege can be resolved by a similar means of control.

48.In Waugh v British Railways Board, the House of Lords carefully considered different options and concluded that the dominant purpose test was the right touchstone for deciding whether a document was protected by LPP in the litigation context.  With the shift of focus in the rationale for LPP as a necessary incident of the rule of law as discussed above, we do not see any reason why the dominant purpose test should not be adopted as an appropriate control over the limit of the legal advice privilege.

49.Different views were held as to whether the dicta of Barwick CJ in Grant v Downs, supra, dealt only with litigation privilege: Longmore LJ in Three Rivers (No 5) considered that it had nothing to do with legal advice privilege whilst Finn and Stone JJ in Pratt Holdings v Commissioner of Taxation and Tomlinson J in Three Rivers (No 5) considered that it applied generally to both litigation privilege and legal advice privilege.  We do not find it necessary to decide to which view we should subscribe in this respect.  We prefer to analyse the issue as a matter of principle, bearing in mind its constitutional entrenchment under Art 35 of the Basic Law, and consider the scope of legal advice privilege in Hong Kong by reference to the rationale for LPP as discussed earlier.

50.In our view, the dominant purpose test is capable of effectively screening out unmeritorious claims for LPP.  In this connection, we respectfully agree with the observations of Stone J in Pratt Holdings v Commissioner of Taxation, supra at 386-7 on the application of such a test in respect of a document produced for multiple purposes.  We would also highlight what Taylor LJ said in Balabel v Air India, supra at p.331-332 in this regard. 

C4.  The restrictive approach in Three Rivers (No 5) not preferred

51.Having discussed the other limits or potential limits on legal advice privilege, we can now examine the approach in defining a client adopted in Three Rivers (No 5).  As we have seen, instead of employing the dominant purpose test (as applied by Tomlinson J in the first instance), the English Court of Appeal defined the limit of legal advice privilege by adopting a narrow definition of client.  Thus, internal communications between employees were equated with information from third parties and pre-existing knowledge of a client and as such not protected by legal advice privilege.

52.With the greatest respect, we do not agree that a narrow definition of client should be adopted as the proper limit for legal advice privilege.  As we have discussed, documents which were generated in the course of a transaction or event are not protected by LPP, whether litigation privilege or legal advice privilege.  The production of such documents or copies of the same to a solicitor cannot alter their character.  And the same rule applies whether the client is an individual or a corporation.  Knowledge acquired from such primary documents can also be the subject of interrogatories.  Alternatively, as there is no property in witnesses, the relevant employees can be subpoenaed to give evidence based on his knowledge of those primary documents. 

53.However, the processing of such knowledge and the reduction of such knowledge into a documentary form for the purpose of seeking legal advice (whether for litigation purpose of for non-litigious purpose) is different.  If such document comes into existence as part of a process in the communication with a lawyer with a dominant purpose of getting legal advice, the compulsory disclosure of the same would impinge on the confidential communication between a client and his lawyer.  Prima facie, the right to confidential legal advice under Art 35 of the Basic Law is engaged.

54.It is meaningless to have a right to confidential legal advice if the protection is confined to communications setting out the legal advice.  Lawyers need to have the relevant information from their clients before proper advice can be given.  Thus, it is a necessary incidence of the right to confidential legal advice that the whole process is protected by privilege so as tosafeguard the confidentiality.

55.In the context of a corporation, where the necessary information may have to be acquired by the management from employees in different departments or at various levels of the corporate structure, there is a need to protect the process of gathering such information for the purpose of getting legal advice.  It would be meaningless to have a right to confidential legal advice if the management is hampered in such process by the concern that statements taken in that process could be open to discovery.  Additionally, particularly in the present day, it is unlikely that a small group of employees within the legal department of a corporation would be likely to have all the technical knowledge or skills that may be required to obtain information for, and put together, suitable instructions to the corporation’s lawyers.   To adopt a restrictive definition of who constitutes the client in such circumstances would be just as likely to impinge upon the ability of the corporation to seek and obtain meaningful and useful legal advice, since it might well discourage those defined as the client for the purposes of legal professional privilege from seeking the input or assistance of other employees who might be better qualified or able to provide it.  In Upjohn v United States, supra, Justice Rehnquist explained why the control group test (which is similar to, though not the same as, the narrow definition of client adopted in Three Rivers (No 5)) would frustrate the very purpose of LPP.  At p.390-1, the learned judge said:

“ Such a view, we think, overlooks the fact that the privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice … The first step in the resolution of any legal problem is ascertaining the factual background and sifting through the facts with an eye to the legally relevant …

In the corporate context …it will frequently be employees beyond the control group as defined by the court below … who will possess the information needed by the corporation’s lawyers.  …”

At p.392, he summed up the difficulties of adopting the control group test:

“ The control group test adopted by the court below thus frustrates the very purpose of the privilege by discouraging the communication of relevant information by employees of the client to attorneys seeking to render legal advice to the client corporation. The attorney’s advice will also frequently be more significant to non-control group members than to those who officially sanction the advice, and the control group test makes it difficult to convey full and frank legal advice to the employees who will put into effect the client corporation’s policy ….

The narrow scope given the attorney-client privilege by the court below not only makes it difficult for corporate attorneys to formulate sound advice when their client is faced with a specific legal problem but also threatens to limit the valuable efforts of corporate counsel to ensure their client’s compliance with the law.”

56.We respectfully agree with those observations and they could, in our respectful view, equally be made in the Hong Kong context if we were to adopt a narrow definition of client for the purpose of legal advice privilege.  We do not find any material difference between the laws on LPP in the United States and those in Hong Kong which renders these remarks inapplicable here.  Upjohn was cited as an authority by counsel for the Bank in Three Rivers (No 6) (at p.617 and 636-7).  Lord Scott also referred to Upjohn in his discussion of the purpose of LPP, see [31].

57.Mr Thompson invited us to consider the submissions of counsel for the Bank[13] in Three Rivers (No 6).  The submission that was advanced by reference to Upjohn was that the identity of the client in a corporate LPP context should be ascertained by referring to the policy justifying the privilege (at p.617A).  As privilege protects not just the advice but also the process of disclosing the facts that leads to the advice, it should cover documents created by a client for the purpose of obtaining advice even though it contains factual information, including preparatory material.  In this regard, there should not be any distinction between an individual litigant and a corporation (p.637B to E).

58.These are powerful submissions.  To the same effect was the analysis of Tomlinson J at first instance in Three Rivers (No 5) at paragraphs 20 to 31.  In particular, we respectfully agree with what the learned judge said at paragraph 30:

“ …If the principle is that a person should not be in any way fettered in communicating with his solicitor, and must not be fettered in preparing documents to be communicated to his solicitor, it must be axiomatic that it is the confidentiality of the whole process of communication which requires protection, not just those documents which can be recognized as comprising the actual or final communication. This becomes particularly obvious when one considers the case of a corporation which can only act through individuals, perhaps needing to act through many. It would to my mind be wholly artificial, and not in any way consonant with the rationale underlying the principle, to confine protection to documents which are actually intended to be handed to the legal adviser or to serve as an aide-memoire whilst imparting information to him and seeking his advice thereon. If the protection were so confined it would lead, I think, to somewhat arbitrary and capricious distinctions. In modern conditions it would be unduly restrictive of the ability of a corporation to prepare in confidence for consultation with its legal adviser.”

59.The House of Lords in Three Rivers (No 6) did not endorse the doubt cast on the rationale for legal advice privilege by the Court of Appeal in Three Rivers (No 6) and Three Rivers (No 5).  We agree with Mr Thompson that in light of the new focus of the rationale for legal advice privilege as a necessary support for the rule of law, we should, with respect, adopt a more liberal approach and reject the narrow definition of client in Three Rivers (No 5).  In our judgment, there is a mismatch between a narrow definition of client and the proper limitation of legal advice privilege.  It can, we think, be said that the client is simply the corporation, and that the question is really one of which of its employees should be regarded as being authorized to act for it in the process of obtaining legal advice.   As we have suggested earlier, there are good reasons why such employees should not be restricted to select members of the corporate legal department and we see no good reason why such restriction is required.  As we shall demonstrate below by reference to some of the examples which Mr Thompsoncited to us in respect of the documents seized in the present case, such a test would exclude the protection of LPP in respect some documents which were plainly created for the purpose of seeking legal advice and should have been protected from discovery.  The dominant purpose test is, to our mind, demonstrably more appropriate in setting the proper limits to legal advice privilege.   

60.We do not think we are constrained by theauthorities from so holding.  As we mentioned earlier, the Court of Final Appeal in Akai Holdings Ltd v Ernst & Young, supra, did not examine Three Rivers (No 5).  Neither did the Court of Appeal in Akai Holdings[14] consider whether Three Rivers (No 5) should be followed in Hong Kong.  At first instance, Kwan J (as she then was) did refer to legal advice privilege[15] and Three Rivers (No 5).  However, since that case was concerned with the transcripts of examination, understandably the arguments did not focus on Three Rivers (No 5) and the learned judge did not find it necessary to discuss the issues with which we are concerned in this appeal.

61.In Three Rivers (No 5), the English Court of Appeal apparently derived the narrow definition of client from Anderson v Bank of British Columbia, supra.  That was an old case and as observed by Bingham LJ in Ventouris v Mountain, supra, the case would be decided differently today.  It is noteworthy that the case was cited mostly for the statements of the law in the speech of George Jessel MR[16] and that of James LJ[17] than its actual decision.  There was nothing in the statements of principle which mandates the adoption of the narrow approach of Three Rivers (No 5).  In Three Rivers (No 6), counsel for the Law Society[18] made a compelling submission that Anderson did not support the narrow definition of client as held by the Court of Appeal in Three Rivers (No 5).  We respectfully agree.  Whilst it is readily understandable why the court in Anderson was anxious to have the information of the Oregon agent available to the court in an age where trans-border discovery might not be as efficient and effective as what we are now used to, we respectfully take the view that in that case insufficient regard was paid to the distinction between the knowledge of a member of staff (or agent) and the reduction of such knowledge into writing for the purpose of seeking legal advice.  In this connection, Mr Thompson drew our attention to the commentary in Higgins, Legal Professional Privilege for Corporations (2014) at paragraphs 3.67 to 3.71 where the learned author made the same point.  See also Thanki, The Law of Privilege at paragraphs 2.13-15 and 2.40-2.41.

62.On the facts, the decision of Jessel MR in Anderson was premised on his finding at p.648 that the document in question was not prepared by the agent for the purpose of getting legal advice.  Had it been otherwise, the learned judge was of the view that it would be protected.  See also p.650 where the statement of principle clearly envisaged that information collected by the client at the request of a solicitor for advice would be privileged.  In the Court of Appeal, the judges also proceeded on the same basis as to the purpose for the preparation of the document, see the observations of Mellish LJ at p.655, James LJ at p.657.  In the judgment of the Court of Appeal, there were statements to the effect that a principal could not hide behind the excuse that he had no knowledge of the matter as it was handled by his agent.  We have no quarrel with that proposition.  But this only means that the principal is obliged to answer interrogatories or to give discovery of documents which the agent holds on his behalf.  It cannot and shouldnot require the principal to give discovery of a statement obtained for the specific purpose of seeking legal advice.

C5.  The approach for Hong Kong – the dominant purpose test

63.To sum up, we respectfully disagree with the restrictive definition of client in the context of legal advice privilege as laid down by the Court of Appeal in Three Rivers (No 5).  As the rationale for LPP (as explained above) is equally applicable to litigation privilege and legal advice privilege, there has to be effective and meaningful protection for confidentiality in the process of obtaining legal advice in the litigious as well as the non-litigious context.  A restrictive definition of client would tend to frustrate the policy of LPP and it cannot be the right test for identifying the proper limit for legal advice privilege.  In our judgment, the dominant purpose test as expounded by Tomlinson J in Three Rivers (No 5) sets the proper limit for legal advice privilege.  It is sound in principle and is consistent both with the authorities and with the fundamental nature of LPP as guaranteed under Art 35.  We hold that this should be the test to be adopted in Hong Kong.

C6.  Specific examples of documents excluded by the judge by his application of Three River (No 5) which would have been treated differently upon application of the dominant purpose test

64.In paragraph 58 above, we mentioned that we had had our attention drawn by Mr Thompson to specific examples from the documents seized where the Judge’s adoption of the test enunciated in Three Rivers (No 5)resulted in excluding from the protection of LPP documents which were plainly created for the purpose of seeking legal advice and should have been protected from discovery.

65.The first of these was an email from Mr Ricky Choy to Ms Carmen Kwok of Messrs Clifford Chance dated 29 October 2008, in which the assistance of Clifford Chance was sought in drafting an announcement to be made for the purpose of providing further information to shareholders and the public[19].  This email sets out a number of the preceding emails in the chain of which it forms a part.  As we have noted earlier, Mr Ricky Choy was a qualified solicitor who was employed by the Plaintiff within its Company Secretariat Department (as distinct from the Group Legal Department).  On the test for LPP applied by the Judge, this document was not protected by LPP, as it was not sent by a member of the Plaintiff’s Group Legal Department to Messrs Clifford Chance.  However, even in the absence of evidence from the Plaintiff as to the context in which the document came into existence, it seems clear to us that it is a document by which legal advice was being sought, and, as such, should have been cloaked with the protection of confidentiality conferred by LPP.  In particular, it is clear from the email itself (and others within the chain) that members of the Plaintiff’s Group Legal Department were included among those to whom the exchange was copied, lending further credence to the view that it is a document that concerns the obtaining of legal advice, which should in principle be protected from disclosure.

66.The next document to which Mr Thompson drew our attention was an email from a Simon Chui of the Plaintiff to Mr Jonathan Hsui (also of Clifford Chance) dated 12 November 2008[20]. This email was copied to, among others, Mr Ricky Choy.  It provides estimates of mark-to-market and realised losses in respect of the foreign exchange contracts with which these proceedings are concerned, as at 11 November 2008. Mr Thompson explained that this document came into existence at a time when, a profit warning announcement having earlier been made, the Stock Exchange was asking for a further announcement to be made.  Again, it appears clear that this was information that was being provided to the Plaintiff’s solicitors for the purpose of seeking legal advice from them, no doubt in connection with the further announcement that was being asked for.  But again, on the test for the availability of LPP adopted by the Judge, this document was denied the protection of confidentiality when it would seem clear that it should have had such protection.  Moreover, it was denied such protection despite being a communication for the purpose of obtaining legal advice simply because Mr Simon Chui, although an employee of the Plaintiff who was presumably authorised to supply such information to the Plaintiff’s solicitors, was not a member of the Plaintiff’s Group Legal Department.

67.The third specific document to which Mr Thompson directed our attention was an earlier exchange of email correspondence between from Mr Ricky Choy and Mr Nicholas Hunsworth of Messrs Mayer Brown JSM dated between 6 and 14 October 2008[21]. The emails were copied to Patricia Shih, of the Plaintiff’s Group Legal Department.  At the time, Mayer Brown JSM (and Mr Hunsworth in particular) were the solicitors advising the Plaintiff in relation to the foreign exchange contracts that had been entered into, and matters arising as a result of those contracts[22].  It is plain from the emails that they recorded the seeking and provision of legal advice.  However, because of Mr Choy’s position within the Plaintiff, these documents, too, were denied the protection of LPP that they merited.

68.It will be clear from these examples that it will be necessary to re-evaluate the documents seized in order to ascertain which of those which were held by the Judge not to be protected by LPP in fact merits the protection of LPP, in the light of the dominant purpose test which we have held should be applied. 

D.   Guidance on the procedure to be adopted

69.In the beginning of this judgment, we have highlighted the unsatisfactory aspects of the procedure by which the matter had proceeded before the Judge.  With a view to providing guidance on the procedure for more effective disposal of LPP claims in the future, especially in cases involving voluminous documents seized on the strength of a search warrant, we have invited the parties to provide us with their proposals as to the appropriate procedureto be followed.  We also asked Mr Thompson, who has substantial experience in the processing of LPP claims in England, to give us a short note on the English procedure of instructing anindependent lawyer to deal with LPP materials.  We are grateful to the parties and Mr Thompson for their assistance.

70.In England, a practice has grown up since at least 2000 whereby, in a case where the premises to be searched are likely to have on them privileged documentation, the relevant law enforcement authority would instruct an independent lawyer to attend on the search to identify LPP materials or to deal with a claim to LPP by the occupier of the premises. Although there is no statutory basis for this practice, it has received judicial blessings in R v HM Customs & Excise, exp Popley [1999] STC 1016 and R v Middlesex Guildhall Crown Court, exp Tamosius & Partners [2000] 1 WLR 453.

71.In the more recent case of R (Rawlinson & Hunter Trustees and Others) v Central Criminal Court [2013] 1 WLR 1634, the court emphasized that the independent lawyer must be, and must be seen to be, independent of the law enforcement agency which conducted the searched.  An employee of that agency is not independent.

72.Following R (Rawlinson & Hunter Trustees and Others) v Central Criminal Court [2013] 1 WLR 1634, the Serious Fraud Office (“SFO”) revised its operational handbook.  The English Bar Council has also issued guidelines for independent counsel for LPP.  Mr Thompson told us that the procedure of engaging an independent LPP lawyer has been working reasonably well in England.

73.We find the procedures set out in the SFO handbook and the Bar’s guidelines very useful.  We strongly urge the Department of Justice and the legal profession to consider these materials and, based on the English experience (and indeed any relevant experience from other common law jurisdictions), explore the possibility of devising and developing our own practice of engaging an independent lawyer to deal with LPP claims.

74.We now turn to the proper procedure for handling LPP claims in respect of materials seized upon the execution of a search warrant.  To begin with, we reiterate three points.  First, the burden rests on the person claiming LPP to make good his claims.  Second, any blanket claim of LPP is objectionable and will be rejected by the court.  Third, meaningful assistance from both parties must be given to the court or any independent lawyer appointed by the parties to resolve the LPP claims.

75.Like English law, Hong Kong law recognizes the concept of limited waiver: see Citic Pacific Ltd v Secretary for Justice [2012] 2 HKLRD 701; Secretary for Justice v Florence Tsang (2014) 17 HKCFAR 739 at [25] citing Lord Millett in B v Auckland District Law Society [2003] 2 AC 736 [44]: “The cat is still a cat.  It can be put back in the bag.” To enable the Department of Justice to render the necessary assistance to the court, the person claiming LPP should seriously consider giving a limited waiver for inspection by specified personnel nominated by the Department who would only be engaged in the task of handling LPP claims on the strict understanding that those personnel would not use the knowledge acquired in such process for other purposes (whether or not such personnel should continue to be involved in the matter thereafter would be for the parties to consider and, if possible, agree, failing which the directions of the court may be sought – in the present case, it appears to have been agreed that personnel within the Department of Justice involved in the future consideration of the availability of LPP in respect of the seized material may continue to be involved with the matter thereafter).  Such limited waiver should preserve the confidentiality of the materials if the LPP claims should be upheld and, in the light of that, such waiver should only be withheld on cogent grounds in truly exceptional cases.

76.In our view, the following procedure should be adopted:

(1) The person claiming LPP (“the Claimant”) should:

(a) identify the materials over which LPP is claimed;

(b) specify, with respect to each of the materials identified, whether the LPP claimed is legal advice privilege or litigation privilege; and

(c) support the LPP claims by statement or affirmation setting out the special basis or bases and the full factual context upon which LPP is claimed in respect of each of the materials (“the Supporting Affirmation”). 

(2) The Claimant should seriously consider giving a limited waiver for specified personnel or independent counsel appointed by the law enforcement agent and/or the Department of Justice (collectively “DOJ”) to inspect the disputed materials so that the latter can consider, bearing in mind what has been set out in the Supporting Affirmation, whether any concession can be made.   The parties should be careful in drawing up the exact terms of the waiver to preserve the confidentiality and privilege in respect of the materials if the claims for LPP are upheld.

(3) The Claimant and DOJ should actively consider instructing an independent lawyer (“LPP Lawyer”) to resolve any disputed LPP claim without prejudice to their right to bring the matter to the court for determination.  Where a LPP Lawyer is instructed:

(a) If any legal issue arises and cannot be resolved in the course of resolving any disputed LPP claim, either the Claimant or DOJ may apply to the court for directions.

(b) After the court gives a determination on the legal issue, the LPP Lawyer will then continue with his task accordingly in the light of the determination.

(c) The parties may apply to the court to determineany LPP claim which remains unresolved by the LPP Lawyer.  The procedures set out in (4) below will then apply.

(4) Where the Claimant applies to the court for a full-blown determination of his LPP claims, the following procedure applies:

(a) the originating summons must be accompanied by the Supporting Affirmation or any further affirmation in support. If there has been a report by a LPP Lawyer appointed by the parties, the report should also be produced;

(b) the court will give directions for the future conduct of the proceedings, including filing of further affirmations by the parties; directing the Claimant to consider giving a limited waiver to DOJ (in the rare case in which one has not been given already); providing an agreed schedule itemising the disputed materials with clear references (where applicable) and summarising the parties’ respective positions (“the Schedule”).

(c) the court may give further directions based on the information set out in the Schedule;

(d) the court will then hear the parties in the usual manner to determine the LPP claims.

77.We will leave open for the present the questions whether, in the context of proceedings brought for determination of LPP, the court can direct the appointment of a LPP Lawyer (if the parties have not already done so before coming to court) and inspection of documents by specified personnel (either from the DOJ or independent counsel) solely for the purpose of the proceedings without prejudice to the general confidentiality of the LPP claim, as we have not heard submissions on these questions.  They are interesting questions which may have to be addressed in the future.      

E.   Dispositions

78.For the reasons given above, we hold that the Judge was in error in coming to his conclusions on LPP based on Three Rivers (No 5).  In view of the indication of the parties that they would embark on the process of reconsidering the scope of their disagreements after we reached our conclusions on the applicability or otherwise of Three Rivers (No 5) and after the Defendant has had the benefit of examining the documents strictly for the purpose of these proceedings, we shall invite the parties to address us further before we decide on the terms of the order that we should make in the light of our conclusions.

79.We therefore direct the parties to discuss the way forward and, if they can come to an agreed order, they can place the same before us for consideration within 28 days from the handing down of this judgment.  If they cannot reach agreement, the Plaintiff should lodge its submissions on the proposed order and/or directions for the further conduct of the appeal within 42 days from the handing down of this judgment and the Defendant should lodge its submissions within 14 days thereafter.  The Plaintiff may then lodge its submissions in reply (if any) 7 days thereafter.  Depending on the scope of the disagreement, this court may deal with the matter on papers or direct a short oral hearing for that purpose.  If any party wishes to have an oral hearing, it should set out the reasons why such hearing is sought in its written submissions.

80.Last but not least, we wish to express our gratitude for the immense assistance provided by counsel in this matter.

Mr Collingwood Thompson QC, Mr Paul Shieh SC, Mr Victor Dawes SC and Mr Raymond Chu, instructed by Robertsons, for the plaintiff

Ms Charlotte Draycott SC, Ms Vinci Lam (SADPP) and Mr Ira Lui (SPP), instructed by the Department of Justice, for the defendants