Lex Mundi Global Attorney-Client Privilege Guide |
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Hong Kong |
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(Asia Pacific)
Firm
Deacons
Contributors
Richard Hudson |
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| Is the ACP recognized in your jurisdiction? | Yes: client-lawyer communications made for the purpose of seeking or providing legal advice are privileged from production without the client’s permission. The right to confidential legal advice is expressly guaranteed by Article 35 of Hong Kong’s Basic Law |
| If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure... | N/A |
| Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product? | No - privilege exists in both types of proceedings |
| In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.) | The “dominant purpose” test is in use, i.e. communication or internal document produced or brought into existence with the dominant purpose that it or its contents will be used to obtain or give legal advice will be privileged, irrespective of the identity of the individual in a corporation who produced or received it. The Hong Kong Court of Appeal rejected the restrictive interpretation of “client” used in England and Wales following Three Rivers (No. 5) in CITIC Pacific v Secretary for Justice (2012) |
| Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications? | No, the test is the same. |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | N/A |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | N/A |
| Is the common interest doctrine recognized in your jurisdiction? | Yes |
| How is the doctrine articulated in your jurisdiction? | Documents or communications concerning legal advice that are disclosed to parties with a common interest in the confidentiality of that material for the dominant purpose of informing each other of the facts, issues or advice received or of obtaining legal advice in respect of contemplated or pending litigation are privileged from disclosure. |
| Must a common interest agreement be in writing? | No |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | Litigation funding is only permitted for Arbitrations held in Hong Kong (pursuant to Part 10A of the Arbitration Ordinance and the Code of Practice for Third Party Funding of Arbitration) and in certain circumstances in insolvency matters (which are governed by case law) |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | Not as yet. |
| Is the crime-fraud exception recognized in your jurisdiction? | Yes: the Hong Kong Courts follow the Cox v Railton fraud exception in English law |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | The doctrine arises from case law rather than statute. A recent case on the fraud exception is Super Worth International Limited v Commissioner of the ICAC (2015) |
| Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?) | This privilege exists, but arises from case law rather than from statute. |
| What are the elements of the protection in your jurisdiction? | Documents are protected from disclosure if they are, or are evidence of, communications by lawyers and clients with each other or with third parties where the communication has come into existence when litigation is in contemplation or has commenced, and for the dominant purpose of obtaining information or advice in connection with, or of contributing to or aiding in the conduct of, such litigation. |
| Does your jurisdiction recognize an accountant-client privilege? | No: rejected by the Hong Kong Courts in Super Worth International Limited v Commissioner of the ICAC (2015) |
| Does your jurisdiction recognize a mediation privilege? | Yes, it is a sub-category of without prejudice privilege – below |
| Does your jurisdiction recognize a settlement negotiation privilege? | Yes: without prejudice privilege protects from disclosure communications between the parties made as part of settlement negotiations. This privilege belongs to both parties and one may not waive it without the consent of the other. |
Lex Mundi Global Attorney-Client Privilege Guide
Yes: client-lawyer communications made for the purpose of seeking or providing legal advice are privileged from production without the client’s permission. The right to confidential legal advice is expressly guaranteed by Article 35 of Hong Kong’s Basic Law
N/A
No - privilege exists in both types of proceedings
The “dominant purpose” test is in use, i.e. communication or internal document produced or brought into existence with the dominant purpose that it or its contents will be used to obtain or give legal advice will be privileged, irrespective of the identity of the individual in a corporation who produced or received it. The Hong Kong Court of Appeal rejected the restrictive interpretation of “client” used in England and Wales following Three Rivers (No. 5) in CITIC Pacific v Secretary for Justice (2012)
No, the test is the same.
N/A
N/A
Yes
Documents or communications concerning legal advice that are disclosed to parties with a common interest in the confidentiality of that material for the dominant purpose of informing each other of the facts, issues or advice received or of obtaining legal advice in respect of contemplated or pending litigation are privileged from disclosure.
No
Litigation funding is only permitted for Arbitrations held in Hong Kong (pursuant to Part 10A of the Arbitration Ordinance and the Code of Practice for Third Party Funding of Arbitration) and in certain circumstances in insolvency matters (which are governed by case law)
Not as yet.
Yes: the Hong Kong Courts follow the Cox v Railton fraud exception in English law
The doctrine arises from case law rather than statute. A recent case on the fraud exception is Super Worth International Limited v Commissioner of the ICAC (2015)
This privilege exists, but arises from case law rather than from statute.
Documents are protected from disclosure if they are, or are evidence of, communications by lawyers and clients with each other or with third parties where the communication has come into existence when litigation is in contemplation or has commenced, and for the dominant purpose of obtaining information or advice in connection with, or of contributing to or aiding in the conduct of, such litigation.
No: rejected by the Hong Kong Courts in Super Worth International Limited v Commissioner of the ICAC (2015)
Yes, it is a sub-category of without prejudice privilege – below
Yes: without prejudice privilege protects from disclosure communications between the parties made as part of settlement negotiations. This privilege belongs to both parties and one may not waive it without the consent of the other.