Most Read Contributor in Hong Kong, September 2016
Legal Professional Privilege (LPP) protects documents which
contain legal advice from disclosure to the Hong Kong Competition
Commission (the "Commission") in the event of an
LPP ensures that you can speak freely to your legal advisers
about competition law concerns and ask for help without the fear of
those communications being disclosed in an incriminating
Privilege only applies to confidential communications between a
client and its legal advisers, made for the sole or dominant
purpose of giving or receiving legal advice or in relation to
contemplated or existing litigation proceedings.
It is therefore vital that you assert privilege appropriately to
avoid privileged material being inadvertently made subject to
disclosure during an investigation.
Label privileged communications "Privileged and
Confidential" in a prominent position (e.g., the document
title or subject line of emails) to help efficiently identify and
ring-fence privileged materials.
Control circulation of privileged materials. Privilege may be
inadvertently waived if sent to third parties.
Address privileged communications directly to your legal
counsel. Copying legal counsel on communications may not be
sufficient to support a claim of privilege.
Review the information provided as part of an investigation
with your legal counsel to ensure that no privileged document is
disclosed to the Commission.
What if There is a Disagreement During a Dawn Raid?
During a dawn raid the Commission may seek to seize or take
copies of privileged documents.
In the event the Commission challenges the privileged status of
certain materials, or where privilege is only claimed in relation
to part of a document and that part cannot be readily separated,
those materials will be placed in a sealed container for
determination in the following manner:
Within seven days of the dawn raid, the entity under
investigation must index the sealed materials, specify the type of
legal privilege claimed in relation to each item, and prepare a
supporting statement setting out the basis and factual context upon
which privilege is claimed.
The Commission will then consider the statement and if there
are claims that remain in dispute, an independent third party LPP
lawyer may be appointed to assist in resolving the outstanding
claims of privilege. If the Commission and the investigated party
still fail to agree on the LPP dispute, the parties can apply to
the court for determination of the matter.
If the sealed items are voluminous, the seven-day timeline may
be extended upon agreement with the Commission. The seven-day
timeline and any agreed extension must be strictly observed, as the
Commission will proceed to inspect the sealed materials if claims
of privilege are not duly substantiated upon the expiry of the
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This article provides information and comments on legal
issues and developments of interest. The foregoing is not a
comprehensive treatment of the subject matter covered and is not
intended to provide legal advice. Readers should seek specific
legal advice before taking any action with respect to the matters
discussed herein. Please also read the JSM legal publications
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