Answer ... Legal professional privilege is applicable in Hong Kong. Generally speaking, it applies to confidential communications between lawyers and clients made for the dominant purpose of obtaining legal advice. Privilege extends to communications with in-house counsel where they are providing independent legal services.
Privilege also applies to communications between a lawyer and a third party that come into existence after litigation is contemplated or commenced and made with a view to the litigation. This is commonly known as ‘litigation privilege’.
A search warrant issued by the courts empowers the Competition Commission to seize and copy relevant documents, computers and other electronic devices found on the premises.
A party under investigation may assert a claim for legal professional privilege during the execution of a search warrant and the commission is not allowed to review materials for which this protection is claimed unless and until the issue is resolved.
If the commission agrees that a document is privileged and the privileged document can be separated from non-privileged materials, the commission will not copy or seize the document. If the commission disputes the privilege claim or if the document is only partly privileged, the commission will seal the document in a suitable container and remove it from the premises.
The investigated party must then, within seven days, prepare an index of the materials and provide a supporting statement setting out the basis for its privilege claim in relation to each item.
The commission will return an item if it is satisfied that the item is privileged, based on the supporting statement. If only part of a document is privileged, arrangements will be made for privileged information to be redacted.
If a dispute on the privilege claim remains, the commission will confer with the party claiming privilege on a mutually agreeable approach – for instance, instructing an independent third-party lawyer to review the privilege claim. If the dispute cannot be resolved, either party may apply to the court for the matter to be determined.
For more information about this answer please contact: Christina Ma from Haldanes Solicitors & Notaries