Newsflash: Hong Kong Law Recognises Partial Waiver of Privilege, Says the Court of Appeal
10 April 2012
Senior management often asks their lawyers whether they can disclose privileged documents for a limited purpose; say, to the regulators. Conventional advice is that the legal position in Hong Kong is not entirely clear.
On 28 March 2012, the Court of Appeal ("CA") provided the long awaited clarity by overturning Wright J's decision in Citic Pacific Limited v Secretary for Justice and the Commissioner of Police (CACV60/2011) (the "Citic case"), confirming that partial waiver of privilege is part of Hong Kong law. This is an important decision, clarifying the position for many legal practitioners including in-house counsel.
Summary background of the Citic case
In late 2008, under investigation by the Securities and Futures Commission ("SFC"), Citic Pacific Limited ("Citic"), surrendered to the SFC a number of documents that contained legal advice ("the Documents"). The Documents were accordingly, prima facie privileged.
Shortly after, the police began its own criminal investigation into the matter and sought sight of the Documents for its own investigation.
The SFC had passed the Documents to the Department of Justice of the purpose of seeking legal advice. As the Secretary for Justice already had lawful possession of the Documents, the question arose whether he would be entitled to divulge the contents of the Documents to the police, given that privilege in the Documents had already been waived.
Full or Partial Waiver?
Citic contended that when it had surrendered the Documents to the SFC, it had only partially waived privilege; that privilege had been waived only to the extent necessary to enable the SFC to carry out its investigation and no other purpose. It was therefore entitled to invoke legal professional privilege against all third parties who sought access to the documents.
The defendants (the Commissioner for Police and the Secretary for Justice) asserted that, as a matter of fact, Citic had waived all privilege in the Documents and that any assertion of partial waiver had been made well after the event. In any event, the defendants contended that a partial waiver of privilege was not recognised in Hong Kong law; once privilege was waived it was waived for all purposes in respect of all persons.
At first instance, Wright J found that, on the facts, Citic had waived all privilege in the Documents and that it was therefore not necessary to determine the question of whether partial waiver was a concept known to Hong Kong law.
The CA's recent decision reversed Wright J's finding, confirming that, as a matter of Hong Kong law, partial waiver is recognised and that, as a matter of fact, Citic had only waived its privilege partially. The CA judgment added that a full waiver of privilege should not be inferred lightly.
Now that the concept of partial waiver is clearly established in Hong Kong law, when voluntarily disclosing privileged documents, it is all the more important to define carefully and communicate the terms of the disclosure at the outset.
The terms of a partial waiver should clearly describe the subject documents, the purpose for which the documents are to be used and by whom they may be used. It may also be prudent to consider whether additional conditions are necessary, for example, concerning the storage or copying of such documents.