In Super Worth International Ltd v Commissioner of ICAC CACV 168/2015, the Plaintiffs tried to argue that some documents seized by the ICAC were subject to legal professional privilege.
At trial, the Court of First Instance rejected this argument on the ground that those documents fell within the crime/fraud exception. It was held that those documents were aimed to facilitating the commission of a crime. However, the trial court refused to determine two outstanding issues:-
(i) whether the court should apply the lex fori (laws of the forum) or the lex causae (cause for the law) in determining legal privilege claims; and
(ii) whether legal privilege could extend to legal advice given by non-lawyers.
On appeal, the two outstanding issues were raised.
The Applicable Law
The documents concerned were from accountants in New Zealand. Therefore, it was argued that whether the law of Hong Kong, where the proceedings took place, or the law of New Zealand, where the documents originated, should be applied.
While the Court of Appeal acknowledged that the legal professional privilege is a substantive right, “it is a right originating in the public interest and its limits are informed by the domestic considerations pertaining to such public interest”. The Court further observed that “the rationale for [legal professional privilege] is not the expectation of the client. It is a facet of the rule of law and in Hong Kong the relevant legal policy for determining the limits of [legal professional privilege] when documents are seized or discovery is sought for proceedings in Hong Kong is Hong Kong law”.
Legal Privilege covering non-lawyers’ advice?
The Plaintiffs also contended that advice on tax laws given by accountants should be covered by legal professional privilege.
The Court of Appeal upheld the decision of the Supreme Court in the United Kingdom in R (Prudential plc) v Special Commissioner of Income Tax [2013] UKSC 1 rejected this argument because:-
(i) The current ambit of legal professional privilege is “a clear, readily understood and easily applied guideline”. Extending the law of legal professional privilege to cover legal advice given by non-lawyers will “remove that clarity, and leave the law in a state of real uncertainty”;
(ii) The question of whether to expand the scope of legal professional privilege should be left to the legislature instead of the judiciary.
Crime/Fraud Exception
The Court of Appeal dismissed the Court of First Instance’s finding, holding that the contents of the documents in question did not have anything to do with any criminal offence. The Court of Appeal particularly emphasized that the crime/fraud exception should not be applied too widely.
Conclusion
The legal professional privilege only applies to confidential communication between a qualified lawyer and a client. Such privilege does not extend to communication between a non-lawyer (in this case, an accountant) and a client despite the fact that the communication involves legal advice.