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.

Stevenson, Wong & Co. assisted Huajin International Holdings Limited (2738.hk) in its global offering on HKEx

SW acted as legal advisers to Huajin International Holdings Limited (Stock Code: 2738) (“Huajin”) to list on the Main Board of The Stock Exchange of Hong Kong Limited (“The Stock Exchange”).

The shares were listed on The Stock Exchange on 15 April 2016. 150 million shares were offered, among which 135 million were offered for international placing. The final offer price was HK$2.38 per offer share and the net proceeds amounted to approximately HK$321.6 million.

Huajin is a leading cold-rolled carbon steel processor in Guangdong Province, PRC. According to Frost & Sullivan, in 2014, Huajin was ranked number one for its volume of production amongst cold-rolled carbon steel processors in Guangdong Province, PRC, which represented approximately 5.5% of the total production volume for that market in that year.

Our associates Ms. Vivian Ji, Mr. Gordon Tsang and our public relations manager Ms. Yo Yo Fang attended the 30th Year Anniversary Dinner held by Manivest Group on 11 April 2016 at Luk Kwok Hotel. Participants came from various industries, including senior officers from Hong Kong Trade Development Council and Hong Kong solicitors, barristers and auditors. Manivest Group is a corporate services advisory group based in the Greater China region and specializes in developing sophisticated solutions for clients’ corporate structures and business operations. Manivest Group has offices in Hong Kong, Shanghai and Macao.

To find out more information about this event, please contact our Ms. Vivian Ji.

Stevenson, Wong & Co. has contributed an article on recent developments in Hong Kong law in the English newsletter published by AllBright Law Offices. The article sets out how a Hong Kong court can assist foreign liquidators to wind up foreign companies in Hong Kong.

AllBright Law Offices, our associated law firm, is a leading full-service law firm in the PRC. The same issue of the newsletter also covers new changes in regulations concerning foreign investment and the Chinese real estate market, and provides insights into recent legal and regulatory developments in the PRC.

The newsletter is available here.

On 1 April 2016, we invited representatives from Bank of China (Hong Kong) Limited and their clients to attend our forum on asset protection at our new Landmark office. Our Head of Business Development (China) Ms. Connie Yeung delivered a presentation on how to protect assets through the establishment of family trust and the benefits of such arrangements. Attendees included Ms. Ma Chi Wing, Branch Head of North Point (King’s Road) Branch.

Please contact our Mr. Eric Lui for any enquiries or further information about this event.

From 31 March 2016 to 2 April 2016, our partner Mr. Eric Lui attended a business visit organised by The Law Society of Hong Kong in Shenyang and Dalian, PRC. The group was led by Mr. Stephen Hung, president of the Law Society. Various representatives from both the government and private sector of the legal community of the PRC attended the event, including government officials from the Shenyang Municipal Bureau of Justice and senior partners from renowned law firms. The parties exchanged view on various legal issues and also explored further cooperation between the legal industry in Hong Kong and the PRC.

Please contact our Mr. Eric Lui for any enquiries or further information about this event.