The scope of legal advice privilege in Hong Kong

Abstract

This article considers the recent Hong Kong Court of Appeal decision of Citic Pacific Limited v Secretary for Justice and Commissioner of Police, concerning the scope of legal advice privilege. In departing from the UK position, it was held that all documents gathered or brought into existence for the dominant purpose of obtaining legal advice are protected by legal advice privilege. This is to be welcomed for three reasons. Firstly, the dominant purpose test sits in line with the normative rationale of legal advice privilege. Secondly, the UK position is flawed as a matter of authority. Thirdly, although the ‘dominant purpose’ test appears difficult to apply, it is preferable to the competing alternatives of the sole purpose test and the substantial purpose test. In terms of the practical application of the privilege, it is submitted that the Court of Appeal should have set out a list of guidelines to supplement the dominant purpose test.