|Legal Professional Privilege Issues in the Context of Investigations|
An important issue for clients to consider when they are involved in formal investigations by the Hong Kong Securities and Futures Commission (the “SFC”) is that of the right to claim legal professional privilege (“LPP”) over their own documents.
The leading authority on the issue in Hong Kong is the Court of Appeal decision in Rockefeller & Co. Inc. v Secretary for Justice and Another  3 HKLRD 351. In Re Rockefeller, the relevant documents in respect of which LPP was claimed were passed to the SFC by Rockefeller’s solicitor on a “confidential” basis and a purported express reservation of Rockefeller’s right to assert that the production of these documents did not constitute a waiver of LPP. However, the Hong Kong Court of Appeal held that the LPP attached to those documents was waived. In particular, Keith JA was of the view that the issue of partial waiver was conceptually unsound and that, if a document was privileged, the person who enjoys the benefit of that privilege could refuse to produce it. It was, in Keith JA’s opinion, not possible to produce privileged documents while at the same time claiming the privilege attached to them was not waived.Login to Read or Click Here for Membership First