19 Oct 2014

Stephenson Harwood advises on Hong Kong court of final appeal ruling

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International law firm Stephenson Harwood LLP has successfully advised Samuel Tak Lee (STL) on a Court of Final Appeal ruling regarding legal professional privilege.

The dispute arose from an application by the Secretary for Justice to access documents disclosed in matrimonial proceedings between STL’s son and former daughter-in-law. In the course of the matrimonial proceedings various documents which attracted a claim to legal professional privilege were disclosed to the wife and the court. The Secretary for Justice claimed the documents were no longer privileged and he could therefore have access to them. The Court of First Instance agreed with the Secretary for Justice and granted him access. STL appealed to the Court of Appeal, which found that whilst the documents were privileged as between STL and the Secretary for Justice, the wife could regardless provide side door access of them to the Secretary for Justice.

STL appealed to the Court of Final Appeal, which, on Monday 13 October 2014 upheld his appeal. The reasons for the decision are to follow, but the Court of Final Appeal made it clear that privileged material received from a 3rd party without the consent of the holder of the privilege cannot be used for any other purpose (whether derivative or direct). The Secretary for Justice was therefore denied side door access from the wife to the privilege material.

This decision secures the right enshrined in both the common law and the Basic Law of Hong Kong that communications between a solicitor and client are confidential and protected by legal professional privilege, such right being absolute. Samuel Tak Lee issued a statement in which he said that he had utmost faith in the rule of law in Hong Kong as it protected all of its citizens “Whether it be protesting students. Whether it be the government. Whether it be an old man like me caught up in a sad family squabble.”

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