Legal professional privilege is a substantive legal right recognized in both statute and common law. It is applied in Hong Kong to protect the confidentiality of certain types of communications made between clients and their lawyers and, in some circumstances, their communications with third parties.

Privilege over such communications is to protect clients and not their lawyers. The protection afforded is not confined to what lawyers and clients say or write to each other, but naturally extends to information gathered or generated in certain circumstances and under certain conditions.

There are two types of legal professional privilege in Hong Kong.

Legal advice privilege protects confidential communications between clients and their lawyers that are made for the dominant purpose of seeking or giving any legal advice or related legal assistance. It is not necessary that litigation was pending or contemplated, and the protection is not restricted to specific requests for advice and to documents containing advice — it extends to communications aimed at advising a client during the continuum of communication between the lawyer and client.

As a result of the Hong Kong Court of Appeal decision in Citic Pacific Limited v. Secretary for Justice & Another [2015] 4 HKLRD 20, legal advice privilege in Hong Kong applies more widely to communications between employees of corporate clients and external lawyers, and its application is subject to the dominant purpose test of obtaining or seeking legal advice.

Litigation privilege protects confidential communications between clients and their lawyers, as well as between clients or their lawyers and third parties (such as a factual or expert witness), where such communications came into existence for the dominant purpose of use in connection with actual, pending or contemplated litigation.

The Hong Kong Court of Final Appeal in Akai Holdings Ltd (In Compulsory Liquidation) v. Ernst & Young (A Hong Kong Firm) (24/02/2009, FACV28/2008) confirmed that such protection turns on the issue of dominant purpose and will apply if the documents were brought into existence in order to obtain legal advice in connection with litigation that was in active contemplation and in real prospect at the time. Where there is no actual or pending litigation, the Hong Kong Court of First Instance in Citic Pacific Limited v. Secretary for Justice & Anor (19/12/2011, HCMP767/2010) considered that litigation must be a real likelihood rather than a mere possibility.