In Hong Kong, legal professional privilege is a constitutional right and can be applied to protect the confidentiality of relevant communications in civil, criminal, regulatory and investigatory situations.

If protection is sought for documents which came into existence in connection with civil, criminal or regulatory proceedings, or investigations, the application of legal advice privilege or litigation privilege will depend upon the nature of the document and the relevant circumstances.

In Hong Kong, litigation privilege protects communications which came into existence for the dominant purpose of use in connection with actual, pending or contemplated litigation. In Akai Holdings Ltd (In Compulsory Liquidation) v. Ernst & Young (A Hong Kong Firm) (24/02/2009, FACV28/2008), transcripts and notes from the liquidators’ private examinations and interviews were held to be protected by litigation privilege as they were found to be made in connection with litigation that was in active contemplation and in real prospect. In Citic Pacific Limited v. Secretary for Justice & Anor (19/12/2011, HCMP767/2010), the Court of First Instance considered that where there was no actual or pending litigation, litigation must be a real likelihood rather than a mere possibility. The court mentioned that the approach would cover both civil and criminal litigation as well as litigation involving appropriate regulators.

As a result of the Hong Kong Court of Appeal decision in Citic Pacific Limited v. Secretary for Justice & Another [2015] 4 HKLRD 20, communications between employees of corporate clients and external lawyers are given greater protection and are subject to the dominant purpose test of obtaining legal advice. This extends to the whole process of gathering information for the purpose of obtaining legal advice, which may include notes of interviews produced during investigations. Recently, in Wong Wai Keung v Commissioner of Police [2022] HKCFI 374, it was reiterated that privilege will not automatically attach to documents collated by the client from its own files, even if the intention is for those documents to be provided to lawyers for the purpose of obtaining legal advice. While the communication to the lawyer may be privileged, the underlying documents still exist separately within the client’s files, and therefore the normal rules of discovery will apply.