Press Summary (English)

Press Summary (Chinese)

FACV No. 8 of 2023

[2024] HKCFA 6

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 8 OF 2023 (CIVIL)

(ON APPEAL FROM CACV NO. 355 OF 2021)

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J U D G M E N T

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Mr Justice Ribeiro PJ:

1. I agree with the judgment of Lord Phillips of Worth Matravers NPJ.

Mr Justice Fok PJ:

2. I agree with the judgment of Lord Phillips of Worth Matravers NPJ.

Mr Justice Lam PJ:

3. I agree with the judgment of Lord Phillips of Worth Matravers NPJ.

Mr Justice Tang NPJ:

4. I agree with the judgment of Lord Phillips of Worth Matravers NPJ.

Lord Phillips of Worth Matravers NPJ:

INTRODUCTION

5. This appeal is concerned with the manner in which legal professional privilege (“LPP”) applies in relation to the relationship that comes into existence after a grant of legal aid has been made. That relationship is tripartite (“the tripartite relationship”) between (i) the legally aided person (“the aided person”), (ii) the lawyers assigned to conduct the litigation (“the assigned lawyers”) and (iii) the Director of Legal Aid (“the Director”).

6. The background to the case is an application by the Appellant (“MK”) for judicial review (HCAL 1077/2018) in respect of which leave was given by Chow J on 13 June 2018. A legal aid certificate was granted to her in respect of those proceedings on 25 July 2018. The decision challenged in the present judicial review proceedings is that made on 23 May 2019 by the Registrar of the High Court through his Deputy (“the Master”), dismissing an appeal against a decision made by the Director on 9 May 2019, to revoke that legal aid certificate. The ground of the challenge is that the Registrar and the Director founded their decisions on information (“the Information”) that was subject to LPP. The Master has chosen to adopt a neutral stance in these proceedings, leaving it to the Director to respond.

7. Both the Director and the Master were sitting in an administrative capacity, but before the Court of First Instance (“the CFI”) it was treated as axiomatic that, if the Information was subject to LPP, the Director and the Master were bound to disregard it. Before the Court of Appeal the Director sought to challenge this assumption, but the Court found it unnecessary to deal with the point. [1] It seems to me far from axiomatic that a public official is bound to disregard information relevant to the performance of his duties if it is communicated to him in breach of confidence, even where the information is subject to LPP. I shall proceed, however, to consider the issues arising