ROCKEFELLER & CO. INC. v. THE SECRETARY FOR JUSTICE AND ANOTHER

CACV 174/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 174 OF 2000

(ON APPEAL FROM HCMP 2344/2000)

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J U D G M E N T

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Hon Godfrey VP :

Introduction

1. This is a plaintiff's appeal from Bokhary J, who on 19 May 2000 refused an application made to her on behalf of the plaintiff (Rockefeller & Co. Inc.) for injunctive relief in connection with documents asserted by the plaintiff to be "privileged". These were documents which had been supplied by the plaintiff to the Securities and Futures Commission ("the SFC") on a "confidential" basis; passed by the SFC to the Independent Commission Against Corruption ("the ICAC"); passed by the ICAC to the Secretary for Justice ("the SJ"); and, finally, passed by the SJ to the solicitors acting for a former employee of a wholly-owned subsidiary of the plaintiff, one Lee Kwok Wing, Kevin ("Lee"), who is now the defendant in criminal proceedings before Bokhary J. The plaintiff agreed to supply these documents to the SFC as a regulatory authority properly concerned to see the documents. The plaintiff makes no complaint against the SFC, nor against the ICAC, whose proper concern to see the documents it equally recognises. However, the plaintiff's willingness to waive any claim it may have for confidentiality of these documents stops there. It does assert such a claim against the SJ, and against Lee, to whose solicitors the SJ made the documents available because she considered that the documents constituted "unused material" which she was obliged to supply to them for the purposes of Lee's defence. The SJ herself originally said that she did not in fact wish to retain or use the documents for the purposes of the prosecution of the criminal proceedings against Lee (though she now claims to be entitled to do so if she wishes). Lee does wish his legal advisers to retain and use these documents, for the purpose of cross-examining witnesses to be called by the prosecution in a voir dire which Bokhary J is currently conducting in the criminal proceedings but which has been adjourned to await the outcome of this appeal.

The proceedings below

2. The plaintiff's claim in relation to these documents was ventilated before Bokhary J in proceedings which, as it seems to me, were wholly irregular. It appears to have been thought that, since this claim was being made in the course of criminal proceedings, the proper way to assert it was simply to make an application for the purpose to the judge hearing those criminal proceedings. If the plaintiff (or some proper officer of the plaintiff) had been served with a subpoena duces tecum to produce the documents to the court seized of the criminal proceedings, and the plaintiff had wished to object to producing the documents on the ground of "privilege", it could no doubt have applied to the trial judge to have the subpoena set aside. But that is not at all what happened. What happened was that the documents had already come to the hands of the parties whose use of them the plaintiff wanted to restrain. That is an entirely different scenario. In those circumstances, the proper course for the plaintiff to have taken would have been to institute civil proceedings against the parties whose use of the documents it sought to restrain, invoking the equitable jurisdiction of the court to grant injunctive relief to protect the victim of a threatened breach of confidence. Those proceedings would have had to have been instituted in the appropriate manner, by writ or originating summons (the latter would not be appropriate if it was expected that disputes of fact might arise). The necessary interlocutory application for relief would then have to have been launched, by notice of motion or ordinary summons inter partes, in the civil proceedings so instituted. Of course, since the problem arose in the course of a voir dire in criminal proceedings before Bokhary J, I perfectly well understand the plaintiff's misconception that the proper tribunal to consider and deal with the matter would be the judge herself. But misconception it was. What the plaintiff should have done (and done before a different judge) I have already indicated. To any objection that to do all that would have taken too much time, the reply must be made that that is another misconception. When the grant of injunctive relief is needed as a matter of urgency, it can be obtained without the issue of any process at all, but only (and this needs to be stressed) on the plaintiff's undertaking to issue the necessary originating process as soon as that can be done. Here, no such undertaking was offered to Bokhary J. Since these matters were not drawn to her attention, it is not surprising that she agreed to entertain the plaintiff's application. But, for the reasons I have endeavoured to explain, in the absence of any such undertaking, she should not have done so.

The proceedings in this court

3. When these procedural difficulties were pointed out to Mr Clive Grossman SC, who had appeared for the plaintiff on the application made to Bokhary J and who appeared for the plaintiff in this court, he at once accepted a suggestion from the court that, in order to regularise the position, the plaintiff should now, if belatedly, undertake to issue the appropriate originating process. During the course of the hearing before us this was done, the court ordering the originating summons prepared on behalf of the plaintiff to be filed and to operate "nunc pro tunc", as the expression is; that is to say, "now for then", so that, by virtue of our order, the proceedings before Bokhary J will be treated as having taken place in the originating summons subsequently filed. On that basis, we were willing to treat the plaintiff as having moved the Court of First Instance in the civil proceedings commenced by the issue of that originating summons for the relief the plaintiff had sought and we dealt with the matter before us as a properly constituted appeal from that court. I must however add that in the originating summons, the plaintiff is therein misdescribed as "the applicant"; an originating summons inter partes should describe the party issuing it as "plaintiff" and the parties to whom it is directed as "defendants". The originating summons must be amended accordingly.

4. With these matters of procedure resolved, I can now turn to the substantive matters with which the appeal is concerned.

The documents

5. This court has not looked at the documents (there are, we were told, some 700 pages or more of them) but the nub of the matter is that they constitute or are said to constitute a record of a number of interviews of Lee, being interviews conducted by representatives of the plaintiff together with its legal advisers, whose comments are recorded in the documents and are said by the plaintiff to constitute legal advice, so that the documents are documents in respect of which the plaintiff would be entitled in litigation (civil or criminal) to claim "privilege" from production. Further, it is said, the documents are by their nature "confidential" in a wider sense, quite apart from any question of such "privilege"; and, further still, they are documents which, it is said, the plaintiff supplied to the SFC on the basis that they would be treated as confidential. The plaintiff accepts that, in the events which have happened, there are limitations on the plaintiff's claim to protection in respect of the confidential nature of the documents, but only in relation to the use already made of them by the SFC and the ICAC; and it is to the threatened use of them by the SJ and the solicitors for Lee in the latter's criminal trial that the plaintiff objects. (A suggestion made from the bench during the hearing of the appeal that the interests of the plaintiff might be sufficiently protected by inviting the judge to hear in camera that part of the evidence in the course of which the documents would be used was rejected by the plaintiff as insufficient.)

The law

6. Two matters of law need to be considered; first, the legislative background, and secondly the common law (or, rather, equitable) background, against which the facts of the case need to be viewed.

7. It will be convenient, after setting out the legislative background, to set out the facts, before proceeding to consider the general principles relating to claims for the protection of confidence including claims to legal professional privilege. First, then, the legislative background.

The legislative background

8. The legislative background against which the plaintiff's claim must be considered is to be found in a number of provisions of the Securities and Futures Commission Ordinance, Cap. 24 ("the Ordinance") which established the SFC as a regulatory authority. The SFC's investigators have power in various circumstances to give directions for the production of a company's records or documents (see section 33). They cannot require the disclosure of information or the production of documents which a person would be entitled to refuse to disclose or produce on grounds of legal professional privilege in proceedings in the Court of First Instance (see section 56). But the SFC can, in certain circumstances, disclose information it has received "with a view to the institution of, or otherwise for the purposes of, any criminal proceedings" in Hong Kong to the SJ and the ICAC (see section 59(2)(b), (j) and (k)).

The facts

9. These may, for present purposes, be summarised as follows.

10. In July 1996, the SFC approached the plaintiff about concerns it had over the conduct of the plaintiff's subsidiary to which I have already referred, a company called Rockefeller & Co. (Far East) Limited, and of Lee, at the time that company's managing director. A senior manager of the plaintiff, one Moore, interviewed Lee about these concerns on a number of occasions, in September and October 1996 in the presence of others including the plaintiff's forensic accountants and legal advisers. One of the latter made handwritten notes of those interviews, some of which were later typed up and marked on each page "Confidential/Attorney-client Privileged Document", as were notes produced by the forensic accountants. It is asserted on behalf of the plaintiff that these documents (being the documents with which we are now concerned) were specifically created in contemplation of possible litigation arising from Lee's conduct and in the context of providing legal advice to the plaintiff.

11. On 22 November 1996, an SFC investigator gave notice to the subsidiary company (since dissolved) to produce all these documents. The plaintiff did so, on the terms of a letter from its solicitors dated 10 December 1996, which were intended (as the letter states) "to protect the confidentiality of the documents, and to maintain the attorney-client and work-product privileges which apply to them". The terms of this letter being of fundamental importance to a proper consideration of the claim which the plaintiff now makes, I now set out the contents of the letter in full :-

"Re : Section 33(4) Notice dated 22nd November 1996 ('Notice')

As an investigator appointed under s33(1) of the Securities and Futures Commission Ordinance (Cap 24) you have served the above Notice requiring production of various documents. Rockefeller & Co., Inc. and Rockefeller & Co. (Far East) Limited (collectively called 'R&Co.') have agreed to provide appropriate documents in compliance with the Notice. It is agreed that the investigation and production of these documents is in the joint interests of the Securities and Futures Commission ('SFC') and R&Co. in obtaining a full understanding of the facts for their mutual benefit.

Documents were provided to the SFC on 6th December 1996 and there is to be ongoing disclosure. In order to protect the confidentiality of the documents, and to maintain the attorney-client and work-product privileges which apply to them, R&Co. hereby expressly reserves its right to assert with respect to all such documents:

(1) that the delivery of the information contained in the documents and any underlying materials to the SFC does not in any way constitute a waiver either in whole or in part of attorney-client privilege or work-product protection;

(2) that their delivery to the SFC does not and will not in any way constitute a waiver of any confidentiality claim R&Co. may have in any subsequent or unrelated criminal or civil proceedings with respect to the information contained in the documents and their underlying materials.

This letter in no way inhibits or restricts the SFC's use of the documents and underlying materials in the discharge of its regulatory responsibilities. In this regard such documents and underlying materials may be used in the SFC's interviews as part of its investigation and enquiries and be disclosed to those persons specified in section 59 of the Securities and Futures Commission Ordinance (Cap 24).

The SFC undertakes that in accordance with the provisions of section 59 of the Securities and Futures Commission Ordinance (Cap 24) the documents and any underlying materials will be kept confidential.

By its execution below, the SFC acknowledges that R&Co. is producing the documents in compliance with the Notice and in reliance upon the terms of this letter."

12. The investigator duly endorsed this letter "Accepted and Agreed", and the plaintiff duly supplied him with the documents.

13. On 17 December 1996, the SFC's investigator supplied copies of the documents to the ICAC on the terms of a letter of that date, the contents of which I also set out in full :-

"I refer to the recent telephone conversation between your Mr. Brian Carroll and Paul Bailey and myself of the Securities and Futures Commission in which the possibility of your Commission initiating a criminal investigation into possible breaches of the Prevention of Bribery Ordinance by a Mr. Kevin Lee Kwok Wing ('Kevin Lee') was discussed.

In order to assist you in this regard and pursuant to section 59(2)(b) of the Securities and Futures Commission Ordinance ('the Ordinance'), I am enclosing copies of notes of interviews of Mr. Lee and his former staff conducted by lawyers on behalf of his former employer, Rockefeller & Co. (Far East) Limited. These interview notes were obtained pursuant to a Notice issued under section 33(4) of the Ordinance to Rockefeller & Co. (Far East) Limited.

Your attention is drawn to section 59(3) of the Ordinance. The information contained in the copies provided to you may be used by any member of the staff of your Commission, or any Committee of your Commission, involved in assessing whether or not an investigation should be commenced into the activities of Kevin Lee and during any subsequent investigation. It may also be disclosed to any Counsel of the Attorney General's Chambers advising on the matter, and for the purpose of any criminal proceedings that may result from an investigation. The information may not, however, be disclosed to any other party without the consent of the Commission."

14. On 4 May 2000, the SJ made it known to the plaintiff that she had supplied the documents to Lee's solicitors. The plaintiff objected; but it was of course too late. In these circumstances, the plaintiff applied to Bokhary J for relief as I have already related.

The law as to "confidentiality"

15. The court in the exercise of its equitable jurisdiction will be prepared, in a proper case, to grant an injunction restraining the use of materials containing information obtained in breach of confidence : see Prince Albert v. Strange (1849) 1 Mac. and G 25. The principle applies equally to one who subsequently comes into possession of such materials "quite innocently and properly" : see Rex Co. v. Muirhead (1926) 136 LT 568, per Clauson J at p.573; and also Printers and Finishers Ltd v. Holloway [1965] 1 WLR 1, at p.7. The plaintiff must show that the information contained in the materials is of a confidential nature and was communicated in circumstances imposing an obligation of confidence : see Coco v. AN Clark (Engineers) Ltd [1969] RPC 41. He will also, at any rate in trade confidence cases, normally (but perhaps not necessarily) be required to show that there has been, or been threatened, an unauthorised use of the information to the detriment of the claimant : see the Coco case, at p.47.

16. However, although one party may be able to obtain an injunction restraining another from making use of the first party's confidential information, he will not necessarily be able to claim that the materials containing that information are privileged from production in evidence in a civil or criminal trial : see Riddick v. Thames Board Mills [1977] 1 QB 881. That privilege can be asserted only if the materials are (1) documents protected by legal professional privilege; or (2) documents which would incriminate or expose to a penalty the party who would produce them; or (3) documents protected from production on some ground of public policy. So far as legal professional privilege is concerned, this attaches, inter alia, to documents containing information passed by the lawyer to the client (or vice versa) as part of a process aimed at keeping both informed, so that advice may be sought or given : see the statement to that effect in the Supreme Court Practice (1999) Vol. 1, at 24/5/9, which is, in my judgment, correct. The principle is "that a man must be able to consult his lawyer in confidence" : see R. v. Derby Magistrates' Court, Ex parte B [1996] AC 487, per Lord Taylor of Gosforth CJ at p.507.

The instant case

17. I now turn to apply these principles to the facts of the instant case.

18. First, I am satisfied that the information contained in the documents the use of which the plaintiff now seeks to restrain was information of a confidential nature and was passed by the plaintiff to the SFC in circumstances imposing an obligation of confidence on the SFC. I understand that the SJ, at any rate, does not contend otherwise.

19. Secondly, I am satisfied that the nature of the documents is such that the documents would be documents to which legal professional privilege would attach; but since they are already in the hands of the SJ and Lee's solicitors, and the plaintiff is not in the instant case being asked to produce them for use in evidence, this fact is irrelevant.

20. Thirdly, because the documents are confidential in nature and were passed to the SFC in circumstances imposing an obligation of confidence on the SFC, the plaintiff is entitled to the grant of the injunctions against the SJ and Lee for which it has asked, unless there are compelling reasons why, in the exercise of its discretion, the court should refuse to grant the plaintiff such injunctions.

Discretion

21. So the question becomes : Are there compelling reasons here why the court should, in the exercise of its discretion, refuse to grant the plaintiff the relief it has claimed?

22. Two such reasons have been assigned.

23. The first is that the plaintiff has waived its claim to protection by passing the documents to the SFC, the terms of the letter of 10 December 1996 notwithstanding.

24. The second is that the public policy in favour of all "unused material" in the possession of the prosecution in a criminal trial being made available for use by the defence outweighs the public policy in favour of preserving the plaintiff's confidentiality in relation to documents to which legal professional privilege would attach so as to entitle the plaintiff to refuse to produce the documents in evidence if called on to do so.

Conclusion

25. I would, for my part, reject the first reason for refusing the plaintiff relief. I would construe the letter of 10 December 1996 as waiving the plaintiff's claim to confidentiality only to the limited extent expressly stated. I think it perfectly clear that the plaintiff never contemplated that the documents would come to the hands of Lee and his legal advisers and that it would never have waived its legal professional privilege at all if it had foreseen such a consequence. That being so, it would, in my opinion, be wrong to hold that by the letter of 10 December 1996 the plaintiff waived its right to confidentiality in respect of the documents.

26. But the second reason occasions greater difficulty. The purpose of section 59(2)(b) of the Ordinance is to allow the use of such documents in criminal proceedings except where legal professional privilege against their production is properly claimed. As I have noted above, it is too late for such a claim to be made. The SJ and Lee's solicitors have the documents already; and, as Lady Macbeth once observed :

"Things without all remedy should be without regard : What's done is done."

27. Further, it does seem to me that if there are here (as I think there are) competing public policies, the plaintiff's right to confidentiality on the one hand and Lee's right to use this material in his defence in criminal proceedings on the other hand, the latter does outweigh the former : cp the observations of Lord Hope in Taylor v. Serious Fraud Office [1999] 2 AC 177, at pp. 217, 218.

Result

28. Accordingly, and not without reluctance, I would refuse the plaintiff the relief it has claimed, although for reasons different from those given by the judge. It follows that I would dismiss this appeal.

29. I will add only this; that my reluctance in doing so is tempered by the consideration that it will remain open to the plaintiff to ask Bokhary J, to hear in camera those parts of the evidence which will necessitate reference to the plaintiff's confidential information. Of course, whether she decides to do so or not will be entirely a matter for her; but this course would, as it seems to me, go a very long way towards ensuring that no injustice is done to the plaintiff as a result of its initial confidential disclosure of the documents to the SFC.

Hon Rogers JA :

30. The applicant, Rockefeller & Co. Inc., had made application before Mrs Justice Bokhary that the 2nd respondent, Mr Lee Kwok Wing Kevin, should be restrained from using privileged documents which were identified in a section 33(4) notice from the Securities and Futures Commission ("SFC") dated 22 November 1996 and that all such documents which were in the possession of the Secretary for Justice, or Mr Lee should be returned to the applicant. That application was refused on 19 May 2000.

History

31. Mr Lee had been the managing director of Rockefeller & Co. (Far East) Limited. Rockefeller & Co. (Far East) Limited had been a subsidiary company of the applicant. Sometime in 1996, it came to the attention of the Securities and Futures Commission that there had been serious problems with the way in which securities had been dealt with by Rockefeller & Co. (Far East) Limited. Mr Lee is now in the middle of a trial in which he is charged with a number of offences which can be summarised as constituting accepting bribes to induce him to enter on Rockefeller & Co. (Far East) Limited's behalf various share transactions.

32. When these matters first came to the attention of the applicant they were, not surprisingly, concerned. They sent a senior manager, Mr Colin Moore, to Hong Kong to investigate the matter. He had a meeting with Mr Lee in August 1996. After that, in September and October of 1996, he had a series of meetings with Mr Lee which were attended by a solicitor of Johnson, Stokes & Master and a partner of a well-known United States firm of lawyers, Cleary, Gottlieb, Steen & Hamilton. Forensic accountants from a major firm of accountants were also present. A Mr Mok who is now an assistant solicitor with Johnson, Stokes & Master, but who was not apparently involved in 1996 with the events which took place then and indeed may not have been with Johnson, Stokes & Master at the time, says in an affidavit, that the series of interviews which took place were held specifically with litigation in mind for the provision of legal advice to the applicant.

33. On 26 November 1996, an investigator appointed under section 33 of the Securities and Futures Commission Ordinance served a notice on Rockefeller & Co. (Far East) Limited under section 33(4). That notice specifies that the Commission had reason to believe that Mr Lee may have committed a defalcation or other breach of trust, fraud or misfeasance in the dealing of securities and may have been engaged in dealing in securities in a manner which was not in the interest of the investing public or the public interest. That notice required Rockefeller & Co. (Far East) Limited to provide the Commission with records which included the following :-

"(a) all statements and records of interview conducted with Kevin Lee and all other staff of Rockefeller & Co. (Far East) Limited;

.....

(e) any reports submitted by Cleary, Gottlieb, Steen and Hamilton, and/or Johnson Stokes & Master to either Rockefeller & Co. (Far East) Limited and/or Rockefeller & Co. Inc."

34. This material was passed to the SFC by Johnson, Stokes & Master on terms contained in a letter dated 10 December 1996. That letter is headed "Confidential, Attorney-client privileged document, Attorney work product". The documents were passed to the SFC on 6 December which stated that there would be further disclosures. The letter contains the following :-

"(1) that the delivery of the information contained in the documents and any underlying materials to the SFC does not in any way constitute a waiver either in whole or in part of attorney-client privilege or work-product protection;

(2) that their delivery to the SFC does not and will not in any way constitute a waiver of any confidentiality claim R&Co. may have in any subsequent or unrelated criminal or civil proceedings with respect to the information contained in the documents and their underlying materials."

The letter goes on in the next paragraph to state :-

"This letter in no way inhibits or restricts the SFC's use of the documents and underlying materials in the discharge of its regulatory responsibilities. In this regard such documents and underlying materials may be used in the SFC's interviews as part of its investigation and enquiries and be disclosed to those persons specified in section 59 of the Securities and Futures Commission Ordinance (Cap 24).

The SFC undertakes that in accordance with the provisions of section 59 of the Securities and Futures Commission Ordinance (Cap 24) the documents and any underlying materials will be kept confidential."

The document was signed as being accepted and agreed by the SFC.

35. On 17 December 1996, the SFC passed this material under cover of a letter to the Director of Operations of the ICAC. Specific mention was made that the material was being passed pursuant to section 59(2)(b) of the Ordinance and attention was drawn to section 59(3). It was stated :-

"The information contained in the copies provided to you may be used by any member of the staff of your Commission, or any Committee of your Commission, involved in assessing whether or not an investigation should be commenced into the activities of Kevin Lee and during any subsequent investigation. It may also be disclosed to any Counsel of the Attorney General's Chambers advising on the matter, and for the purpose of any criminal proceedings that may result from an investigation. The information may not, however, be disclosed to any other party without the consent of the Commission."

Section 59 of the Securities and Futures Commission Ordinance

36. It would be convenient at this juncture to refer to the provisions of section 59 of the Ordinance which is headed "Preservation of secrecy, etc." Section 59(1) imposes an obligation of secrecy on any person who performs or assists in performing a function under the Ordinance. That obligation of secrecy is only relieved in cases where the person is performing a function or carrying out the provisions of the Ordinance or any related Ordinances. Section 59(2) provides that notwithstanding the obligation confidence in sub-section (1), the Commission may disclose information for a variety of reasons. It is pertinent to draw attention to two of those :-

"(b) with a view to the institution of, or otherwise for the purposes of, any criminal proceedings or any investigation, whether under the relevant Ordinances or otherwise, in Hong Kong;

.....

(k) obtained by an investigator under section 33 to any person mentioned in paragraph (j)(i) to (v);"

37. Those persons include the Secretary for Justice and the ICAC. Under section 59(3), it is provided that :-

"(3) Where information is disclosed in any of the circumstances described in subsection (2), other than subsection (2)(a), (m) and (n), neither-

(a) the person to whom that information is disclosed; nor

(b) any person obtaining or receiving the information, whether directly or indirectly, from the person referred to in paragraph (a),

shall disclose the information, or any part thereof, to any other person without the consent of the Commission."

The handing over of the materials

38. The material in question was only shown to prosecuting counsel at a late stage in the prosecution. Mr Ryan, has informed us that he took the view, at that stage, that it was not material that the prosecution would seek to use but he regarded it as relevant material which ought to be disclosed to the defendant in the criminal proceedings, namely Mr Lee. He therefore so disclosed it. Mr Lok, SC, who is counsel for Mr Lee, immediately took the view that it was relevant material which he desired to use in cross-examination on the voir dire in Mr Lee's prosecution. It was in those circumstances that the matter came to the attention of the applicant who now seeks not only an injunction but delivery up of the documents. For completeness, it should be mentioned that Mr Ryan informed this court that since the hearing in the court below, it has now become clear to him that the prosecution would wish to use some of these materials itself as part of the prosecution case.

The proceedings in the court below

39. I have had the advantage of reading the judgment of Godfrey VP in draft. I do not wish to make any further comment on the procedure by which these proceedings were launched.

Were the documents privileged?

40. Mr Mok's evidence would seem to be at best, hearsay and at worst, inadmissible. Nevertheless, it seems to me to be open to this court to infer from the circumstances of the creation of the documents and the bare description of those documents which this court has not read, that they were documents which came into existence as a result of investigations by lawyers on behalf of the applicant who were employed to investigate the circumstances surrounding the inquiries from the SFC with a view, no doubt, to protecting, if necessary, the applicant and its Hong Kong subsidiary from any adverse action either by the SFC as a regulatory authority or any possible civil proceedings which may result against the applicant or its Hong Kong subsidiary.

41. The judge below took the view that the documents were documents which came into existence as a result of investigations by the Hong Kong subsidiary and not by the applicant. In this respect, I have considered that the judge below may well be correct in that. But the argument before this court turned more upon whether whoever did cause these documents to come into existence, whether it be the applicant or its Hong Kong subsidiary, was not seeking legal advice at that time. That, in my view, is an argument which takes too narrow a view of what can constitute documents protected by legal professional privilege. In my view, the inquiries by the SFC alone would have been sufficient to cause any inquiries made by lawyers acting on behalf of a client to constitute documents which came into existence for the broader purpose dealing with the SFC inquiries. It can be assumed that the SFC would not be acting officiously and hence, any inquiries made by them could be supposed to be likely to lead to action and consequences where legal advice would be necessary.

42. Whereas the section 33(4) notice does relate in the main to documents generated at the instigation of the Hong Kong subsidiary, reference is also made to the applicant. In view of the presence of the US attorneys, I would prefer to leave open the questions as to whether the documents in question were the Hong Kong subsidiary's documents or the applicant's documents.

The conditions imposed - the waiver

43. I too approach this case on the basis that the documents in question were confidential. What is of importance in this case appears to me to be the conditions which were imposed on the applicant's behalf and agreed to by the SFC in the letter of 10 December 1996. Paragraph numbered (2) refers to the delivery not constituting a waiver of any confidentiality in any subsequent criminal proceedings. Nevertheless, it seems to me that it was specifically agreed that the documents and any underlying materials could be disclosed to, amongst others, the ICAC, the Secretary for Justice (formerly the Attorney General) and any prosecutor. These are all persons who are specified in section 59 to whom the letter states the documents may be revealed. The provision in the letter that the documents and any underlying materials were to be kept confidential in no way restricts the use of those documents as part of a prosecution since reference is there made to the undertaking being in accordance with section 59 and section 59(2)(b) specifically permits the use of the documents for the institution or otherwise for the purposes of criminal proceedings.

44. Once therefore it is established that the documents may be used for the institution or otherwise for the purposes of criminal proceedings, and, incidentally, passed to the prosecuting authority, the matter becomes, in my view, clear. As the judge below said :-

"The purposes of criminal proceedings include fairness to the accused, and such fairness includes supplying unused material to the accused. All of that is clear law."

45. I would go further, a prosecutor is a representative of the state. He acts, as has been said, as a minister of justice. His function is to lay, before the court, the whole of the facts which comprise the case against the accused and to make them perfectly intelligible. It is not his duty to obtain a conviction by all means. It is for this reason that it is part of the prosecutor's duty to pass unused relevant material which has been given to him for the purposes of prosecution. It is equally part of the prosecutor's function to pass relevant unused material to the defence as it is to use relevant material himself.

46. The question of the obligation to pass unused material to the defence was considered and explained by Lord Hope in R. v. Brown (Winston) [1998] A. C. 367 at pages 374-377. In the case of Taylor v. Director of the Serious Fraud Office [1999] 2 A.C. 177 @ 218 he said that if there was any question of having to redress the balance of fairness in the public interest it could not be done by reducing the scope of the disclosure rules since it would prejudice the right of a defendant to a fair trial which was paramount. What could be done was to restrict use for purposes other than to ensure the defendant had a fair trial.

47. In this case, Mr Ryan's conduct was exemplary. He was given the documents as part of the material for the use of those prosecuting. He formed the view that the material was relevant but such that he would not use it. As part of carrying out the prosecution, he gave the material to the defence. That is what he was bound to do and that is what he did. In opening the appeal, Mr Grossman, SC's stand was that although the applicant had waived its rights under section 56 not to disclose the documents to the SFC, that waiver was limited. He said that the "limit of waiver was that the documents could be produced to the ICAC for the purposes of criminal proceedings or investigation, there was a limitation of production of those documents in court". He went on to say that the applicant would not have objected to the terms of the letter of 17 December 1996. In other words, the applicant did not object to the disclosure to prosecuting counsel of the documents for the purpose of any criminal proceedings that may result from an investigation.

48. The difficulty with which Mr Grossman found himself in relation to his point that these documents should not be used by the defence in cross-examination was that it was an inevitable consequence of his argument that he had to take the position that the documents should never have been passed to the prosecution. This caused Mr Grossman to have to change the nature of his case, fundamentally, in his reply speech. Recognising the difficulty that lay before him, when the point was put to him, Mr Grossman thus sought to say that the documents should never have been passed to the prosecution. This, in my view, in terms of the letter of 10 December 1996, is wrong.

49. Even if my construction of the letter of 10 December 1996 is wrong and Mr Grossman's argument, which he belatedly took in his reply speech, is correct and the documents should not have been passed to those responsible for prosecuting Mr Lee, that is in fact what happened. The documents having come into the possession of the prosecution, the prosecution was bound to pass them to the defence as unused but relevant material. In those circumstances, there can be no question of the defence not being able to use them for the purposes of defending Mr Lee.

50. I would dismiss this appeal.

Hon Keith JA :

The relevant documents

51. The only documents which have been served on Kevin Lee's solicitors and whose return Rockefeller & Co. Inc. ("Rockefeller") claims are the records of various interviews. Those interviews took place in the wake of regulatory concerns which the Securities and Futures Commission ("the SFC") had expressed about the activities of Mr Lee and the wholly-owned subsidiary of Rockefeller by which he was then employed. The first of the interviews was an interview of Mr Lee by one of Rockefeller's senior managers. The evidence does not reveal whether any record was kept of that interview, and I assume that no record was. However, the subsequent interviews of Mr Lee - and other employees of the subsidiary - were recorded in that two of the lawyers who attended them made handwritten notes. The notes of one of them were typed up, and his typed-up notes of those interviews were the documents served on Mr Lee's solicitors to which the application to Bokhary J related. The records primarily contained the accounts of Mr Lee and others of the events within Rockefeller's subsidiary which gave rise to the SFC's concerns. But we were told that they also contained comments from the lawyers indicating their current thinking on the impact which the interviewees' accounts of the events which they described would have on (a) the current regulatory investigation and (b) any litigation which might be commenced.

Legal professional privilege

52. The hearing before Bokhary J proceeded upon the assumption that the return of the documents was dependent on the application of the principles relating to legal professional privilege. In the light of the authorities, the critical question was: was the dominant purpose for which the documents were brought into existence the use of them or their contents to obtain legal advice or to conduct, or to assist in the conduct of, litigation which was in reasonable prospect? The evidence here was sparse. The only relevant evidence was contained in the affirmation of Jonathan Chi Yiu Mok, a lawyer with Rockefeller's solicitors, in which he stated:

".... all meetings/interviews which were held were specifically for the purpose of rendering legal advice with the possibility of litigation in mind ...."

I make two comments on that statement. First, he was not at the interviews. He does not state the source of his belief. Admittedly, at the beginning of his affidavit he referred to information "gleaned from the files and records kept by [Rockefeller] and my firm", but in an area as sensitive as this, it would, I think, have been more appropriate for Mr Mok to have spelt out the precise source of his information. Secondly, Mr Mok's statement purported to explain why the interviews took place, whereas the critical issue was why those interviews were recorded, because it is the dominant purpose for which the documents were brought into existence which was important.

53. Having said that, I would not want Rockefeller's claim to founder on the rocks of inadequate drafting, and I can assume, I think, that the typed-up notes came into existence for the purpose of having a record of what Mr Lee and the other interviewees had said in the interviews. The question then was: what was the purpose of having a record of those interviews? In the light of Mr Mok's affidavit, it can, I think, be said that a record of the interviews was required so that informed legal advice could be given to Rockefeller in the event that the events about which the interviews took place gave rise to litigation or continued regulatory investigation. Thus, the dominant purpose for which the documents were brought into existence was a purpose which resulted in the documents acquiring legal professional privilege.

54. In refusing to classify the records as documents to which legal professional privilege attached, the judge regarded as critical the fact that Mr Lee was employed by Rockefeller's subsidiary, and that it was Rockefeller's subsidiary whose activities were being investigated, whereas the claim to privilege was being made by Rockefeller itself. For my part, I do not regard that as a relevant consideration. Even though the matters being investigated related to Rockefeller's subsidiary, the fact of the matter is that, since the documents were produced for Rockefeller's use, the privilege was theirs.

Waiver

55. The next question is whether Rockefeller's privilege in the documents had been waived to such an extent as to permit the Secretary for Justice, into whose hands the documents eventually came, to disclose them to Mr Lee's solicitors. It is important to note that Rockefeller was not obliged to produce the documents to the SFC's investigators. It could have declined to do so pursuant to section 56(4) of the Securities and Futures Commission Ordinance (Cap. 24) on the ground that the documents were privileged. However, Rockefeller chose to waive its right to rely on section 56(4). It was prepared to produce the documents to the SFC.

56. I note that it its solicitors' letter of 10 December 1996 Rockefeller expressly purported to reserve its right to assert that the production of the documents to the SFC did not constitute a waiver of its privilege. In my view, that stance was conceptually unsound. If a document is privileged, the person who enjoys the benefit of that privilege can refuse to produce it. Privilege renders lawful a refusal to produce which would otherwise be unlawful. Thus, I do not see how it is possible to produce documents which are privileged while at the same time claiming that the privilege which attaches to them is not being waived. In my judgment, by not relying on section 56(4) and by producing the documents to the SFC, the privilege which Rockefeller had previously enjoyed in the documents was waived.

Confidentiality

57. But that is not necessarily the end of the matter. Even if the legal consequence of producing the documents to the SFC amounted to a waiver of privilege, the documents were still confidential, and it was open to Rockefeller to limit the circumstances in which they could be used. In that respect, I read the letter of 10 December 1996 as doing two things. First, the letter stated that it "in no way inhibits or restricts the SFC's use of the documents and underlying materials in the discharge of its regulatory responsibilities". The SFC was therefore being given a carte-blanche to use the documents in whatever way it chose provided that the use related to its regulatory responsibilities. Indeed, the letter went on to state that the SFC could use the documents when its investigators interviewed persons in connection with the investigation.

58. Secondly, the letter recorded that the SFC could disclose the documents to "those persons specified in section 59" of the Ordinance. That permission is, at first blush, inconsistent with an obligation which the letter recorded the SFC as assuming, which was to keep the documents confidential "in accordance with the provisions of section 59". On reflection, there is, I think, no inconsistency between the two. The SFC's undertaking to keep the documents confidential was a reference to the general obligation under section 59(1) imposed on persons who carry out functions under the Ordinance to preserve the secrecy of any matters which come to their knowledge while performing those functions. On the other hand, the permission which the SFC had to disclose the documents to "those persons specified in section 59" was a reference to section 59(2) which permits the SFC to disclose information in a whole range of circumstances. Those circumstances include disclosing information "for the purpose of .... criminal proceedings ... in Hong Kong" (section 59(2)(b)), and disclosing information to the ICAC and to the Secretary for Justice if that information was obtained (as here) under section 33 (section 59(2)(k)). It follows that the eventual receipt of the documents by the Secretary for Justice for the purpose of criminal proceedings against Mr Lee in Hong Kong was within the terms on which Rockefeller permitted the documents to be used.

59. If Rockefeller must be treated as having permitted the documents to be disclosed to the Secretary for Justice for the purpose of criminal proceedings against Mr Lee in Hong Kong, that permission must be treated as having included such use as the Secretary for Justice was required to make of them in those proceedings. The Secretary for Justice's obligation to disclose unused material to Mr Lee's solicitors came within that rubric. There is nothing in the letter of 10 December 1996 which prohibited such use. The letter did not prohibit the use to which the documents could be put once they had been disclosed to "those persons specified in section 59", for example the Secretary for Justice. I note that in the letter Rockefeller expressly asserted that the delivery of the documents to the SFC should not amount to a waiver of any confidentiality of the documents in relation to subsequent civil or criminal proceedings, but no such reservation was asserted in respect of the disclosure of the documents by the SFC to those persons specified in section 59" or any subsequent disclosure of the documents by any person specified in section 59 to third parties.

60. It follows that the disclosure of the documents by the Secretary for Justice to Mr Lee's solicitors came within the terms on which Rockefeller had expressly permitted the documents to be used.

Conclusion

61. For these reasons, therefore, I would dismiss this appeal, but I wish to make the following observations. I have already referred to the fact that the hearing before Bokhary J proceeded upon the assumption that the return of the documents was dependent on the application of the principles of legal professional privilege. I am not sure whether that was correct. The application before the judge was not an application in the criminal proceedings which she was trying. It was an application, initially ex parte but in fact on notice, in free-standing civil proceedings to which an HCMP no. had been assigned. That may not have been appreciated at the time - perhaps understandably, because the use which Mr Lee's lawyers were to make of the documents was imminent, and that meant that the application had to be made urgently. All that explains why there had been no originating process filed nor any undertaking for such process to be filed. However, had it been appreciated that the application was being made in free-standing civil proceedings, it would also have been appreciated that a cause of action would have to be found.

62. I accept entirely that privilege is a status which either does or does not attach to a particular document. I also accept without reservation that the doctrine of privilege may be invoked by a party to proceedings to resist an order that he be required to produce the document to which privilege attaches. But it may be that the use of a document to which legal professional privilege attaches cannot form the basis of a cause of action by a person who is not a party to the proceedings in which the document is to be used. I have not found any authority on the point, and it may be that the dearth of any authority on the point is due to the fact that no-one has asserted privilege in documents which they have elected to produce. Thus, if Rockefeller has a cause of action in relation to the use of the documents, it may be that its only cause of action is the cause of action for breach of confidence. That is an issue which requires mature consideration, and I cannot say that I am close to reaching a conclusion on it. Fortunately, that does not matter because for the reasons I have given the outcome of this appeal would have been the same whatever the nature of Rockefeller's cause of action.

63. I say that for these reasons. If legal professional privilege could have formed the basis of Rockefeller's cause of action, it would have failed on the ground that that privilege had been waived. However, if Rockefeller's claim had not failed on that ground, Rockefeller would have been entitled to the relief it sought: the modern law on legal professional privilege is that the determination of whether legal professional privilege attaches to a particular document does not depend upon a balancing exercise. If the privilege attaches to a document, then it is immune from production however strong the countervailing arguments may be.

64. On the other hand, if Rockefeller's only cause of action had been the cause of action for breach of confidence, it would have failed on the ground that the disclosure of the documents by the Secretary for Justice to Mr Lee's solicitors came within the terms on which Rockefeller had expressly permitted the documents to be used. However, if Rockefeller's claim had not failed on that ground, a balance would have had to have been struck between Rockefeller's legitimate interest in preserving its confidentiality in the documents and the interests of Mr Lee in his criminal trial. In my judgment, that balance would have come down in favour of the latter. In the circumstances, I would not have exercised my discretion to grant the relief sought.

Hon Godfrey VP :

65. As to costs, subject to hearing counsel, we propose to order that the costs of the defendants of the proceedings here and below be taxed (if not agreed) and paid by the plaintiff to the defendants.