Dr Q v. THE HEALTH COMMITTEE OF THE MEDICAL COUNCIL OF HONG KONG

HCMP 1970/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1970 OF 2013

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REASONS FOR DECISION

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1.  There are 2 summonses for discovery and inspection taken out by Dr Q pursuant to Order 24, rules 12 and 13 of the Rules of the High Court.

Background

2.  Dr Q seeks to commit the respondent (“HC”) for contempt for failing to comply with an order for mandamus.  The background to this case have been set out in paragraphs 1-11 of my judgment dated 30 August 2013.

3.  In opposition to the contempt proceedings, the respondent (“HC”) has filed 2 affirmations of Doctor Chow and one Ms Ho (Assistant Secretary (Licentiate Committee) of the Medical Council of Hong Kong).  In summary, HC denies that it was guilty of contempt of court.  It also explains that any delay in compliance with the order of mandamus was due to delay on the part of its ex-Legal Adviser in giving legal advice.

4.  The evidence discloses that since the issue of the order of mandamus and up to grant of leave, the HC has taken the following steps towards fixing a hearing: circulation of a committee paper and seeking legal advice.

5.  The committee paper was dated 7 February 2013 (“the HC paper”) addressed to its members for the purpose of considering: (i) Dr Q’s application for legal representation; and (ii) whether updated medical report of Dr Q should be obtained for the new hearing.  Apart from the 2 purposes, the rest of the HC Paper as exhibited was redacted.

6.  By an email dated 20 March 2013 (“the March email”), HC informed the ex-Legal Adviser that, amongst others, the HC has agreed to grant approval for Dr Q’s application for legal representative in the fresh hearing; and that Dr Q should be asked to submit to any 2 of 5 designated doctors for medical reports on his latest health conditions.  Advice was sought as to:

(i) Whether HC’s draft letter (“the draft letter”) was legally in order;

(ii) Whether the HC should refer to Dr Q by his full name;

(iii) What documents to give to the medical doctors whom Dr Q chose to attend to; and

(iv) Any other observations the ex-Legal Adviser had on the subject.

There was a paragraph 5 (“the 5^th issue”) to this email which has been redacted in the exhibit.

7.  The draft letter was not enclosed with the March email out of inadvertence of Ms Ho, which I accept. 

8.  The ex-Legal Adviser did not give his advice until 29 August 2013, the day after the grant of leave for committal for contempt was reported in the press.

9.  Upon the reminder of the applicant’s solicitors, Doctor Chow’s 1^st affirmation was sent to the ex-Legal Adviser for comment.  On 6 January 2014, the ex-Legal Adviser responded to DOJ (who acts for the HC) at length by letter (“the Response Letter”), with 4 annexures. It was then that the omission to enclose the draft letter to the ex-Legal Adviser was discovered.

10.  In the Response Letter, the ex-Legal Adviser requested HC to rectify the untrue and/or misleading information in Doctor Chow’s 1^st affirmation by way of supplemental affirmation.  He also stated in the last paragraph of the Response Letter:

“While I note from paragraph 24 of the affirmation that the Chairman of the Health Committee asserted the non-waiver of privilege in respect of ‘all communications between the Legal Advise (sic) and the Council, the Secretariat or the HC not disclosed [in the affirmation]’, by putting in issue the matters set out in the affirmation he has in fact waived privilege in respect of all relevant communications. Nevertheless, in order to avoid argument as to the extent of waiver and the communications which can be disclosed to the Court and the parties, it will be in the interest of your client and consistent with an affirmant’s duty to tell the truth for the Chairman of the Health Committee to rectify the untrue/misleading information by a supplemental affirmation.”

11.  The Response Letter but not the 4 annexures was exhibited to the 2^nd affirmation of Doctor Chow subsequently filed.

The application and grounds in opposition

12.  Dr Q seeks an order for the HC to produce the following documents for the court’s inspection and to rule on whether the claimed privilege is or is not attached to the whole or part of them:

Class A: The HC paper;

Class B: The unredacted March email;

Class C: The unredacted emails of the secretary to HC to the ex-Legal Adviser on 29 August 2013 and the reply of the ex-Legal Adviser on the same date; and

Class D: Annexures to the Response Letter.

13.  HC opposes on the ground that the documents were irrelevant or otherwise privileged from disclosure and HC had not waived the privilege.

The legal principles under Order 24

14.  Under Order 24, rule 12(1),

“(1) At any stage of the proceedings in any cause or matter the Court may, subject to rule 13(1), order any party to produce to the Court any document in his possession, custody or power relating to any matter in question in the cause or matter and the Court may deal with the document when produced in such manner as it thinks fit.”

15.  Under Order 24, rule 13(1) and (2),

“(1) No order for the production of any documents for inspection or to the Court or for the supply of a copy of any document shall be made under any of the foregoing rules unless the Court is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.

(2) Where on an application under this Order for production of any document for inspection or to the Court or for the supply of a copy of any document privilege from such production or supply is claimed or objection is made to such production or supply on any other ground, the Court may inspect the document for the purpose of deciding whether the claim or objection is valid.”

16.  The onus of proof is on the applicant.  It is not enough for him to show that the documents are relevant; he must also meet the criteria mentioned in rule 13(1).  The court will use the issues as identified by the parties in the pleadings and other related documents to determine whether production is necessary either to dispose fairly of the cause or matter or to save costs.  Hong Kong Civil Procedure 2014, Vol 1, para 24/13/1.  It is only upon meeting the criteria in rule 13(1) that the court then needs to consider if a document is privileged and whether the privilege has been waived.

17.  As to when a judge would inspect the document to rule on privilege under Order 24 rule 13, this was explained by Jenkins LJ in Westminster Airways Ltd v Kuwait Oil Co Ltd [1951] 1 KB 134 at 146:

“The question whether the court should inspect the documents is one which is a matter for the discretion of the court, and primarily for the judge of first instance. Each case must depend on its own circumstances; but if, looking at the affidavit, the court finds that the claim to privilege is formally correct, and that the documents in respect of which it is made are sufficiently identified and are such that, prima facie, the claim to privilege would appear to be properly made in respect of them, then, in my judgment, the court should, generally speaking, accept the affidavit as sufficiently justifying the claim without going further and inspecting the documents.”

Legal principles on privilege

18.  Legal professional privilege (“LPP”) has to be closely guarded. In the case of doubt, it will be resolved in favour of the party claiming it.  There is a distinction between a reference to or a reliance on (a) the fact that legal advice had been sought and given or the effect of any such advice and (b) the contents of privileged communications or advice given.  In the former case there is no waiver of privilege, in the latter case there is.  See Goldlion Properties Ltd & Ors v Regent National Enterprises Ltd [2006] 1 HKLRD 793 at 805-807; Daimler AG (formerly Mercedes-Benz AG) v Leiduck, HCA 4089/1994, 28 July 2011, at para 38.

19.  On the proper test for waiver, the Goldlion Properties case further said,

“36. As for the proper test to be applied for considering whether there is waiver, para 10-17 of Matthews and Malek, Disclosure (2^nd ed., 2000), adopted by the Judge is repeated below:

The key word here is “deploying”. A mere reference to privileged document in an affidavit does not of itself amount to a waiver of privilege, and this is so even if the document referred to is being relied on for some purpose, for reliance in itself is said not to be the test. Instead, the test is whether the contents of the document are being relied on, rather than its effect. The problem is acute in cases where the maker of an affidavit or witness statement has to give details of the source of his information and belief, in order to comply with the rules of admissibility of such affidavit or witness statement. Provided that the maker does not quote the contents, or summarise them, but simply refers to the document’s effect, there is apparently no waiver of privilege.

…

44. The test whether there is waiver in its practical application can be found in Hollander, Documentary Evidence (8^th ed., 2003) para.17-41, which reads:

There is a distinction to be drawn between a reference to the fact of legal advice and to its contents.  Referring to the fact that legal advice has been taken will not normally give rise to a waiver of privilege.  Similarly, reference to the existence of a privileged document will not be sufficient; there must be reference to or reliance on its contents.  Thus to state that before attending interview with the police I had taken legal advice is not a waiver of privilege.  But to say that I did not tell the police where I was on Tuesday because my solicitor advised me not to, does rely on the contents of the legal advice; here the point of the reliance on the privileged advice is to provide an explanation or justification for the failure to provide an answer to the police.  What is important here is not whether legal advice was taken, but what was the content.”

20.  Privilege may attach to part of a document and waived as to the other if severance is possible: Great Atlantic Insurance Co v Home Insurance Co and others [1981] 1 WLR 529, per Templeman LJ:

“The second question is whether, the whole of the memorandum being a privileged communication between legal adviser and client, the plaintiff may waive the privilege with regard to the first two paragraphs of the memorandum but assert privilege over the additional matter. In my judgment, severance would be possible if the memorandum dealt with entirely different subject matters or different incidents and could in effect be divided into two separate memoranda each dealing with a separate subject matter. (at page 536B-C)

…

In my judgment, the simplest, safest and most straightforward rule is that if a document is privileged then privilege must be asserted, if at all, to the whole document unless the document deals with separate subject matters so that the document can in effect be divided into two separate and distinct documents each of which is complete.” (at page 536 E-F)

21.  Partial wavier giving rise to unfairness or misunderstanding should not be allowed.  In other words, a party cannot pick and choose which part of the evidence to disclose to strengthen its case and conceal its weakness: Paragon Finance plc (formerly National Home Loans Corpn plc) v Freshfields [1999] 1 WLR 1183, per Lord Bingham of Cornhill CJ, p 1188C:

“A client expressly waives his legal professional privilege when he elects to disclose communications which the privilege would entitle him not to disclose. Where the disclosure is partial, issues may arise on the scope of the waiver. Practical difficulties occur in determining such issues, as in Nea Karteria Maritime Co Limited v Atlantic & Great Lakes Steamship Corporation and Cape Breton Development Corporation and Others (No 2) [1981] Corn. LR 138, General Accident Fire and Life Assurance Corp. Ltd. and Others v Tanter and Others [1984] 1 WLR 100 and R v Secretary of State for Transport ex parte Factortame and Others (1997) 9 Admin LR 591. But the law is clear. While there is no rule that a party who waives privilege in relation to one communication is taken to waive privilege in relation to all, a party may not waive privilege in such a partial and selective manner that unfairness or misunderstanding may result.

22.  This is particularly acute where a client sues or makes allegations against a former solicitor:

“When a client sues a solicitor who has formerly acted for him, complaining that the solicitor has acted negligently, he invites the court to adjudicate on questions directly arising from the confidential relationship which formerly subsisted between them. Since court proceedings are public the client brings that formerly confidential relationship into the public domain. He thereby waives any right to claim the protection of legal professional privilege in relation to any communication between them so far as necessary for the just determination of his claim; or, putting the same proposition in different terms, he releases the solicitor to that extent from the obligation of confidence by which he was formerly bound. This is an implication of law, the rationale of which is plain. A party cannot deliberately subject a relationship to public scrutiny and at the same time seek to preserve its confidentiality. He cannot pick and choose, disclosing such incidents of the relationship as strengthen his claim for damages and concealing from forensic scrutiny such incidents as weaken it. He cannot attack his former solicitor and deny the solicitor the use of materials relevant to his defence. ...” Paragon Finance plc v Freshfields, at p 1118D-G.

Relevance of the documents sought

23.  The defence in the present case was that HC had tried its best to fix an early hearing date by seeking legal advice but the ex-Legal Adviser was late in giving advice.  The time line was relevant but not the reason for the delay.  The defence was not that the advice was erroneous, so the quality of the advice was irrelevant.  It was not that advice should not have been sought or that liability should be apportioned between HC and the ex-Legal Adviser.  Hence, the contents of the legal advice were irrelevant.

24.  In support of the defence, Class A document purports to show that there was a paper circulated amongst members of the HC dealing with 2 issues. Classes B and C purport to show that legal advice was sought on 5 issues since 20 March 2013 but was not forthcoming until 29 August 2013.  These purport to show the steps taken by HC towards fixing a hearing and the time frame.  The contents of the documents sought were irrelevant to the issue of liability for contempt.

25.  Further, the HC consisted of lay members.  The discussion of the 2 issues in the HC paper and seeking legal advice were appropriate.  The discovery is not relevant to liability or mitigation.

26.  Dr Q simply fails to overcome the first hurdle for seeking disclosure, namely, to demonstrate relevance and hence necessity for fair disposal of the cause. With this in mind, I proceed to analyze the 4 classes of documents.

Class A – the HC Paper

27.  Mr McCoy SC submits that the HC paper was not protected by privilege because it was an internal discussion paper and not legal advice.  As a statutory body, the HC must conduct itself with fairness and the utmost transparency to Dr Q and the court.  According to R v Lancashire County Council ex parte Huddleston [1962] All ER 941 at 945e:

“The analogy is not exact, but just as the judges of the inferior courts when challenged on the exercise of their jurisdiction traditionally explain fully what they have done and why they have done it, but are not partisan in their own defence, so should be the public authorities. It is not discreditable to get it wrong. What is discreditable is a reluctance to explain fully what has occurred and why.”

28.  Having disclosed and relied upon the HC paper, he submits that the privilege on the whole of the HC Paper has been waived: Paragon Finance plc v Freshfields.

29.  Mr McCoy SC submits that there can be no informed argument without disclosure: Great Atlantic Insurance Co. v Home Insurance Co. and Others, per Templeman LJ, at 538G.  Unless the redacted passages of the HC Paper and the emails are disclosed, it is impossible to consider how much weight should be placed on the legal advice in mitigation of the Respondent’s contempt.

30.  Mr Wong SC, however, submits that a party giving discovery of a document is not obliged to disclose any part which is irrelevant to the issues in the case.  Disclosure of an unprivileged part of a document is not waiver of privilege for the rest, even though both parts deal with the same subject matter: GE Capital Corporate Finance Group Ltd v Bankers Trust Co [1995] 1 WLR 172 at 176F-G per Hoffmann LJ. 

31.  As deposed to by Doctor Chow, the HC Paper was about the 2 specified issues.  The contents dealt with the same subject matter.  What I disagree with Mr McCoy SC is that it was not just a discussion paper on facts. Dr Chow has already deposed to the fact that the HC Paper contained confidential discussion and referred to legal advice.

32.  HC has not deployed the contents of the HC paper.  In disclosing just the first page containing the purpose, HC merely relied on the fact of there being a discussion amongst its members of 2 issues by circulation of the HC paper.  Not even the effect of the legal advice was relied on.  HC was not picking and choosing part of the contents for disclosure whilst concealing part.  No unfairness or misunderstanding could have arisen from just disclosing the purpose of the HC paper.

33.  The last paragraph in the Response Letter taking the view that the claim to privilege could not be maintained would not change the position and should not be regarded as a concession to waive privilege on behalf of the HC.  After all, the ex-Legal Adviser did not have the benefit of the legal research that this court has.

34.  In my view, the contents of the HC paper are not relevant to the cause and could not be necessary for its fair disposal.  The privilege was never waived through deployment of the contents.

Classes B to C – Emails between HC and the ex-Legal Adviser and the 5^th Issue

35.  Both Classes can be considered together as they relate to the 5^th issue.  What Dr Q asks for was just the subject matter and not the contents of the legal advice.  HC has disclosed 4 subject matters but not the fifth.

36.  I have alluded to the question of relevance in paragraphs 23 to 26 above. Ascertaining what the 5^th issue was will not help towards disposal of any matter in the contempt proceedings. 

37.  Further, simply by looking at the documents themselves, the court is able to find that the claim to privilege was formally correct: Westminster Airways Ltd v Kuwait Oil Co Ltd [1951] 1 KB 134, 146.  It was also apparent that the 5^th issue was a distinct issue severable from the other 4 raised in the March email.  Privilege on the 5^th issue has not been waived in any event by disclosure of the other 4 issues: Great Atlantic Insurance Co v Home Insurance Co, at page 536E-F.  No unfairness or misunderstanding could have arisen by disclosing 4 but not the 5^th issue.

38.  I am not satisfied that Classes B to C were relevant or necessary, or that privilege was wrongly claimed or waived.

Class D – Annexures to the Response Letter

39.  Mr McCoy SC submits that it was evident from the Response Letter that he strongly disputed the attribution of the blame to him.  The Response Letter and the enclosures were therefore his attempt to supply the court with the proper context in which the alleged reasons for non-compliance with the order of mandamus could be considered.  The withholding of those enclosures was not only unfair to the ex-Legal Adviser but also a deliberate impediment to the fair resolution of these proceedings.  Clearly the last paragraph of the Response Letter shows that he did not believe that privilege could be maintained.

40.  In the circumstances, Mr McCoy SC submits that it is imperative that the ex-Legal Adviser be given the fullest opportunity to explain himself.  HC cannot censor his attempt to explain himself, especially if that explanation may undermine HC’s case.

41.  I agree in principle with Mr McCoy SC.  In my view, the ex-Legal Adviser acted properly to defend his own reputation and to put forth truthful matters to assist the court.  He was at liberty to rely on privileged matters to substantiate his points.  HC is taken to have waived any right to claim LPP so far as necessary for the just determination of the cause/matter that the court has to adjudicate on: Paragon Finance plc v Freshfields.  But what is necessary does not depend on the subjective views of the ex-Legal Adviser but the issues disclosed in the cause.

42.  Annexure A was to illustrate the ex-Legal Adviser’s point that the draft letter has not been enclosed with the March email.  This has been conceded by HC, and Doctor Chow and Ms Ho have filed corrective affirmations.  Production of Annexure A would be otiose.

43.  Annexures B and C dealt with what was described as a “manpower austerity measure” that arose out of the Court of Appeal’s ruling in CACV 205, 206 and 209 of 2011.  The ex-Legal Adviser had given legal advice before and commented that it was a policy decision to be made by the Council which could be made in its January 2013 Policy Meeting, before setting a fresh hearing for Dr Q.

44.  According to Doctor Chow, at the Policy Meeting held on 6 February 2013, the Council has resolved not to adopt the manpower austerity measures. In the Response Letter, the ex-Legal Adviser took issue with Doctor Chow on what the effect of the policy decision of the Council was.  He apparently did not consider the manpower austerity issue to be closed and regarded it as having still an impact on Dr Q’s hearing.

45.  Annexures B and C quoted legal advice and any privilege would have been waived.  However, the HC does not rely on the manpower austerity issue to explain its breach of the order of mandamus.  See para 6 of Doctor Chow’s 2^nd affirmation and footnote 9 to Mr Wong SC’s skeleton submission.  The ex-Legal Adviser’s comments on the issue was more for justifying his own view, which was entirely understandable, than for resolution of the cause.  Accordingly, no relevance has been shown and disclosure of Annexures B and C would not be necessary for the fair disposal of the cause or just determination within the meaning of Paragon Finance plc v Freshfields.

46.  With regard to Annexure D, the ex-Legal Adviser stated as follows:

“The letter dated 30 Aug 2013 invited Dr Q to submit to medical examination by 2 medical examiners, in order to prepare for the resumed hearing which is yet to be fixed. By the time the medical reports are ready, if the issue of ‘appointing temporary members’ has been resolved with FHB, or if the Council has reached an alternative solution (such as adopting the ‘manpower austerity measures’), the HC hearing can then be conducted. If it is decided to adopt the ‘manpower austerity measures’ for the front-end proceedings (such as the HC hearing), the measures will then be implemented.”

47.  Annexure D clearly quoted legal advice and any privilege would have been waived.  However, I questioned the relevance of Annexure D.  Towards the end of his reply submission, Mr McCoy SC decides not to persist in seeking its disclosure.  It is in my view a correct concession.  Annexure D was to support the manpower austerity issue and this document came into existence after the order of mandamus was breached.  For the same reasons given in respect of Annexures B and C, Annexure D is irrelevant and not necessary for fair disposal of the cause.

Conclusion

48.  Relevance and necessity for fair disposal of the cause have not been made out for all 4 classes of documents having regard to the issues in the cause.  The 2 summonses are therefore dismissed.  I reserve the question of costs until the time when I shall hand down the judgment in the contempt proceedings.

49.  I thank counsel for their assistance.