LAI CHEE YING v. COMMISSIONER OF POLICE

HCMP 1218/2020

[2022] HKCFI 3003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1218 OF 2020

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BETWEEN

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D E C I S I O N

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A. INTRODUCTION

1.  This is my determination pursuant to the protocol put in place on 19 November 2020, and as varied on 26 February 2021, 4 August 2022 and 1 September 2022 (“Protocol”), arising out of the search operation which took place on 10 August 2020 at, inter alia, the plaintiff’s residence resulting in the seizure of, inter alia, the plaintiff’s two iPhones namely (i) a white iPhone 11 Pro Max (Police reference: 498) and (ii) a green iPhone 11 Pro Max (Police reference: 499) (together the “Seized Materials”).

A1. Burden on the plaintiff

2.  In granting the Protocol, it was decided (inter alia), in line with well-established authorities, that it falls upon the plaintiff to make good any legal professional privilege (“LPP”) or journalistic material (“JM”) claim. Hence, pursuant to paragraph 11(b) of the Protocol, the plaintiff bears the burden of specifying (by way of affidavit and written submissions) the “special basis or bases and the full factual context upon which” any of the Seized Materials was/were “said to constitute” LPP or JM. There was no appeal against the Protocol. In fact, the plaintiff’s solicitors, in a recent letter dated 28 July 2022, stated that they are “well aware that in order to establish those claims and assist the Court, the ‘full factual context’ of those claims must be set out”.

A2. Summary of claims

3.  The plaintiff has now filed his 2^nd Affidavit dated 1 August 2022 (“Lai 2^nd”) and skeleton submissions (“P Skel”) pursuant to paragraph 11(b) of the Protocol, as well as written submissions in reply (“P Reply Skel”) pursuant to paragraph 13 of the Protocol. As things now stand:

(1) The plaintiff makes and maintains his LPP claim over items 28 to 76^[1] (ie 49 items) (“LPP Claims”). Upon taking into account duplications^[2], there are in fact only 40 individual LPP claims; and

(2) The plaintiff makes and maintains 8,098 JM claims (“JM Claims”).

A3. Summary of the Commissioner’s position

4.  As mentioned above, the burden lies squarely on the plaintiff to make good his alleged LPP and JM claims. The Commissioner of Police (“Commissioner”) submits that the plaintiff has failed to properly substantiate (i) most of his LPP Claims and (ii) all of his JM Claims.

5.  In particular, so far as the LPP Claims are concerned (see Section B below):

(1) Having considered the further information contained in P Skel, the Commissioner agrees not to dispute the LPP claims in relation to: (i) communications between the plaintiff and his Senior Counsel after his arrest for the purpose of seeking legal advice (§§15, 16(6) P Skel); and (ii) communications between the plaintiff and his legal representatives in relation to the XXXXXX action against XXXXXXXX (§§15, 16(5) P Skel).

(2) As to the remaining LPP claims (“Remaining LPP Claims”) (see: Section B2.2 below), the Commissioner submits that the plaintiff is clearly unable to make out the only basis of privilege relied upon, namely litigation privilege. By way of an overview:

(a) To properly invoke litigation privilege, it falls upon the plaintiff to satisfy the court that (i) litigation must be in progress or in contemplation; (ii) the communication must have been made for the sole or dominant purpose of conducting that litigation; and (iii) the litigation must be adversarial, not investigative or inquisitional: Three Rivers District Council and Others v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610, §102.

(b) First, the Remaining LPP Claims were instant messages on the ‘Signal’ application which came into existence prior to the search and arrest operation on 10 August 2020. Before the said operation, the criminal investigation against the plaintiff and others remained highly confidential and was not disclosed to the plaintiff. The plaintiff could not have been aware that there was any investigation, let alone possible prosecution against him before the operation. Hence, on the basis of the available information from the plaintiff, there is no basis whatsoever to satisfy the requirement that litigation under the National Security Law (“NSL”) was reasonably contemplated or anticipated. Putting the plaintiff’s case to its highest, there was “a mere possibility of litigation” or a “general apprehension of future litigation”, which (as explained below) does not, as a matter of law, satisfy the requirement so as to attract the protection of LPP. See Section B2.2(i) below.

(c) Second, in any event, there is no evidence to substantiate any suggestion that the materials covered by the Remaining LPP Claims were created for the dominant purpose of conducting litigation. Even based on the plaintiff’s own submissions, the communications were for the purpose of “express[ing] concern over the potential interference of the NSL with the Plaintiff’s constitutional rights” (§11 P Skel), making arrangements to meet up (§14 P Skel), or “to ‘brainstorm’ how best to protect themselves from an anticipated interference into their constitutional rights by the NSL” (§13 P Skel). These communications were, at best, only general discussions in light of developments in society. See Section B2.2(ii) below.

(d) Third, other than the XXXXXX action against XXXX XX which is no longer in dispute, the only actual litigation mentioned by the plaintiff in his evidence was the Tony Chung case (§15 P Skel). However, the plaintiff is not a party or “client” in that matter and the lawyers involved in the relevant discussions are not Chung’s lawyers. Hence, no litigation privilege attaches to the relevant discussions by third parties outside the ordinary remit of the proceedings.

6.  As to the JM Claims (see Section C below):

(1) As mentioned above, it was decided by the court, as embodied in paragraph 11(b)(ii) of the Protocol, that it falls upon the plaintiff to prove and make good any JM claims, including to file affidavit and written submissions specifying “the special basis or bases and the full factual context upon which the Disputed JM Materials were said to constitute JM” (Emphasis added). In the face of such clear requirements set out in the Protocol, in Lai 2^nd, the plaintiff has only supplied generic and general descriptions. Indeed, the descriptions - quite apart from their brevity and complete lack of particulars - are self-evidently unhelpful in that they merely contain circular, uninformative self-serving assertions such as “discussions for the purpose of publications by Next Media”, “Images and/or Graphics prepared for consideration for publication by Next Media” or even “self-explanatory”: §23 Lai 2^nd.

(2) Indeed, although JM is given a wide definition under section 82 of the Interpretation and General Clauses Ordinance, Cap 1 (“IGCO”), the mere fact that the material is in possession of a journalist is not determinative of its nature, nor is the form in which the material is published. Among others, the plaintiff must demonstrate that the material in question is directed to informing public debate and on other matters of public interest: A v Commissioner of Police [2021] 3 HKLRD 300, §26.

(3) Further or alternatively, and insofar as is necessary for the Commissioner to rely on this, if the material in question is created, acquired or received for the purpose of a crime, then it would not qualify as JM: R v Central Criminal Court, ex p Bright [2001] 1 WLR 662, applied in A v Commissioner of Police (ibid), §27.

7.  This Decision shall first deal with the LPP Claims, before addressing the JM Claims.

B. LPP CLAIMS

B1. Relevant legal principles on Litigation Privilege

8.  LPP consists of two categories: legal advice privilege and litigation privilege: Three Rivers (supra), §10. The plaintiff only asserts litigation privilege for his LPP Claims.^[3]

9.  Litigation privilege, unlike legal advice privilege, is not confined to communications involving legal advice. It is “wider than [legal advice privilege] but it arises only when litigation is in prospect or pending”. Unlike legal advice privilege, “[f]rom that moment on, any communications between the client and his solicitor or agent, or between one of them and a third party, will be privileged if they come into existence for the sole or dominant purpose of either giving or getting legal advice with regard to the litigation or collecting evidence for use in the litigation” (Phipson on Evidence (20^th ed), §23-79).

10.  In Three Rivers (supra), Lord Carswell said at §102 that:

“…communications between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with existing or contemplated litigation are privileged, but only when the following conditions are satisfied: (a) litigation must be in progress or in contemplation; (b) the communication must have been made for the sole or dominant purpose of conducting that litigation; (c) the litigation must be adversarial, not investigative or inquisitional.”

See also: China Forestry Holdings Co Ltd v KPMG [2020] HKCFI 2614, §13(2).

11.  Clearly, given the wider ambit of the litigation privilege (and the potentially wide application of the privilege as it may extend well beyond communications with legal advisors which consist of legal advice), the requirements/conditions must be strictly adhered to.

12.  Hence, in relation to the court’s approach to the assessment of evidence in support of a claim for privilege, it has been stated that it is necessary to subject the evidence “to ‘anxious scrutiny’ in particular because of the difficulties in going behind that evidence”. “The Court will look at ‘purpose’ from an objective standpoint, looking at all relevant evidence including evidence of subjective purpose”. Further, it is desirable that the party claiming such privilege “should refer to such contemporary material as it is possible to do without making disclosure of the very matters that the claim for privilege is designed to protect”: Phipson (supra), §23-79.

13.  In Starbev GP Ltd v Interbrew Central European Holding BV [2013] EWHC 4038 (Comm) at §11, Hamblen J (as Lord Hamblen of Kersey JSC then was) set out the requirements for a claim for litigation privilege (as summarised in Hollander, Documentary Evidence in Hong Kong (2^nd ed) §16-004):

(1) The burden of proof is on the party claiming privilege to establish it.

(2) An assertion of privilege and a statement of the purpose of the communication over which privilege is claimed in a witness statement are not determinative and are evidence of a fact which may require to be independently proved. The court will scrutinise carefully how the claim to privilege is made out and the witness statements should be as specific as possible.

(3) The party claiming privilege must establish that litigation was reasonably contemplated or anticipated. It is not sufficient to show that there is a mere possibility of litigation, or that there was a distinct possibility that someone might at some stage bring proceedings, or a general apprehension of future litigation. As Eder J stated in Tchenguiz v Director of the SFO [2013] EWHC 2297 (QB) at §48(iii): “Where litigation has not been commenced at the time of the communication, it has to be ‘reasonably in prospect’; this does not require the prospect of litigation to be greater than 50% but it must be more than a mere possibility”.

(4) It is not enough for a party to show that proceedings were reasonably anticipated or in contemplation; the party must also show that the relevant communications were for the dominant purpose of either (i) enabling legal advice to be sought or given, and/or (ii) seeking or obtaining evidence or information to be used in or in connection with such anticipated or contemplated proceedings. Where communications may have taken place for a number of purposes, it is incumbent on the party claiming privilege to establish that the dominant purpose was litigation. If there is another purpose, this test will not be satisfied.

14.  The dominant purpose is a matter for a court to determine after consideration of the relevant evidence. It is not one that will necessarily be determined in favour of the party claiming the privilege simply because its deponent asserts that the essential elements of litigation privilege are present: Passmore on Privilege (4^th ed), §3-071 citing Three Rivers District Council v The Governor and Company of the Bank of England (No 5) [2003] QB 1556, §35.

15.  Affidavits claiming privilege should be “specific enough to show something of the deponent’s analysis of the documents or, in the case of a claim to litigation privilege, the purpose for which they were created. It is desirable that they should refer to such contemporary material as it is possible to do so without making disclosure of the very matters that the claim for privilege is designed to protect”: West London Pipeline & Storage Ltd v Total UK Ltd [2008] EWHC 1729 (Comm), §53.

B2. Analysis on LPP Claims

B2.1 Undisputed claims

16.  As mentioned above, the Commissioner does not dispute the LPP Claims in respect of (i) communications between the plaintiff and his Senior Counsel after his arrest for the purpose of seeking legal advice; and (ii) communications between the plaintiff and his legal representatives in relation to the XXXXXX action against XXXXXXX.

17.  As pointed out by the plaintiff in paragraph 5 of P Reply Skel, the claims that fall within the above 2 categories are items 53, 59 to 60, and 66 to 68. Having inspected the said documents in question, I would agree with the plaintiff in that regard. After taking out these items, the Remaining LPP Claims are items 28 to 52, 54 to 58, 61 to 65, and 69 to 76.

B2.2 The Remaining LPP Claims

18.  Based on information provided by the plaintiff, all the Remaining LPP Claims consist of communications between the plaintiff and other parties during the period from 24 June 2020^[4] to 9 August 2020, which predate 10 August 2020, being the date of the search and arrest operation during which the plaintiff was arrested.^[5] In other words, all the Remaining LPP Claims concern materials which came into existence prior to the arrest and search operation.

19.  Hence, for the plaintiff to succeed in his LPP claims, he needs to make out the litigation privilege, specifically that (i) litigation (in which the plaintiff is a party) was in contemplation; and that (ii) the communication was made for the sole or dominant purpose of conducting that litigation. It is the Commissioner’s case that the plaintiff fails on both limbs, either of which suffices for the Remaining LPP Claims to be dismissed.

(i) Litigation in contemplation?

20.  First, as a matter of indisputable fact, prior to the arrest and search operation, the criminal investigation against the plaintiff and related persons was highly confidential and was not disclosed to the plaintiff (§12, 4^th Affirmation of Hung Ngan dated 31 August 2022 (“Hung 4^th”)). The plaintiff could not have been aware that there was any investigation, let alone possible prosecution against him before the operation on 10 August 2020.

21.  Second, it follows that, perhaps unsurprisingly, the plaintiff has adduced no objective evidence (documentary or otherwise) to substantiate the bare assertions contained in Lai 2^nd as to his alleged contemplation of litigation prior to his arrest.

22.  In the words of the learned editor of Passmore (supra) §3-174:

“In summary, the litigant - especially the defendant (since a claimant as the allegedly aggrieved party will know sooner than his opponent, who is unlikely to know the claimant’s state of mind in terms of the extent of his willingness or readiness to sue, if proceedings are likely) - must appreciate that events have occurred which may, in time, cause him to sue or to be sued. Clearly, some form of notification of impending litigation, such as a letter before action, will minimise or remove debates as to whether litigation is properly anticipated at a particular point for the purpose of the privilege. At the other extreme, absent a notification, the party who claims to have anticipated litigation against him must at least be able to point to (i) a set of facts on which (ii) an identifiable claimant is (iii) more likely than not to sue him in respect of (iv) a given cause of action (even if it has not accrued) for (v) a particular type of remedy together with (vi) some justification for his belief that such litigation is thought to be probable or likely.” (Emphasis added)

23.  I agree that the plaintiff has singularly failed to condescend upon the necessary particulars as to the basis for his contemplation of litigation under the NSL. This is especially pertinent where it is made clear under NSL 39, that the “Law shall apply to acts committed after its entry into force for the purpose of conviction and imposition of punishment”. Accordingly, by definition, acts committed prior to the coming into force of the NSL (or the mere fact of the promulgation of the NSL itself) would not and cannot, without more, have given rise to any “contemplation” of litigation under the NSL. Hence, on the basis of the dearth of objective evidence from the plaintiff in these proceedings, it defies belief that the plaintiff began to labour under any contemplation of litigation under the NSL on 24 June 2020, prior to the NSL’s promulgation on 30 June 2020.

24.  Third, as to what Lai 2^nd does say, the plaintiff’s bare assertions are clearly insufficient and fall to be rejected.

(1) So far as the Remaining LPP Claims are concerned (which do not relate to the “eventual XXXXXX proceedings against XX XXXXXX”), the plaintiff asserts that “this is the protected sphere of communications in which various parties, anticipating being caught by the new NSL, discuss how to challenge it (which is therefore the defence in criminal proceedings) - namely through constitutional arguments” (§17 P Skel).

(2) However, I agree it is singularly far from sufficient for the plaintiff to merely assert in evidence that the plaintiff “began taking an interest as to whether such a law would affect our constitutional rights” and that the plaintiff “feared” that the NSL would be used against him: §§14-15 Lai 2^nd.

(3) Such contention is comparable to that advanced by the intervener (British American Tobacco (Investments) Ltd (“BAT”)) in United States of America v Philip Morris Inc and others [2003] EWHC 3028. A summary of the facts is helpfully found in Passmore (supra), §§3-169 and 3-170, as follows:

“In United States of America v Philip Morris Inc, the US government sought to depose an English solicitor for the purposes of a US criminal prosecution against tobacco companies. The deposition was challenged on the basis that the solicitor would be asked about matters that were covered by both advice and litigation privileges. The solicitor’s firm had advised the respondents, including BAT, generally in relation to claims arising from smoking related illnesses between 1985 and 1994. It was a central part of the US government’s criminal case that tobacco companies had allegedly destroyed or suppressed documents that might damage them in litigation. BAT had sought the solicitor’s advice because the then increasing volume of tobacco litigation in the United States, coupled with the fact that claims were being made against its parent company, alerted it to the need to consider its own position. BAT was concerned that it might in due course be sued itself and that it might be required to disclose documents generated by its group’s R&D department for the purposes of proceedings ongoing in the US against a related company. The solicitor’s advice had included the creation and implementation of a document management policy for his clients.

BAT accordingly contended that all communications between its solicitor and third parties made between 1986 and 1994 relating to document review procedures were made for the dominant purpose of preparing for litigation already in contemplation and were in principle subject to litigation privilege. …” (Emphasis added)

(4) At first instance, it was held by Moore-Bick J at §§46-47 that:

“46. …The requirement that litigation be ‘reasonably in prospect’ is not in my view satisfied unless the party seeking to claim privilege can show that he was aware of circumstances which rendered litigation between himself and a particular person or class of persons a real likelihood rather than a mere possibility.

47. I am unable to accept that litigation against BATCo itself was reasonably in prospect in 1985 and 1986 when Lovells were first instructed. I quite accept that at that time Mr Cannar thought it a distinct possibility that sooner or later someone might make a claim against BATCo for smoking-related illness, if only because the burgeoning litigation in the United States could be expected to provide an example to claimants in other countries, but at that stage no claim had been made or even threatened. The fact that Mr Cannar considered it desirable for BATCo to put its house in order because of a general apprehension of future litigation is not in my view sufficient to entitle it to claim litigation privilege in respect of communications made for that purpose. As time went on, of course, the position changed, but it is sufficient for present purposes to say that I am not persuaded that all communications which Mr Foyle might be asked to disclose in the course of the proposed examination are inevitably privileged on this ground.” (Emphasis added)

(5) To borrow Moore-Bick J’s words, in the present case, putting the plaintiff’s case to its highest, where there was no litigation commenced or even threatened, and merely by the passing of the NSL, the plaintiff developed no more than a “general apprehension of future litigation” because of general circumstances surrounding the plaintiff and those he sympathises with. This is akin to the concern by BAT that being engaged in the tobacco business, it was alerted to an increasing risk of litigation, given an “increasing volume of tobacco litigation in the United States, coupled with the fact that claims were being made against its parent company”. This was rightly rejected as being insufficient.

(6) On appeal, in United States of America v Philip Morris Inc and others [2004] 1 CLC 811, the English Court of Appeal dismissed BAT’s appeal and affirmed the first instance decision. Relevantly for present purposes, Brooke LJ (with whom Chadwick and Scott Baker LJJ agreed) held at §68 that “it is quite clear that the judge correctly considered that a ‘mere possibility’ of litigation did not suffice. He was also correct to conclude that the fact that there was ‘a distinct possibility that sooner or later someone might make a claim’ was insufficient. So was ‘a general apprehension of future litigation’.”

(7) At §69, his Lordship continued to consider that “it would be impossible to conclude that litigation against BATCo itself was reasonably in prospect when that company engaged Mr Foyle's services to advise it. The last time anyone had sued that company had been as long ago as 1969, and there had been no letters before action or other precursors of contentious litigation when Mr Foyle was advising it between 1986 and 1994. In his third witness statement the most that Mr Gilbey could say was that ‘it would be reasonable for BATCo to have anticipated that it might be made a defendant to litigation in the US or elsewhere’. This tentative assessment accords well with the contemporary view…” (Emphasis added).

(8) See also Starbev (supra) (cited in paragraph 13 above), which makes clear at §11 that “it is not sufficient to show that there is a mere possibility of litigation, or that there was a distinct possibility that someone might at some stage bring proceedings, or a general apprehension of future litigation”.

(9) Indeed, the plaintiff’s position can be contrasted with the decision of Director of the Serious Fraud Office v Eurasian Natural Resources Corpn Ltd [2019] 1 WLR 791. In that case, the English Court of Appeal considered that the “contemporaneous documents” adduced by the party asserting privilege (ENRC) demonstrated that “it was ‘aware of circumstances which rendered litigation between itself and the SFO a real likelihood rather than a mere possibility’” (§92). Hence, the court concluded at §93 that “the whole subtext of the relationship between ENRC and the SFO was the possibility, if not the likelihood, of prosecution if the self-reporting process did not result in a civil settlement”, and at §96 that “when the SFO specifically makes clear to the company the prospect of its criminal prosecution (over and above the general principles set out in the Guidelines), and legal advisers are engaged to deal with that situation … there is a clear ground for contending that criminal prosecution is in reasonable contemplation”.

(10) That, in contrast, no contemporaneous evidence has been adduced by the plaintiff in the present case is particularly telling. There is no reason for the plaintiff, assisted by a strong team of counsel and experienced solicitors, to have withheld relevant information and evidence to make good his claims. The only plausible inference is that no such evidence is available.

25.  So far as the plaintiff refers to actual litigation which took place during this period, this was apparently concerned with third parties (ie the students who were arrested) instead of the plaintiff himself. While the plaintiff alleged that the arrest of students gave rise to concern over “NSL’s potential interference into [the plaintiff’s] constitutional right”, he does not in fact go so far as to make clear that this fact gave rise to, or affirmed, any contemplation of litigation against himself (see §17 Lai 2^nd). So far as the plaintiff does say that he feared that the NSL “was being used against other persons, and likely against [himself]” (§17 Lai 2^nd), such general “fear” has been addressed above. Indeed, the true purpose of those discussions appears to be to consider “how they might assist in the Tony Chung case” (§15 Lai 2^nd) which is not the same as being in contemplation of litigation against the plaintiff.

26.  Fourth, the fact that legal professionals were involved does not assist the plaintiff. As Etherton LJ held in Westminster International BV v Dornoch Ltd BV [2009] EWCA Civ 1323, §36:

“Each case turns on its own facts and will be judged in the light of the facts as a whole. Neither a statement on behalf of the insurer as to its state of mind, nor the mere fact of retaining solicitors, will separately or together necessarily be sufficient to satisfy the requirements for litigation privilege.” (Emphasis added)

27.  In the premises, I hold that the plaintiff has clearly failed to discharge the burden of establishing that litigation was reasonably contemplated or anticipated when the communications pre-dating his arrest and the search operation came into existence. This is sufficient to dispose of the Remaining LPP Claims. Out of completeness, I shall briefly discuss the Commissioner’s further submission that in any event, the further requirement for litigation privilege is also not satisfied by the plaintiff.

(ii) For the sole or dominant purpose of “conducting” the “litigation”?

28.  First, the plaintiff’s evidence as to the purpose of the relevant materials is again inadequate. Throughout Lai 2^nd, the plaintiff does not in fact say that the “purpose” of the relevant communications was for the conduct of his litigation. At most, it is asserted that those communications “were made with the expectation of confidentiality regarding actions and strategies for this legal battle” (§11 Lai 2^nd).

29.  Similarly, P Skel, at most, refers to the alleged purpose of items 54 and 61 to 63 (which is dealt with below). There is no submission as to the purpose of the remaining items.

30.  This is particularly so, as it is observed that some members of the plaintiff’s “NSL team” are not even lawyers.^[6] Communications with these persons could not, without proper explanation/basis, have been made for the purpose of seeking advice for contemplated litigation. Indeed, there are suggestions that while legal advice given by non-lawyers in respect of litigation might attract litigation privilege, an “additional quality that needs to be emphasised in such cases is that the non-lawyer is acting in a professional capacity”, as opposed to a “discussion with a friend who is a professional” (which is not privileged): Passmore (supra), §3-474; Smith v Daniell (1874) LR 18 Eq 649, 654.

31.  Second, it is difficult to see how this element is satisfied even taking P Skel at its face value.

(1) As to item 54, §11 P Skel asserts (without evidential basis in Lai 2^nd) that “as can be seen by items 60 and 61, the purpose of that communication was to express concerns over the potential interference of the NSL with the Plaintiff’s constitutional rights”. To “express concerns” clearly does not equate to the “conduct” of litigation.

(2) On items 61 to 63, it is said at §14 P Skel that “further arrangements are made for the NSL team to meet up and conduct the aforementioned brainstorming”.

(3) However, these loose remarks are self-evidently insufficient to make out the relevant purpose of “conducting the litigation”. According to Phipson (supra), §23-81:

“In Rawlinson & Hunter Trustees SA v Akers, the Court of Appeal emphasised that the purpose must be conducting the litigation. There are a number of communications which could logically be regarded as being in connection with litigation but which are not for the purpose of conducting the litigation. An example is communicating with litigation funders. As Popplewell J put it Excalibur Ventures Plc v Texas Keystone Inc:

‘If [counsel’s] formulation were correct, it would cover the case of a litigant who buys a new suit in order to appear as a witness and would make all information and documents in relation to that purchase privileged because its dominant purpose would be the conduct of the litigation. In my view, that illustrates the fallacy in the width of his formulation.’”

(4) So far as these messages were sent to other members of the “NSL team”,^[7] this likewise has no bearing on the nature of those communications. On the contrary, it is confirmed at §§13-14 P Skel that the “purpose of this team is to “brainstorm” how best to protect themselves from an anticipated interference into their constitutional rights by the NSL”. This again simply does not equate to the conduct of any litigation, whether contemplated or otherwise. These amounted to no more than general discussions on the potential impact of the NSL. The brainstorming was not conducted for the purpose of enabling legal advice to be sought or given, and/or seeking or obtaining evidence or information to be used in or in connection with any anticipated or contemplated proceedings.

(5) As to items 37 and 64, these communications were apparently made for the purpose of exploring “how [the NSL team] might assist in the Tony Chung case” (§15 P Skel). The plaintiff is not a party to the Tony Chung case. Hence, the plaintiff has in fact confirmed that these communications were not for the purpose of conducting litigation. No litigation privilege attaches to the relevant discussions by third parties which are outside the ordinary remit of the proceedings.

32.  In the circumstances, on the basis of the evidence before the court, the dominant purpose test is clearly not satisfied.

33.  Third, for completeness, so far as the plaintiff seeks to rely on the Lyell^[8] exception (by citing Hansfield Developments v Irish Asphalt Ltd [2009] IEHC 420, §§65-66) that the materials subject to the Remaining LPP Claims are nevertheless privileged, viz because they were compiled or selected for obtaining legal advice (§17 P Skel):

(1) The relevant principles can be found in Wong Wai Keung v Commissioner of Police [2022] HKCFI 374, at §38, where this court rejected a related party’s reliance on the Lyell exception. Similar considerations apply to the instant case.

(2) First, the plaintiff (similarly) “has not provided any explanation as to why or how the compilation of the Disputed Materials could give any clue on the legal advice” (Wong Wai Keung (ibid), §38(1)). There is simply no attempt by the plaintiff to explain how the exception can be said to apply in the present case, specifically as to how the disclosure of the disputed materials can “fall within the ‘trend of advice doctrine’” (§17 P Skel). Indeed, there is simply no evidence that any compilation or selection exercise was in fact carried out. In fact, this assertion made in P Skel is not borne out by Lai 2^nd; clearly these are questions of fact and such factual matters cannot merely be advanced by way of legal submission.

(3) Second, at most, the plaintiff relies on the fact that instant messages were sent or forwarded to lawyers on ‘Signal’. However, the “general rule [remains] that non-privileged documents do not, without more, acquire privilege simply because they are copied by a solicitor for purposes of an action. A non-privileged original document handed to a solicitor for purposes of an action and not copied would seem to be even more remote from any sustainable claim to privilege”: Wong Wai Keung (ibid), §38(1), citing Ventouris v Mountain [1991] WLR 607, at 616F per Bingham LJ (as he then was).

(4) Third, (again like the plaintiff in Wong Wai Keung (ibid)), “there is no suggestion by the plaintiff that the Disputed Materials are documents collected, selected, or compiled by the plaintiff’s legal representatives/advisors” (Wong Wai Keung, §38(2)). Indeed, “the ratio of [Lyell v Kennedy] is … that where the selection of documents which a solicitor has copied or assembled betrays the trend of the advice which he is giving the client the documents are privileged” (Emphasis added): Ventouris v Mountain (supra), 615F. Hence, an exchange of messages clearly cannot fall under the Lyell exception.

(5) Accordingly, any such general and unsubstantiated reliance on the Lyell exception by the plaintiff must be rejected.

34.  The plaintiff also relies on the common interest privilege (§§8, 16(3) P Skel). However, the “[c]ommon interest privilege does not enable a claim for privilege to be made when previously none was available because it is adjunct to legal advice privilege and litigation privilege, not a separate head of privilege”: Phipson on Evidence (supra) §24-09.

(1) Hence, in order to invoke common interest privilege, the plaintiff needs to first establish that the communications between the plaintiff and other members of the NSL team who are not lawyers are protected by LPP. As mentioned above, it is difficult to see how the communications between the plaintiff and these persons would attract LPP in the first place. In this regard, the observations in paragraphs 20 to 27 above would also apply.

(2) Nor does the plaintiff suggest that any privileged documents were passed to the other members of the NSL team. In any event, no privilege could be attached to such pre-existing documents which were created before the arrest and search operation. In Citic Pacific Ltd v Secretary for Justice (No 2) [2015] 4 HKLRD 20, it was held that “raw material (viz original documents which come into existence during the course of the transaction or event, not created for the purpose of legal advice) is not protected by LPP” (§42) and “copies of such raw material are not protected by privilege even though such copies were forwarded to or made by a solicitor for litigious purposes” (§43).

C. JM CLAIMS

C1. Relevant legal principles on JM

35.  The meaning of JM under section 82 of the IGCO is as follows:

“Meaning of journalistic material

(1) Subject to subsection (2), in this Part journalistic material (新聞材料) means any material acquired or created for the purposes of journalism.

(2) Material is only journalistic material for the purposes of this Part if it is in the possession of a person who acquired or created it for the purposes of journalism.

(3) A person who receives material from someone who intends that the recipient shall use it for the purposes of journalism is to be taken to have acquired it for those purposes.”

36.  In A v Commissioner of Police (supra), §26, Alex Lee J held that the mere fact that the material is in possession of a journalist is not determinative of its nature, nor is the form in which the material is published. Among others, in order to constitute JM, the speech/article prepared for the purpose of publication should be directed to informing public debate and on other matters of public interest.

C2. Analysis on JM Claims

37.  First, as submitted by the Commissioner, it would appear from P Skel that the plaintiff has given up on making good his JM Claims. No explanation or argument has been proffered in all of the 2 paragraphs in P Skel dealing with JM (§§19 & 20) as to why the disputed JM materials constitute JM as alleged. Instead, on the basis that “there was suspected JM” (but without proving the same), the plaintiff then contended that “the burden was on the party seeking disclosure [of JM] … to engage a process with more procedural safeguards” (§§19 & 20 P Skel). This concerns the balancing exercise in ordering production or seizure of JM, not the determination as to whether certain materials constitute JM in the first place. I agree that such contention is irrelevant to the determination of the JM Claims under the Protocol. The issue here is, simply, whether those materials are JM or not. This is because it is common ground that the 2020 search warrant underlying the search and seizure of the two iPhones did not cover JM. Matters as to “alternative procedure” or “procedural safeguards” for the search and seizure of JM (if any) within the two iPhones are separate issues in the judicial review proceedings in HCAL 738/2022.

38.  In any event, even under the “alternative procedure” with “procedural safeguards” under the IGCO, section 85(6) thereof provides that: “Subject to subsection (7), it shall be a term of any warrant issued under this section that a person who seizes journalistic material pursuant to the warrant shall seal the material upon seizure and shall hold the sealed material until otherwise authorized or required under section 87” (Emphasis added). In other words, only actual JM would be sealed for further disposal, not materials merely “known or suspected” to be JM.

39.  The above analysis is sufficient to dispose of the plaintiff’s half-baked attempt to assert the JM Claims over the Seized Materials.

40.  Second, insofar as the plaintiff seeks to rely on what he said about the disputed JM materials in Lai 2^nd, they are clearly deficient:

(1) As mentioned above, paragraph 11(b) of the Protocol requires the plaintiff to specify in his affidavit and submissions “the special basis or bases and the full factual context upon which the Disputed JM Materials were said to constitute JM”. However, in Lai 2^nd, the plaintiff has only supplied generic descriptions, citing the Commissioner’s summons dated 21 July 2022 (which raised separate issues) as an excuse. Apart from a one-line circular description under each category, there is a complete (if not deliberate) lack of particulars on the JM Claims. There is no information on, for example, the circumstances in which the relevant materials were created or the nature of the publication (whether they were local news, commentaries or commercial advertisements etc). This is particularly worrying since JM, by definition, does not command the same level of confidentiality or sensitivity as LPP. Hence, if the plaintiff were serious about his JM Claims, one would have expected that he should have been able to condescend upon proper particulars, having been given more than sufficient opportunity to do so.

(2) Whilst the plaintiff attempted to categorise the disputed JM materials, the categories are no more than self-serving assertions such as “communications for the purposes of publication and/or journalism within the Next Media Group”. The purported descriptions under each category are equally unhelpful. Many of them simply mirror the corresponding category, for example: “Discussions for the purpose of publications by Next Media” or even “self-explanatory”. I agree that such categorisation/descriptions are wholly deficient and provide no meaningful guidance on what the disputed JM materials might include.

(3) Paragraphs 9 to 14 of Chan Yuk Fung’s Affirmation do not assist the plaintiff. As the plaintiff himself pointed out at §24 Lai 2^nd, the contents of Chan’s Affirmation are “just a glimpse of the extent of [the plaintiff’s] interest in journalistic affairs”. At best, they only provide “the factual background to why there would be objective suspicion of [the plaintiff] being in possession of JM” and do not contain particulars or factual context of the disputed JM materials in question.

(4) As Alex Lee J held in A v Commissioner of Police (supra), §26, the mere fact that the material is in possession of a journalist is not determinative of its nature, nor is the form in which the material is published. One has to look at the purpose of the creation and acquisition of the material in question and the intention of the conveyor (if applicable). As the plaintiff himself admits, rather cryptically, “I use my mobile phones for a number of things.” (§25 Lai 2^nd). In the absence of proper evidence on the factual context for the particular materials subject to claim, it is impossible that the plaintiff’s JM Claims can be made out. It would indeed be unfair and impracticable to require the Commissioner to respond to the plaintiff’s empty and hollow JM claims in any meaningful manner.

41.  Indeed, in §23 of Lai 2^nd, the plaintiff merely states that “the various categories … illustrate the likelihood of such content being covered by the broad definition of JM” (Emphasis added). And at §36 of P Reply Skel, the plaintiff frankly admitted that: “P has, at §23 of [Lai 2^nd], set out a table, categorised the suspected JM in 8 categories, and provided descriptions for each category” (Original emphasis). This is simply not good enough for the purpose of the Protocol.

42.  In view of the above, I agree that the plaintiff has singularly failed to discharge his duty of making good his JM Claims, and the JM Claims fall to be dismissed in limine.

43.  Given my view as set out above, it is strictly not necessary for the court to further rule on the Commissioner’s secondary argument, namely, that the disputed JM materials are caught by the “fraud exception”, in that they came into existence as part of the criminal conduct: Citic Pacific Ltd v Secretary for Justice [2012] 2 HKLRD 701, §79. The Commissioner’s primary position is that no resort to this exception is necessary at all, given the state of the evidence before the court.

44.  However, on the Commissioner’s secondary argument, I tend to agree with the plaintiff’s submission that in the present proceedings, it would be dangerous, and perhaps even unfair, for the court to rely on the charges laid by the prosecution, which are yet to be tried, to hold that the Commissioner could successfully establish the “fraud exception”.

D. CONCLUSION

45.  For the reasons set out above, save for items 53, 59 to 60, and 66 to 68, I hold that the plaintiff is unable to make good his LPP Claims and JM Claims. Accordingly, the Remaining LPP Claims and the JM Claims are dismissed.

46.  I direct that the Commissioner shall be at liberty to inspect, extract and/or otherwise access or use for investigation any part of the disputed materials under the LPP Claims and the JM Claims (except items 53, 59 to 60, and 66 to 68).

47.  I order that the costs of the plaintiff’s claims of LPP and JM over the Seized Materials be paid by the plaintiff to the Commissioner, such costs are to be taxed if not agreed (with a Certificate for 3 Counsel).

48.  The above order as to costs is nisi and shall become absolute in the absence of any application within 21 days to vary the same.

49.  Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.