ANGELA CHEN v. WAI WAI CHEN AND OTHERS

HCAP 10/2020

[2026] HKCFI 1584

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 10 OF 2020

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DECISION

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INTRODUCTION

1.  This probate action concerns the estate of the late Madam Yang Foo-Oi.  The plaintiff and the defendant are her two daughters.  There have been a number of interlocutory applications taken out since the action was commenced in 2020.  As in the previous decisions, I shall call the parties by their first names, Angela (the plaintiff)  and Vivien (the defendant), and the deceased “Mother”. I shall call the late Dr Chen Din Hwa, the father of Angela and Vivien, “Father” below.  Dr Chen was the founder of the Nan Fung group. 

2.  In this action, Angela seeks to propound the will executed by Mother on 15 February 2008 (“the 2008 will”)  which left all her assets to Angela and appointed her as the sole executrix.

3.  Vivien, on the other hand, seeks to propound an earlier will made by Mother dated 27 October 2004 (“the 2004 will”)  under which there would be an equal division of assets between the two daughters, and both of them would be appointed as co-executrices.

4.  For the background of the action and a broad overview of the parties’ pleaded cases, see, eg, the decision of Wilson Chan J at [2024] HKCFI 962, paras 7 to 24.

5.  This is the decision on the summons dated 31 March 2025 taken out by Vivien for specific discovery against (1)  Angela, (2)  Mrs Mabel Lui (the 1^st respondent), a solicitor formerly with Dibb Lupton Alsop, now DLA Piper, and (3)  DLA Piper Hong Kong (the 2^nd respondent), the firm of solicitors now acting for Angela.

6.  The documents sought relate to the following four documents signed by Mother:

(1)  a statement entitled “楊福和之陳述” dated 19 November 2005 (“the 2005 Statement”);

(2)  a trust deed dated 26 June 2008 (“the Trust Deed”);

(3)  a general power of attorney dated the same date (“the GPOA”); and

(4)  a statement entitled “聲明” and concerning the 2008 will dated 17 September 2008 (“the Will Declaration”).

7.  These four documents have earlier been disclosed by Angela in this action.  In terms of timing, the 2005 Statement was signed before the 2008 will whereas the other three documents were signed within six to seven months after the will.  In terms of content, in the 2005 Statement, it was recorded, among other things, that Mother was upset in an incident in September 2005 which concerned an inspection of flats at 80 Robinson Road and she scolded Vivien.  According to the terms of the GPOA, Mother appointed Angela as her attorney under the Power of Attorney Ordinance, Cap 31.  According to the terms of the Trust Deed, Mother appointed Angela as her trustee to deal with her properties.  In the Will Declaration, Mother explained why she disinherited Vivien in the 2008 will. 

8.  Vivien is not privy to these four documents and has no personal knowledge as to how they came into existence. 

9.  According to Angela’s case, lawyers were instructed for the preparation of these four documents.  In fact, more than one law firm was engaged in respect of each of these documents.  For instance, Mabel Lui was asked by Mother (through Angela)  to prepare the 2005 Statement, but at the same time Angela instructed Mr Anthony Poon, then of Baker & McKenzie, as her own lawyer to consider and give comments on the drafts. Similarly, on the instruction of Angela, drafts of the Trust Deed and the GPOA were prepared by Mr Wu Wing Kit of Fred Kan & Co (who also attended to the execution of the final documents), and were later reviewed and commented on by Mr David Wong of Wong, Hui & Co. 

10.  Put broadly, Vivien now seeks discovery of (1)  earlier drafts of the four documents, and (2)  in respect of the 2005 Statement, correspondence involving Mother, Angela and the lawyers involved in the preparation of the document.

11.  The application is made under Order 24 of the Rules of the High Court.

12.  I record here a number of developments after the application was made.

(1)  Angela made some voluntary disclosure in her affidavit evidence.

(2)  In light of that, Vivien has since revised the wording of the order sought.  No order is now sought against DLA Piper, the 2^nd respondent.

(3)  Separately, it appears that Vivien is no longer seeking any order asked for in paras 8 to 9 of her summons in which discovery is sought of an unredacted version of the letter from Clifford Chance to Wong Shum & Co dated 18 November 2014. 

(4)  By her letter dated 2 April 2025, Mabel Lui, the 1^st respondent, confirmed that she would take a neutral stance in the application.

13.  The application turns on, first, whether discovery should be made under the well-established principles governing specific discovery and, second, whether the drafts of the four documents and the lawyers’ correspondence in relation to the 2005 Statement are protected by legal advice privilege which can be asserted by Angela, with the result that she cannot be compelled to disclose them.

14.  I consider that the logical sequence to deal with the application is to first consider the general discovery principles. This is because if discovery is not warranted under those principles, for example because discovery is not necessary for the fair disposal of the action, no discovery order should be made.  That will be the end of the matter.  But, if the documents are discoverable, the court should then consider whether legal advice privilege applies to the documents sought.  If it does, that provides a complete and absolute defence to the discovery request.  Discovery should therefore be refused for that reason.

15.  Angela is represented by Mr Benjamin Yu, SC, Mr Bernard Man, SC, leading Mr Keith Lam and Mr Danny Tang.  Vivien is represented by Mr Paul Shieh, SC, Mr Johnny Ma, SC, leading Mr Tom Ng.  Both Mabel Lui and DLA Piper act in person.  The latter is represented by Mr Harris Chan, a partner of the firm.

ANGELA’S CASE

16.  I first give a brief outline of those parts of Angela’s case which are presently relevant.  The relevant time span is from 2003 to 2008. 

The deterioration of the relationship between Mother and Vivien

17.  It is alleged that during this period the relationship between Mother and Vivien had deteriorated. 

18.  The background is that it was Father’s intention that there should be parity between Angela and Vivien in the distribution of his wealth.  This has been referred to as “the Equality Principle”.  In the 2004 will, Mother adopted the Equality Principle.

19.  Later, Mother discovered that Vivien had tried to obtain for herself more assets from Father through inappropriate or improper means, which disturbed the equality of the asset distribution amongst Angela and Vivien. 

(1)  Between around April 2003 and early 2006, negotiations took place between Angela and Vivien with a view to entering into a formal agreement which implemented the Equality Principle.  This is known as “the 50/50 Agreement”.  But the negotiations broke down.  Mother was disappointed with Vivien. 

(2)  Since January 2004, Father approved of proposals which provided for an equal distribution of his wealth inter vivos to Mother, Angela and Vivien.  Under one of these proposals which is known as “Proposal A”, a number of units in 80 Robinson Road were to be transferred to Mother.  However, on 21 September 2005, she was refused entry when she and Angela went to inspect the units.  Mother believed that Vivien was responsible for that.

20.  In her pleadings, Angela refers to para 15 of the 2005 Statement as evidence of the 80 Robinson Road incident.  The paragraph read:

“今年9月，我與慧芳[ie Angela]不獲准進入羅便臣道80號睇樓，我很生氣，並駡慧慧[ie Vivien]。我說香港的資產慧芳也有一半，為什麼不能看？她說不知道我們去睇樓，有高級職員才知道香港的賬慧芳不能看；但她始終不承認是她不要慧芳管，說是爸爸的主意。我問慧慧：「難道爸爸的情況現在還可以提出這樣的一個建議嗎？」她說不知，哭著說我冤枉她，偏心慧芳。慧慧又向我說叫慧芳不要“攪攪震”，公司今年賺了35億，慧芳也有一半。我的理解是慧芳佔南豐集團 (即陳氏控股)  一半，因為一直以來慧慧都說陳氏控股是與慧芳一人一半，從不會少。”

The post-will documents

21.  It is further Angela’s case that after the making of the 2008 will, Mother executed a number of legal or formal documents which show that Mother had the testamentary capacity to make the will, and that she had knowledge and approval of it.  These post-will documents include the Trust Deed and the Will Declaration.  (Angela does not rely on the GPOA for this purpose.)

22.  As regards the Trust Deed, the following parts are relevant:

“於本日前，陳太已訂立遺囑 (“該遺囑”)。根據該遺囑，陳太將該資產贈予慧芳。” (para (2)  in recital)

“陳太特別聲明，慧芳是她遺囑的唯一受益人，有權繼承該資產或其相關部份。” (clause 3)

23.  The Will Declaration is a short document. Dr Ben Cheung, Mother’s psychiatrist at the time, is stated to be the witness.  I reproduce the content in full:

“我，陳楊福娥，又名陳楊福和，香港身份證號碼 [deleted] 持有人，於2008年2月15日訂立了遺囑 (副本見附件)，在自願及沒有受到任何人的影響下，將我的全部遺產，留給大女兒陳慧芳。

我沒有任何遺產留給我丈夫陳廷驊，因為他本身坐擁龐大的財產，且年事已高，並精神出現問題。

我沒有任何遺產留給我的小女兒陳慧慧，因為她曾多次向我表示不要我的遺產。”

24.  The above should serve as a sufficient outline of Angela’s case for determining the relevance and necessity of the documents which Vivien now seeks.  In the next section, when setting out the basis of Vivien’s application, I shall also set out the involvement of the lawyers as regards the four documents in more detail.  That is necessary for the purpose of determining the issue of legal advice privilege.

THE APPLICATION

25.  It is worth repeating that Vivien has no personal knowledge as to how the 2005 Statement, the Trust Deed, the GPOA and the Will Declaration were prepared and signed by Mother.  What I set out below is a recount of Angela’s case based on the witness statements and the evidence filed on her behalf in this action.  It is based on such case that Vivien mounts her discovery application.

The 2005 Statement

26.  According to Mabel Lui’s witness statement, in late October 2005, she was asked by Mother (through Angela)  to draft a statement for her.  Mother had wanted to make a statement to record certain events.  Mabel Lui took instructions from Mother on 30 October 2005.  She took down the points in a handwritten note (“the Handwritten Note”).  Afterwards, she tidied up those notes and drafted the 2005 Statement, which was subsequently signed by Mother on 19 November 2005. 

27.  Vivien points out that the Handwritten Note and the 2005 Statement are not identical.  Some of the matters stated in the 2005 Statement are not found in the Handwritten Note.  Conversely, some contents of the Handwritten Note did not find their way into the 2005 Statement. Vivien therefore says that there must be (1)  drafts of the 2005 Statement which were prepared by Mabel Lui, and (2)  communications between Mabel Lui, Dibb Lupton Alsop, Angela, and Mother relating to the drawing up of the Handwritten Note, drafts of the 2005 Statement and the 2005 Statement itself.  These are broadly the two categories of documents sought by Vivien in her summons and are referred to in this application as “the Relevant Documents”.

28.  Before the issue of the summons, Angela declined to give discovery.  By her solicitors’ letter dated 28 February 2005, Angela stated that Mabel Lui was acting as Mother’s solicitor in relation to the 2005 Statement, and Angela claimed legal professional privilege over the documents, which she asserted on behalf of Mother’s estate, in her capacity as the sole executrix under the 2008 will. 

29.  After the summons was taken out, Angela decided to make voluntary disclosure “purely for the purpose of avoiding unnecessary argument and for saving time and costs”.  That was done by way of the affidavits made by Angela and Harris Chan.  Six documents were disclosed, including emails attaching drafts of the 2005 Statement and undated drafts of the 2005 Statement (collectively, “the disclosed documents”).   

30.  The affidavit evidence also reveals the following matters.

31.  First, as regards Mabel Lui. 

(1)  At the relevant time, she was with Dibb Lupton Alsop, and she kept a general paper file for all her work for Angela and Mother concerning their personal assets, including the preparation of the 2005 Statement.  The file is referred to as “the Mabel Lui General File” in the affidavit evidence.  Mabel Lui left the firm in 2014.  At that time, at the instruction of Angela, she took with her all her files and Mother’s files.  She eventually returned the Mabel Lui General File to DLA Piper in February 2025. 

(2)  The disclosed documents are documents found in the Mabel Lui General File.

(3)  Mabel Lui informed Harris Chan that she does not retain any documents falling within the scope of the Relevant Documents.

32.  Second, as regards Anthony Poon.

(1)  Angela instructed Anthony Poon, then partner of Baker & McKenzie, to consider and comment on the drafts of the 2005 Statement as her solicitor. 

(2)  Anthony Poon informed Harris Chan that he no longer has in his possession any document falling within the scope of the Relevant Documents.

33.  Third, as regards Baker & McKenzie.  Angela has not made enquiries with the firm to see whether they still have documents falling within the Relevant Documents, given the long lapse of time (of 20 years)  and given that it is unlikely that any documents that are in possession of Baker & McKenzie would not be kept in the Mabel Lui General File.

34.  Fourth, as regards one of the disclosed documents which is produced as exhibit “CHW-35”.

(1)  It is an undated draft of the 2005 Statement marked with manuscript comments. 

(2)  On the first page, in the top right-hand corner, it was handwritten “draft statement from Anthony”.  According to Mabel Lui, this draft was likely a draft received by her from Anthony Poon.

(3)  The manuscript comments contained references to several riders, which have not been included in the exhibit or otherwise disclosed by Angela.  They are referred to as “the Missing Riders” in this application.

(4)  By letter dated 30 July 2025 to Vivien’s solicitors, Mabel Lui confirmed that the manuscript comments were made by her, not Anthony Poon, and that the Missing Riders could not be located “in the file”.

(5)  By letter dated 30 July 2025, DLA Piper confirmed that they had further reviewed the Mabel Lui General File and could not find the Missing Riders there.

35.  The following confirmations have been made by or on behalf of Angela:

(1)  Angela has confirmed on oath that the disclosed documents are the only documents now in her possession, custody or power falling within the scope of the Relevant Documents.

(2)  Harris Chan has confirmed on oath that DLA Piper do not have in their possession, custody or power any document within the scope of the Relevant Documents beyond the scope of the disclosed documents.

(3)  Harris Chan has made clear in his affirmation that the voluntary disclosure does not include what he calls “the Excepted Documents”, if any existed.  They are (a)  drafts of the 2005 Statement that are or were in the possession of Anthony Poon and Baker & McKenzie, which were not sent to them by Mabel Lui and were not sent to Mabel Lui, and (b)  correspondence involving Angela and her lawyers.

36.  Mabel Lui has not made any affidavit to confirm what she told Harris Chan (see para 31 above)  or what she stated in her letter concerning the Missing Riders (see para 34(4)  above).

37.  Notwithstanding the above confirmations, as against Angela, Vivien now seeks an order that she file a further affirmation to depose to the Relevant Documents, including in particular the Excepted Documents and the Missing Riders, in her possession, custody or power.  Vivien’s main complaint is that Angela ought to have approached Baker & McKenzie to see whether they still keep any of the Relevant Documents but she has not done so.  She should therefore be ordered to make a further affirmation after making the enquiries.  The other complaint is that as regards the Missing Riders, it remains unknown from the reply of Mabel Lui and that of DLA Piper whether they might have been kept by Mabel Lui and/or Angela somewhere else other than the mentioned files.

38.  As against Mabel Lui, Vivien asks for an order that she file an affirmation to depose to the Relevant Documents in her possession, custody or power, given that she has to date not made any affirmation to that effect and given the ambiguity in her reply concerning the Missing Riders.

39.  Vivien’s application against Angela is governed by Order 24, rule 7.  Mabel Lui being a non-party, Vivien’s application against her is governed by Order 24, rule 7A(2).

40.  Angela further opposes the application on the ground that the Relevant Documents are protected by legal advice privilege belonging to either herself or Mother.

41.  As regards the further ground, it should be uncontroversial that in respect of the 2005 Statement:

(1)  Mabel Lui acted for Mother; and

(2)  Anthony Poon acted for Angela.

The Trust Deed, the GPOA and the Will Declaration

42.  Wu Wing Kit, then of Fred Kan & Co, made a witness statement on behalf of Angela in this action.  According to his statement, he had been advising and representing Angela since 2006.  In around 2008, Angela instructed him to assist her in the intended mental health proceedings concerning Father.  The papers for those proceedings were jointly prepared and reviewed by Fred Kan & Co and Wong, Hui & Co. 

43.  At about the same time, Wu Wing Kit was involved in preparing the Trust Deed and the GPOA.  This is what he said in his witness statement about his involvement in these two documents:

“24. In or around June 2008, I received instructions from Angela, which was likely to be over the phone, that Madam Yang intended to execute a general power of attorney and trust deed so that Angela could handle matters on her behalf. I thus proceeded to prepare those documents with the assistance of Ms. Carmen Chan.

…

26. On this occasion, after the following documents were prepared by [Fred Kan & Co], they were sent to Mr. David Wong … for his comments and review:-

…

26.2. The draft 26 June GPOA (the “Draft 26 June GPOA”); and

26.3. The draft Trust Deed (the “Draft Trust Deed”)

(collectively, the “26 June Documents”).” (underline added)

44.  David Wong, of Wong Hui & Co, made a witness statement for Angela in this action.  According to his statement, he was introduced to Angela in 2007 through a mutual friend.  During their first meeting, Angela said that she wanted to find a solicitor to represent Mother in some intended mental health proceedings concerning Father.  Later, Angela asked David Wong to play a supportive role in reviewing draft documents prepared by Fred Kan & Co and Wong Shum & Co from time to time in relation to the intended mental health proceedings.  Those documents would include drafts of the Trust Deed, the GPOA and the Will Declaration.

45.  This is what David Wong said in his witness statement:

“8. So that I would become more familiar with the background of the matter before I was to meet with and formally act from Madam Yang, Angela asked me to play a supportive role in reviewing certain draft documents prepared by her appointed solicitors Messrs. Fred Kan & Co (“FKC”)  and Messrs. Wong Shum & Co (“WSC”)  from time to time and meeting with Counsel in relation to the intended MIP Proceedings.

9. In such a supportive role, I had reviewed and commented on the following draft documents that were eventually signed by Madam Yang after they were finalized by Angela’s team of lawyers :-

…

9.2 A General Power of Attorney (GPOA)  dated 26 June 2008 pursuant to section 7 of the Powers of Attorney Ordinance (Cap. 31)  (the “GPOA”);

9.3 A Chinese trust deed (信託契約)  dated 26 June 2008 appointing Angela as trustee of Madam Yang’s assets described in Chinese as 信託契約 (the “Trust Deed”); and

9.4 A Chinese declaration dated 17 September 2008 for Madam Yang to reaffirm her will dated 15 February 2008 (the “2008 Will”)  and her testamentary wishes described in Chinese as聲明 (the “Will Declaration”).”

46.  David Wong described his role in relation to the Trust Deed and the GPOA as follows:

“29. As explained in paragraph 8 above, I was asked by Angela to assist in a supportive role in anticipation of my firm acting for Madam Yang as the 2^nd Applicant with myself as the partner in charge in the Intended MIP Proceedings. Following the 1^st Meeting, and upon Angela’s instructions, the following documents were sent to me by FKC for my comments and review :-

…

29.2 The draft GPOA; and

29.3 The draft Trust Deed to which a copy of the 2008 Will was said to be annexed.

…

30. Upon review, my suggested amendments would then be circulated by my secretary on my behalf back to FKC (occasionally with Angela’s assistant copied)  and/or Angela directly. The drafts were sent to Angela and/or her assistants who would assist in the communications between Madam Yang and I as explained in Section C above.” (underline added)

47.  As regards the Will Declaration, David Wong described his involvement as follows:

“33. Upon reading the Will Declaration dated 17 September 2008, I can recall that I was involved in its drafting (in the manner described in paragraphs 8 and 9 above). I believe my involvement would be some time shortly before the date thereof. I was not present when Madam Yang signed the Will Declaration.

34. I cannot now recall if I had taken any instructions from Madam Yang on the same. Since there was a pre-existing draft of the document which was provided to me for review and comment, and I did not handle this execution, it was possible that I did not take instructions from Madam Yang on the same.” (underline added)

48.  Vivien now seeks production of the drafts of the Trust Deed, the GPOA and the Will Declaration referred to in the witness statements of Wu Wing Kit and David Wong, as quoted and underlined above.  These are referred to as the “the Referred Documents” in this application.  This application would be governed by Order 24, rule 10.

49.  Angela resists the application on two broad grounds.  First, the Referred Documents are of no or very limited relevance, and their production is not necessary for a fair disposal of the case or for saving costs.  Second, these drafts are subject to legal advice privilege belonging to Angela and/or Mother.

50.  In respect of the latter ground, as to for whom Wu Wing Kit and David Wong acted in relation to the Trust Deed, the GPOA and the Will Declaration, Angela’s position is that:

(1)  Both Wu Wing Kit and David Wong acted for her in respect of the Trust Deed and the GPOA.

(2)  As regards the Will Declaration, it cannot now be recalled by either Angela or David Wong the identity of the person who had produced the “pre-existing draft” to David Wong for comment.  However, Angela submits that the document could only have been drafted by a lawyer of hers or a lawyer of Mother.

(3)  Angela’s position is that if the draft of the Will Declaration had been drafted by her lawyer, then she would claim privilege in her own right.  However, if the draft had been drafted by Mother’s lawyer, then she would claim privilege on behalf of Mother’s estate. 

(4)  It is however not clear to me whether Angela has a stance as to for whom David Wong acted in respect of the Will Declaration.

51.  On the other hand, Vivian submits that on the basis of the evidence currently before the court, the court is entitled to refuse to accept that David Wong acted for Angela.  And it would appear from the oral evidence given by David Wong in the trial in HCA 1739/2010 held in 2019 that (save for one unrelated occasion)  he had all along only acted for Mother since 2008.

DISCUSSION: ORDER 24

52.  I shall first determine whether discovery should be ordered based on the general principles governing specific discovery.

Legal principles

53.  In respect of the Relevant Documents, the application is made against Angela and Mabel Lui.  Order 24, rules 7, 7A(2)  and 8 are the governing statutory provisions.

54.  The principles are well-established: see, eg, Hong Kong Civil Procedure 2026 at 24/7/2, 24/7A/6 and 24/7A/8.  I would highlight the following.

55.  The applicant needs to make out a prima facie case of existence, possession and relevance.  These are threshold requirements to satisfy in order to establish the jurisdiction to grant discovery.  If satisfied, the court has a discretion whether or not to make the order.  It will not make an order unless the discovery sought is necessary either for disposing fairly of the cause or matter or saving costs.  The burden is on the party objecting to discovery to demonstrate that discovery is not necessary. 

56.  Relevance in the Peruvian Guano sense needs to be established.  A document is relevant if it is reasonable to suppose that it contains information which may, not must, either directly or indirectly enable the party requiring the same either to advance his own case or to damage the case of his adversary, or it is a document which may fairly lead the party to a train of inquiry which may have either of these two consequences. 

57.  Fishing is not allowed.

58.  In any given case, there is likely to be a spectrum of evidential materiality within which documents may fall.  Even where a document is relevant in the Peruvian Guano sense, if its content is such that it is unlikely to contain or yield information of such evidential materiality to the pleaded case, the court is entitled to take the view that it is not necessary for it to be disclosed.  There may be cases where the probative value of a document is considered to be so slight as not to justify the inconvenience of giving discovery: see, eg, Lee Sai Nam v Li Shu Chung HCA 1711/2009, 10 January 2014, paras 49 and 50.

59.  Lastly, discovery should be sensibly controlled and not used as an oppressive weapon pursued without sufficient regard to economy and efficiency of the usefulness of the information which is likely to be gained: see, eg, Billion Lead Investment Ltd v Union Joyce Ltd HCMP 2145/2011, 14 December 2012, para 20.

60.  In respect of the Referred Documents, the order is sought against Angela only.  The governing statutory provisions are Order 24, rules 10 and 13.

61.  The court undertakes a two-stage process. First, the burden is on the party who has referred to the document in question in his pleading, affidavit or witness statement to show good cause why an order for production should not be made.  Second, and independent of the first stage, the burden is on the applicant to show that the order is necessary either for disposing fairly of the case or for saving costs: see Moulin Global Eyecare Holdings Ltd (in liquidation)  v Olivia Lee Sin Mei [2013] 3 HKLRD 72, paras 31 to 35.

The Relevant Documents

62.  In light of the voluntary disclosure made by Angela, the issue which remains with regard to the Relevant Documents is whether the disclosure is adequate without her having made any enquiry with Baker & McKenzie.  If not, she should be compelled to make a further affirmation to depose to the Excepted Documents and the Missing Riders after making proper enquiries with the firm.

63.  I am satisfied that there is a prima facie case of existence of each of the categories of documents listed under the Relevant Documents and that there is a prima facie case that Baker & McKenzie had possession of them:

(1)  Anthony Poon being the lawyer specifically instructed by Angela to consider and comment on the drafts of the 2005 Statement, it is reasonable to expect that there would or could be drafts which were in his possession and in the possession of his firm, Baker & McKenzie.  The question is whether Anthony Poon would or could have worked on drafts which were not communicated with Mabel Lui.  On this question, my observation is that while Anthony Poon and Mabel Lui worked on the preparation of the 2005 Statement during the same time period and they were engaged in some correspondence with each other, the two lawyers appeared to have worked independently of each other as they were serving two different clients.  It therefore follows that there would or could be drafts which were only privy to Anthony Poon – and therefore Baker & McKenzie – but not Mabel Lui.

(2)  Similarly, as Anthony Poon was specifically instructed by Angela in respect of the 2005 Statement, there would or could be correspondence between Angela and Anthony Poon exchanged during the process. And such correspondence would or could have remained in Baker & McKenzie’s files.

(3)  The express references to various riders in the undated draft exhibited under “CHW-35” clearly points to the existence of the Missing Riders.  As the undated draft was expressly marked “draft statement from Anthony” and Anthony Poon was specifically asked to give comments on the drafts, it is possible that Mabel Lui had at some stage sent the manuscript comments to Anthony Poon.  Hence the Missing Riders could have been sent to Anthony Poon and hence Baker & McKenzie.

64.  I am also satisfied that there is a prima facie case that Angela has the power to obtain from Baker & McKenzie the Relevant Documents, which she ought to have exercised but which she did not.

(1)  There can be no doubt that, as client, Angela has the power to make the request.  The issue here is whether it is reasonable for her not to ask for the reasons now put forward on her behalf. 

(2)  I have established above that there is a prima facie case that Baker & McKenzie had in their possession those documents.  For the reason set out in para 63(1)  and (3)  above, I do not agree with Angela’s contention that it is unlikely that any documents that were in possession of Baker & McKenzie would not be kept in the Mabel Lui General File.

(3)  It is true that there has been a long lapse of time since the making of the 2005 Statement.  There is clearly a possibility that Baker & McKenzie had already destroyed the files.  However, the threshold here is a prima facie case.  It is not a high threshold.  As there is also the possibility that the files might not have been destroyed, I am satisfied that there is a prima facie case that the Relevant Documents are still in the possession of Baker & McKenzie. 

(4)  On this last point, I would think that it is a bit difficult for Angela to reconcile the fact that she had approached Anthony Poon asking about the Relevant Documents but not Baker & McKenzie, even though the reasons she now puts forward for not approaching the latter should similarly apply to the former.

65.  As to relevance, Mr Shieh submits that the requirement is clearly satisfied.  Angela is relying on the 2005 Statement to evidence that Mother was upset by the 80 Robinson Road incident and that, among other things, supports her plea that Mother and Vivien’s relationship had deteriorated before the signing of the 2008 will.  Hence, it is submitted that the context surrounding and leading to the drafting and signing of the document is self-evidently relevant and material to the issues in this action.

66.  Furthermore, there are differences between the Handwritten Note and the 2005 Statement.  It is therefore further submitted that the issues as to why and how such differences arose, and whether and if so to what extent Angela participated in giving instructions for the drafting of the 2005 Statement are clearly material.

67.  The rationale for seeking discovery of the Relevant Documents is put this way in the supporting affirmation filed for Angela:

“The Relevant Documents seek to complete the picture and allow the Court to fully understand how the 2005 Statement came about and to properly assess to what extent its contents can be relied upon as reflecting the Deceased’s true wishes and intent.”

68.  In this application, Angela has not made any substantive submission to argue that the requirement of relevance is not satisfied.

69.  Notwithstanding that, there is serious doubt in my mind as to whether relevance in the Peruvian Guano sense is established. 

70.  I do not agree with the submission that the relevance and materiality is self-evident.  It is true that it is self-evident that any earlier drafts of the 2005 Statement and any correspondence between Angela and Anthony Poon about them would relate to the final signed version of the document, and they would therefore in turn relate to an issue which arises in this case.

71.  However, the Peruvian Guano test requires more than that.  It imposes a requirement that the documents sought may enable, or may lead to a train of enquiry to enable, Vivien either to advance her own case or to undermine Angela’s case.  So far, Vivien has failed to articulate how the Relevant Documents would have that effect. 

72.  Vivien seeks to point to the objective fact that the Handwritten Note and the 2005 Statement are not identical.  But it is difficult to see how that fact would help undermine Angela’s case, including the reliability of the contents of the final signed version of the 2005 Statement.  Drafting is an ongoing process.  In fact, it is only natural that there would be differences between different versions produced at different times. 

73.  Mr Yu pointed out at the hearing that there are no material discrepancies on the main points covered in the Handwritten Note and the final version and queried why Vivien would need to see the drafts in order to find out about Angela’s involvement in the process.  I agree with that submission.  It is not a case where Vivien is pointing to (or can point to)  some differences which appear to be contradictory or inconsistent thus raising some suspicion on the circumstances in which the 2005 Statement was prepared or casting doubt on the veracity or reliability of the final version which was signed by Mother.  Vivien is saying nothing of this sort.

74.  Relying on the fact that the Handwritten Note and the 2005 Statement are not identical, Vivien then says that the documents now sought by her would “complete the picture” and would allow the court to “fully understand how the 2005 Statement came about”. To this submission, I should immediately say that the function of specific discovery is not to give the court a complete picture.  Quite to the contrary, it is the function of the judge hearing a specific discovery application to exercise control over the scope of the evidence to be admitted at trial, and to guard against introducing evidence other than that which is relevant, material and of probative value (in other words, necessary evidence). 

75.  Insofar as the communications between Angela and Anthony Poon are concerned, Vivien has not put forward any basis at all to suggest how, if any such communications existed, they would advance her case or undermine Angela’s.  The truth is that Vivien knows nothing about what had been said between Angela and Anthony Poon.  What she is now doing is to try to get hold of documents recording the communications in the hope that they may reveal something unusual, suspicious or improper which would then provide her with a basis to pursue more enquiries or to ask for yet more documents.  That, in my view, is classic fishing. 

76.  For the above reasons, I find that Vivien has failed to establish a prima facie case of relevance in respect of the Relevant Documents.  Discovery should be refused for that reason.  The fact that Angela has made voluntary disclosure does not detract from this conclusion.

77.  If I am wrong on the issue of relevance, I would still refuse discovery as I consider that the Relevant Documents are not necessary for the fair disposal of the action.  The issues surrounding the 2005 Statement is only one of the many issues that arise in this action.  At the trial, the court will hear other evidence on the issue of whether the relationship between Mother and Vivien had deteriorated before the signing of the 2008 will, and for what reasons.  In the overall scheme of things, I consider that how the 2005 Statement came about cannot be said to rank very high in the spectrum of evidential materiality, and their probative value (if any)  is not such as to justify an order of discovery.

78.  For that reason also, I would decline to order discovery of the Relevant Documents.

The Referred Documents

79.  The Referred Documents are drafts of the Trust Deed, the GPOA and the Will Declaration which are referred to in the witness statements of Wu Wing Kit and David Wong.

80.  Vivien’s position is that these documents are self-evidently relevant as they are referred to by Angela’s own witnesses. Furthermore, it is submitted that as Angela is relying on the Trust Deed, the GPOA and the Will Declaration as post-will matters showing Mother’s knowledge and approval of the 2008 will, the evolution of the drafting of the documents would shed light on Mother’s thinking and on whether the documents really reflect Mother’s testamentary capacity and her knowledge and approval of the will. The earlier drafts would shed light on the circumstances surrounding the drafting process and it would show whether the final versions did reflect the views and perception of Mother at the time.

81.  Angela’s stance is that the production of the Referred Documents are not necessary for the purpose of fairly disposing of the case:

(1)  She is not relying on the GPOA to demonstrate Mother’s testamentary capacity or her knowledge and approval.  Hence the earlier draft of the document would not be relevant to any issue in this case.

(2)  The Trust Deed and the Will Declaration are simple documents, containing boiler-plate clauses.  It is difficult to see how earlier drafts of these simple documents would reveal or shed light on Mother’s thinking and perception.

(3)  Vivien has not put forward any basis to suggest that these drafts may have recorded something that negates testamentary capacity and/or knowledge and approval.  As such, this is an attempt to hunt around documents in the hope that they will reveal some improprieties or provide information to pursue more enquiries.  That should not be allowed.

82.  I agree with Angela’s submissions.  I would only add that what is notable about the Trust Deed and the Will Declaration is that they are genuinely very straightforward documents. The Trust Deed is straightforward because its subject matter is straightforward. While I would not necessarily describe its clauses as boiler-plate clauses, most of them are operative clauses which put in effect the trust arrangement.  The Will Declaration is straightforward as it is couched in very simple terms.  The content really speaks for itself.  As such, it is difficult to see how earlier drafts of these two documents would help shed light on Mother’s thinking.  Most critically, Vivien has not put forward any basis to demonstrate how the disclosure of the drafts would have that effect.

83.  For the above reasons, I refuse to order production of the Referred Documents.

Conclusion

84.  In conclusion, the orders now sought by Vivien should be refused and her summons should be dismissed.  It is therefore unnecessary to go on to consider whether Angela can assert legal advice privilege to resist disclosure.  However, I shall do so in case I am wrong in the conclusion which I have just reached.

DISCUSSION: LEGAL ADVICE PRIVILEGE

85.  There are two types of legal professional privilege.  In this application, Angela seeks to assert legal advice privilege in respect of the Excepted Documents and the Referred Documents.  We are therefore not concerned with the other category of privilege, namely litigation privilege.

86.  According to her written submissions, Angela does not appear to be claiming legal advice privilege over the Missing Riders. But it seems to me that in the context of privilege, the Missing Riders should stand on the same footing as the other drafts which come within the Excepted Documents, as they are all drafts (or parts of the drafts)  of legal or formal documents which were eventually signed by Mother.  The discussion below therefore is intended to cover all the sub-categories of the Relevant Documents and the Referred Documents.

87.  The burden is on the person who asserts privilege to establish it.  I shall therefore recite the arguments made by Angela first.

Angela’s argument

88.  Legal advice privilege is described in Passmore, Privilege (5^th ed)  at para 2-003 as follows:

“… one can say that the starting point for what must be established for advice privilege to apply is that we are concerned with:

● a communication, whether written or oral, that is made:

● between a client and his lawyer, where the lawyer is acting in the course of their professional relationship and within the scope of the lawyer’s professional duties;

● under conditions of confidentiality; and

●  for the dominant purpose of enabling the client to seek, or the lawyer to give, legal advice or assistance in a relevant legal context.”

89.  Further, it should be uncontroversial that legal advice privilege is not confined to the communications themselves but also extends to other materials which “evidence” the substance of such communications: see, eg, Three Rivers District Council v Governor and Company of the Bank of England (No 5) [2003] QB 1556, paras 19 and 21.

90.  Applying the above principles, Angela contends that the Excepted Documents and the Referred Documents are privileged from production because the very nature of these documents is such that they were communications where Angela sought legal advice from her lawyers, or where Angela’s lawyers gave her legal advice, as to the making of and the contents and effect of the 2005 Statement, the Trust Deed, the GPOA and the Will Declaration, or were documents which contained such advice. 

91.  As we shall see shortly below, Vivien’s position is that a person, when claiming privilege, is subject to certain stringent evidential requirements concerning the contents of the document in question.  On the other hand, Mr Yu submits that for the drafts and correspondence in question to be privileged, all that Angela is required to show is that they are confidential documents created by a lawyer in a professional capacity in which a lawyer is engaged in providing legal advice.  The claim for privilege does not turn on evidence concerning the contents of the document, but only that the lawyer was acting in his professional capacity.  Mr Yu cites the following authorities in support: Balabel v Air India [1988] 1 Ch 317, 330D, 332D-E; Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610, paras 59, 60 and 62; Thanki, The Law of Privilege at paras 2.47 to 2.52.

Vivien’s argument

92.  Vivien’s position is that Angela’s claim for privilege should fail because it is not made out on her own evidence.

93.  There are two limbs to Vivien’s argument.

94.  First, Mr Shieh submits that there are specific requirements for the evidence to be put in by a party claiming privilege.  The evidence, which would invariably come in the form of affidavit evidence, should be specific enough to show something of the deponent’s analysis of the documents.  The court would be particularly careful in examining the evidence because a party claiming privilege or their lawyers are effectively judges in their own cause, subject (ultimately)  to the court’s power to inspect the documents.  

95.  Mr Shieh relies on what Beatson J said in West London Pipeline and Storage Ltd v Total UK Ltd [2008] 2 CLC 258, paras 53 and 86:

“53. Thus, affidavits claiming privilege whether sworn by the legal advisers to the party claiming privilege as is often the case, or, as in this case, by a Director of the party, 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. …

…

86. …

(1)  The burden of proof is on the party claiming privilege to establish it … A claim for privilege is an unusual claim in the sense that the party claiming privilege and that party’s legal advisers are, subject to the power of the court to inspect the documents, the judges in their or their own client’s cause. Because of this, the court must be particularly careful to consider how the claim for privilege is made out and affidavits should be as specific as possible without making disclosure of the very matters that the claim for privilege is designed to protect …” (underline added)

96.  Vivien says that Angela has failed to meet the evidential requirement.  This is clearly the case with respect to the Relevant Documents because no enquiry has ever been made by Angela with Baker & McKenzie, and she has not seen those documents which may be in the possession of the firm.  One cannot assume that there must be some sort of legal professional privilege just because lawyers were involved and there was an assertion of the privilege. Indeed, without knowing what the documents are, there is simply insufficient basis for Angela to substantiate a privilege claim.  Angela’s claim in respect of the Excepted Documents is merely a bald and premature assertion and is not made good in light of the paucity of evidence placed before the court.

97.  In addition to West London, Mr Shieh relies on a number of authorities to make good the above point.  Among them, I consider the following cases to be more relevant and shall deal with them below – the English decision of Rawlinson and Hunter Trustees SA v Akers [2014] EWCA Civ 136 and the Hong Kong case of Yusuf Abdulla Yusuf Akbar Alireza v Fleet Overseas (New Zealand)  Ltd [2020] HKCFI 2802.

98.  Second, where a party is claiming privilege over an earlier draft of a document in respect of which a lawyer is engaged, in order to attract protection, there is a need to show that disclosure of such a draft will or will tend to reveal the privileged advice given by the lawyer to the client.  Mr Shieh refers to the Australian case of AWB Ltd v Cole (2006)  152 FCR 382 in support.

99.  It is recognised that, as an adjunct to the legal advice privilege, protection against disclosure does not only apply to the actual communication between client and lawyer but has been extended to cover documents that record confidential legal advice or confidential legal work.  The rationale is that while it is the communication that is privileged, it does not mean that material that is not literally a communication is never protected.  Such material would be protected if the disclosure of it will, or will tend to, review the privileged communication.  Where that is the case, in order to protect the underlying communication, the document having that effect would also be protected from disclosure: AWB at paras 127 to 128.

100.  Therefore, where a person is claiming this adjunct privilege, it is for him to produce sufficient evidence to enable the court to infer that disclosure of the draft in question will enable inferences to be drawn as to the legal advice given.  The inference of fact must have a definite and reasonable foundation in the contents of the document.  It would not be sufficient that the document as a whole, or particular statements within it, cause a reader to wonder or speculate whether legal advice had been obtained and what was the substance of that advice: AWB at para 133.

101.  In addition to AWB, Mr Shieh also cites the English decision in Re RBS Rights Issue Litigation [2017] 1 WLR 1991.  The party claiming privilege in that case invoked what is called the “lawyers’ working papers” privilege.  The term “lawyers’ working papers” is understood to include drafts of documents prepared by lawyers: see Thanki at paras 2.47 and 2.49.  It was held, at paras 105 to 107, that the party should demonstrate that the documents should have some attribute or addition such as to betray or at least give a clue as to the trend of advice being given to the client by its lawyer.

102.  Applying the above principles, it is Vivien’s submission that Angela has failed to produce any evidence based on which the court may infer that the disclosure of the draft documents now sought will enable inferences to be drawn as to the legal advice given by the solicitors.  . 

103.  The deficiency is particularly acute in the case of the drafts within the Excepted Documents and the Missing Riders, as Angela has not had sight of them.  There is nothing she can say about the contents of the drafts. 

104.  As for the Referred Documents, all that Angela has said is that Wu Wing Kit and David Wong were acting for her, the drafts were prepared by Wu Wing Kit and an unknown lawyer, which were then reviewed by David Wong.  As such, Angela has failed to produce the necessary evidence to demonstrate that there was indeed advice given by the lawyers to her in the first place.

105.  In summary, whether under the general advice privilege or its adjunct limb, Angela has failed to adduce sufficient evidence to make out the claim for privilege.

The issue

106.  It is worth emphasising at the outset that we are concerned with a very straightforward factual scenario here.  The issue which arises is therefore a narrow one.  We are concerned with the four documents signed by Mother.  In respect of each of those documents, solicitors were instructed to draw up drafts and review them.  The question which I need to determine is, against this factual background, whether the drafts of the four documents and the correspondence among Angela, Mother and their lawyers in respect of the 2005 Statement are protected by legal advice privilege.

107.  The straightforward nature of the present factual scenario is to be contrasted with the facts in many of the cases cited by parties.  As we shall see later, some of the principles which Mr Shieh seeks to extract from the authorities and apply to the present case in fact deal with specific issues which only arise in those cases but not in the present one.

108.  The parties are divided in the proper approach which the court should adopt when determining the privilege issue.  In the discussion below, I shall use the shorthand expressions “the context approach” and “the content approach” to describe the rival approaches put forward by Mr Yu and Mr Shieh.  In gist:

(1)  Mr Yu submits that where the proper legal context is established, the context being that the confidential documents were created by a lawyer in his professional capacity in which he was engaged to give legal advice, that would be sufficient to substantiate a claim of privilege over the documents. 

(2)  On the contrary, Mr Shieh submits that establishing the context is not sufficient, and the person claiming privilege needs to put in proper evidence showing an analysis of the contents of the documents in question.  This evidential burden applies in all cases, including the straightforward factual scenario in the present case.

109.  Having reviewed the authorities cited by the parties, I am of the view that the context approach applies to the present case.  And I reject the submission that the content approach applies universally to all cases in which privilege is asserted, and further reject the submission that the content approach applies to the present case.

110.  I consider that the applicable authorities are Balabel and Three Rivers (No 6) in which the scope of the legal advice privilege is authoritatively stated and explained.  These principles were later applied in Hong Kong by the Court of Appeal in Citic Pacific Ltd v Secretary for Justice (No 2) [2015] 4 HKLRD 20.

111.  As for Mr Shieh’s argument with regard to the adjunct limb of privilege, I am similarly of the view that there is no absolute requirement that a person claiming privilege must adduce evidence in every case to show that disclosure of the draft in question will or will tend to reveal the privileged advice.  The argument is contrary to the decision in Balabel.

Legal principles

112.  In Hong Kong, legal professional privilege is a fundamental right, which is constitutionally entrenched by article 35 of the Basic Law.  It provides that Hong Kong residents shall have the right to confidential legal advice.  The privilege applies to both litigious and non-litigious context.  It is to enable legal advice to be sought and given in confidence. 

113.  The rationale has been explained in this way.  It is necessary in our society that communications between clients and lawyers in which the clients are hoping for the assistance of the lawyers’ legal skills in the management of the clients’ affairs should be secure against the possibility of any scrutiny from others. This has been described as “the rule of law rationale” and has been accepted by our Court of Appeal to also apply in Hong Kong as “it is perfectly consonant with [legal professional privilege] being constitutionally protected to reinforce the rule of law as a core value in a society”: Three Rivers (No 6) at para 34; Citic Pacific at paras 1, 33 to 37.

114.  As to the scope of the privilege, it will be recalled that in order for a communication to attract the privilege, it has to be made for the (dominant)  purpose of enabling the client to seek, or the lawyer to give, legal advice or assistance in a relevant legal context: see the fourth bullet point in para 88 above.  Does it mean that all communications passing between the lawyer and his client on matters within the lawyer’s ordinary business are privileged?  Or is the privilege only conferred on those communications which specifically seek or convey legal advice?

115.  This issue was decided by the English Court of Appeal in Balabel.

116.  In that case, the plaintiffs claimed specific performance of an oral agreement for an underlease allegedly made with the defendant.  The plaintiffs sought discovery of the following documents:

“(1)  Communications between the defendant and its solicitors other than those seeking or giving legal advice. (2)  Drafts, working papers, attendance notes and memoranda of the defendant’s solicitors relating to the proposed new underlease. (3)  Internal communications of the defendant other than those seeking advice from their Indian legal advisers.”

117.  Taylor LJ upheld the defendant’s privilege claim. 

118.  In essence, the rulings are:

(1)  The proposition that privilege extends without limit to all lawyer and client communication upon matters within the ordinary business of a lawyer and referable to that relationship is too wide (331G-H).

(2)  Conversely, the proposition that privilege should be restricted to those communications which specifically seek or convey advice is too narrow (see 332B-C).

(3)  The proper approach is that when considering whether a communication or other document was made for the purposes of legal advice, the purposes have to be construed broadly.  Legal advice is not confined to telling the client what the law is.  It also includes advice as to what should prudently and sensibly be done in the relevant legal context (see 330D-G). 

(4)  The question to ask is whether the communication or document formed part of that necessary exchange of information between lawyer and client of which the object is the giving of legal advice as and when appropriate (see 332C-D). 

(5)  On the facts, the solicitor being retained in a conveyancing transaction provided the relevant legal context for privilege to arise.  The solicitor was employed to make use of his experience and legal skill to ensure that the client steer clear of legal difficulties in the transaction.  Communications passing between the solicitor and the client in the handling of the transaction for that purpose were therefore privileged even if those documents did not expressly incorporate a specific piece of legal advice (see 332D-E).

119.  As regards the points made in (3)  to (5)  above, it is necessary to quote extensively from the judgment:

“… the purpose and scope of the privilege is still to enable legal advice to be sought and given in confidence.  In my judgment, therefore, the test is whether the communication or other document was made confidentially for the purposes of legal advice.  Those purposes have to be construed broadly.  Privilege obviously attaches to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice.  But it does not follow that all other communications between them lack privilege. In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice may be required or appropriate on matters great or small at various stages. There will be a continuum of communication and meetings between the solicitor and client. The negotiations for a lease such as occurred in the present case are only one example. Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach. A letter from the client containing information may end with such words as “please advise me what I should do.”  But, even if it does not, there will usually be implied in the relationship an overall expectation that the solicitor will at each stage, whether asked specifically or not, tender appropriate advice. Moreover, legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context.” (330D-G)  (underline added)

“… As indicated, whether such documents are privileged or not must depend on whether they are part of that necessary exchange of information of which the object is to giving of legal advice as and when appropriate. Accordingly, I agree with the formulation made by Master Munrow in the present case, subject to the additional words which I have placed in brackets. He said:

“Once solicitors are embarked on the conveyancing transaction they are employed to ensure that the client steers clear of legal difficulties, and communications passing in the handling of that transaction are privileged (if their aim is the obtaining of appropriate legal advice)  since the whole handling is experience and legal skill in action and a document uttered during the transaction does not have to incorporate a specific piece of legal advice to obtain that privilege.” ” (332C-E)  (underline added)

120.  The approach of Taylor LJ was endorsed in Three Rivers (No 6).  The concept of “relevant legal context” was elaborated by the House of Lords. 

(1)  Where a lawyer is instructed to carry out a function which necessarily involves the use of his legal skills, the lawyer-client communications are to be regarded as being concerned with obtaining “legal advice”, as the term is to be understood in the broader sense as explained in Balabel: per Lord Rodger at para 60.

(2)  On whether there is a “legal” context, much will depend on whether it is a situation in which it is reasonable for a client to consult the special professional knowledge and skills of a lawyer, so that the lawyer will be able to give the client sound advice as to what he should do, and just as importantly what he should not do, and how to do it: per Baroness Hale at para 62.

(3)  All communications between a solicitor and his client relating to a transaction in which the solicitor has been instructed for the purpose of obtaining legal advice will be privileged, notwithstanding that they do not contain advice on matters of law or construction, provided that they are directly related to the performance by the solicitor of his professional duty as legal adviser of his client: per Lord Carswell at para 111.

(4)  On the facts, Lord Brown found, at para 120, the service provided to the Bank of England by its solicitors to be privileged.  His Lordship said:

“Such assistance to my mind clearly has the character of legal business. It is precisely the sort of professional service for which lawyers are ordinarily employed by virtue of their expertise and experience. … It is, moreover, a service which can only effectively be rendered if the client is candid and forthcoming as to the true facts of his case – the very consideration which justifies the absolute character of legal advice privilege in the first place.”

121.  In Hong Kong, the above approach also applies. In Citic Pacific, the issue before the Court of Appeal was the proper approach to the definition of a “client” in the context of legal advice privilege.  The court declined to follow the approach adopted by the English Court of Appeal in Three Rivers (No 5).  That issue does not arise here.  What is presently relevant is that in the judgment, in the course of discussing the “client” issue, the court considered the scope of the privilege and agreed with what was said in Balabel: see paras 44 and 45.

122.  Later, at para 54, the Court of Appeal added:

“It is meaningless to have a right to confidential legal advice if the protection is confined to communications setting out the legal advice. Lawyers need to have the relevant information from their clients before proper advice can be given. Thus, it is a necessary incidence of the right to confidential legal advice that the whole process is protected by privilege so as to safeguard the confidentiality.” (underline added)

123.  In my view, the content approach advocated by Mr Shieh is inconsistent with the principles explained in Balabel and Three Rivers (No 6). 

124.  What Balabel decides is that in a straightforward situation where a solicitor is engaged to act for a client in respect of a specific transaction (which I shall refer to as “a Balabel scenario” below by way of shorthand expression), that engagement would provide a relevant legal context and, barring any contrary indications (which I shall come back to shortly), would generally attach privilege to all the communications which pass between the solicitor and the client for the purpose of that transaction.  It does not matter that the communications may not contain any express or specific legal advice.  The privilege arises because it is a situation in which it is reasonable for a person to seek the professional assistance of a solicitor to help him organise his affairs insofar as that transaction is concerned.  As explained in the “rule of law” rationale, a person should be able to do so in confidence, and he should be able to be candid and forthcoming when giving instructions to his lawyer, knowing that what passes between them are not disclosable in the future without his consent.

125.  Going back to the content approach, it imposes on the person claiming privilege in all cases an evidential burden to give an analysis of the documents in question in order to demonstrate their privileged nature.  I do not think that there is such a universal requirement. More specifically, in the situation described in the preceding paragraph, the content approach does not apply.  Just like in Balabel, Taylor LJ did not proceed to discuss any evidence regarding contents before he upheld the claim of legal advice privilege.

126.  I refer to the possibility of contrary indications in the discussion above.  In some cases, the evidence may show that the lawyer, when being instructed to act in a transaction, is at the same time also providing other non-legal service to the client, such as commercial advice or administrative assistance.  An example was given in Balabel of a lawyer collecting rent for his client, which was considered to be not relating to “the obtaining of legal advice”: 331F-G.  In those cases, privilege will not attach to communications pertaining to such non-legal service.  There may therefore be a need for the person claiming privilege over those communications which do relate to legal service to adduce proper evidence to show the nature of the service rendered by the lawyer.  The content approach may then apply in those cases.

127.  It follows that I am in general agreement with Mr Yu’s submissions to the extent that the context approach should apply in a Balabel scenario with the result that, barring any contrary indications, the communications would generally be protected, without the need for the person claiming privilege to go into the contents of the individual documents in question in his evidence.

128.  In arriving at the above conclusion, I also draw support from three cases.  The first one is the Hong Kong case of Yau Chiu Wah v Gold Chief Investment Ltd [2003] 3 HKLRD 553.  The second one is Dalleagles Pty Ltd v Australian Securities Commission (1991)  4 WAR 325 (a case not referred to by counsel but cited in AWB)  and the third one is AWB Ltd v Cole (No 5) (2006)  155 FCR 30, a later decision in the AWB saga.  In essence, all these authorities apply Balabel and endorse the view that in the situation described in para 124 above, all the communications would generally be privileged.

129.  Yau Chiu Wah is a case about wasted costs order against solicitors.  It has been recognised that sometimes the solicitor who is the subject matter of the application may be handicapped in presenting his case, including revealing the advice he gave to his client and the instructions he received, because his client refuses to waive privilege: paras 37 to 38.  It is in this context that Ma JA (as his Lordship then was)  made the following remark, at para 43:

“But what is meant by privileged material in the context of solicitor-client communications? Generally, almost anything exchanged in confidence between the solicitor and his client is privileged, providing the solicitor is acting in his professional capacity. In other words, any confidential communications to or from a solicitor in connection with the professional capacity in which a solicitor is engaged (ie giving legal advice)  will generally be privileged. Here, I would refer to the useful commentary on the subject in Hong Kong Civil Procedure 2002, Vol.1 at para.24/5/8 and to the decision of the English Court of Appeal in Balabel v Air India [1988] Ch 317.” (underline added)

130.  I have highlighted the words “almost anything exchanged in confidence” above.  I acknowledge that the scope of legal advice privilege was not the focus of the decision.  However, I consider that the choice of the words, as highlighted, is fully in line with Balabel and supports the proposition that in a relevant legal context, all communications should generally be privileged.

131.  Next, in Dalleagles, Anderson J said that the solicitor-client communication should be regarded as prima facie for the purpose of giving and receiving advice and hence privileged.  His Lordship set out his reasoning in a most perceptive manner, at 332 to 333:

“But anyway, I think it is the case that whenever a lay client gives instructions to a legal practitioner to perform specialist legal services involving the exercise of professional skill, there is imposed on the solicitor a duty to give any advice reasonably necessary to protect the client’s interests in the transaction whether expressly requested or not. … It is not a large step from that position to say that whenever a client gives instructions to his solicitor there is assumed to be a request for advice. In my opinion, discourse between solicitor and client with reference to the transactions covered by those instructions, that is, professional discourse in a professional capacity, should be regarded as prima facie for the purpose of giving legal advice. This would apply to any communication that is on its face a communication of a professional nature from the solicitor to the client or his agent touching the subject matter of the solicitor’s engagement and any communication from the client to the solicitor in connection with the engagement. Only if the rule is applied in that way can the policy of it be carried out and its object practically fulfilled.” (underline added)

132.  Lastly, in AWB (No 5), the following general principle is set out, at para 44(4):

“Where communications take place between a client and his or her independent legal advisers, or between a client’s in-house lawyers and those legal advisers, it may be appropriate to assume that legitimate legal advice was being sought, absent any contrary indications … in the ordinary case of a client consulting a lawyer about a legal problem in uncontroversial circumstances, proof of those facts alone will provide a sufficient basis for a conclusion that legitimate legal advice is being sought or given.” (underline added)

133.  The content approach is plainly contrary to what was said in AWB (No 5), in particular those words underlined above.

134.  It remains for me to deal with the authorities relied on by Mr Shieh in support of the content approach.  I do not think it is necessary to go through them one by one in any great detail save to say the following.

135.  The fact in cases such as West London and Rawlinson and Hunter are a far cry from a Balabel scenario.

136.  The discovery application in West London originated from an explosion at an oil terminal which caused personal injuries and serious damage to properties.  After the explosion, an investigation was conducted by the oil company.  In subsequent civil proceedings, a contractor sought discovery from the oil company materials gathered in the investigation, including interview records and reports made by the accident investigation teams.  The oil company resisted discovery on the ground that the dominant purpose of the investigation was to identify the causes of the explosion so that their solicitors could provide legal advice in connection with the anticipated legal proceedings.  It was in determining the dominant purpose issue that Beatson J laid down the evidential requirements for the contents of the supporting affidavits.

137.  Rawlinson and Hunter is likewise a case on dominant purpose but on different facts.  In fact, the Court of Appeal there cited the evidential requirements in West London.  It is plain from para 13 of the judgment that, similar to what Beatson J was doing in West London, the Court of Appeal was applying the evidential requirements to resolve the issue of dominant purpose.

138.  Insofar as Mr Shieh is also relying on AWB in support of the content approach, I should say that, similarly, it is plain from the judgment that in that case the court was applying the evidential requirements to determine the dominant purpose of the document in question.  There was no suggestion that these requirements apply universally in all cases.  The document in question was called “Ex 665”.  The court concluded in paras 123 and 124:

“123 AWB submitted that the intermediate purpose for the creation of Ex 665 was to seek legal advice from Mr Zwier. It was contended that Ex 665 was part of a continuum of ongoing communications between lawyer and client. If the submission is intended to suggest that the sole or dominant purpose for the creation of Ex 665 was the purpose of seeking legal advice from Mr Zwier, I reject the submission. If the submission is merely that one of the purposes for the creation of the document was the seeking of legal advice from Mr Zwier, as part of a continuum of advice relating to the Inquiry, I accept that this is supported by the evidence. But, in my opinion, the evidence does not establish that Ex 665 was created for the dominant purpose of seeking legal advice from Mr Zwier.

124  As to the ultimate purpose of Ex 665, AWB submitted that it was created for the purposes of the Inquiry and its ultimate purpose was to enhance AWB’s prospects in the Inquiry.  This does not establish a dominant purpose of obtaining legal advice. …”

139.  On a proper interpretation, the above cases are not authorities in support of the content approach.  What we see in West London, Rawlinson and Hunter and AWB is simply that the courts there were considering the contents to resolve the dominant purpose issue.

140.  Among the authorities cited by Mr Shieh, the closest one on the facts to a Balabel scenario is Ng J’s decision in Alireza. Legal advice privilege was sought over drafts of contractual documents.  The privilege claim was upheld.  Mr Shieh submits that the judge did not base his decision as automatically flowing from the mere fact that a lawyer was retained, or that the drafts were made by lawyers.  Instead, his Lordship cited the evidential requirements in West London (at para 28), and then proceeded to analyse the affidavit evidence concerning the contents of the documents (at paras 31 to 32).  This analysing process is also recorded in the concluding paragraph, ie para 38:

“To conclude, this court is of the view that the dominant purpose of the creation of the drafts was the giving of legal advice to the Plaintiff, the description of the Appeal Documents in the 3 Affidavits was sufficiently clear that it was legal advice, rather than purely commercial advice, which was given, and that the subject matter which called for legal advice was the manner in which the 2^nd Defendant’s proposal of recording the commercial terms in his letter dated 7 October 2011 should be improved” (underline added)

141.  Hence, Mr Shieh relies on this decision in support of the content approach. 

142.  While I can understand the logic in Mr Shieh’s argument, I have some reservation to treat the case as authority in support of the content approach. It seems tolerably plain from the judgment that the “content versus context” argument was not raised as an issue in that case.  In fact, the affidavits filed by the party claiming privilege already contained discussion of the contents of the documents in question.  It was only natural that the judge proceeded to discuss and analyse them.

143.  I now turn to address the second limb of Mr Shieh’s argument, which specifically deals with drafts of documents.  He submits that as an adjunct limb of the privilege, there is a need for the person seeking privilege over drafts of documents to show that disclosure will or will tend to reveal the privileged advice, or to betray or give a clue as to the trend of the advice given. 

144.  Insofar as Mr Shieh is saying that this is an absolute requirement which applies to all cases where legal advice privilege is claimed over drafts of documents, I reject that submission. 

145.  I find support, again, in Balabel.  It will be recalled that in that case, the court upheld the privilege claim over not only communications between the client and its solicitors, but also drafts (and working papers etc)  prepared by the solicitors relating to the transaction in respect of which the latter were instructed: see para 116 above.  It has been noted that there was no express discussion in the judgment as to why the drafts were afforded the same treatment as communications: see Re RBS at para 99.  Nevertheless, the crux of the decision is that where a relevant legal context is made out, those documents form “part of that necessary exchange of information of which the object is the giving of legal advice as and when appropriate” and would be protected.  There is no additional evidential requirement in such a case.

146.  Mr Shieh also relies on Re RBS.  That can be quickly dealt with.  Again, the facts in that case are far removed from a Balabel scenario. 

147.  The litigation originated from the collapse of the Royal Bank of Scotland (RBS).  Shareholders who had subscribed for shares pursuant to a rights issue pursued statutory remedies against RBS in order to recover the substantial losses they made in their investments.  They sought specific discovery of documents consisting of transcripts, notes of interviews which had previously been conducted by the bank with its employees and ex-employees as part of two internal investigations undertaken by it. 

148.  The court ruled, first, that these interview notes were not communications between client and legal adviser, applying Three Rivers (No 5) (see para 93).  This ruling does not concern us.  But its significance is that this was the starting point (expressly acknowledged to be so in para 103)  for the discussion of the bank’s alternative basis that the interview notes were privileged “lawyers’ working papers”.  It was pointed out that as the interviews were not privileged communications, it must follow that verbatim transcripts of these interviews would themselves not be privileged.  It was with this starting point in mind that the court held that the bank should demonstrate some attribute of or addition to the interview notes which would distinguish them from verbatim transcripts such that the disclosure of these notes would betray or at least give a clue as to the trend of advice being given to RBS by its lawyer: paras 103 to 107.

149.  One can immediately see that this is a very different factual scenario from Balabel.  The interview notes sought in Re RBS are plainly distinct and different, in kind and in nature, from drafts of agreements which may be generated in a Balabel scenario.  And the requirement for “some attribute or addition” cannot be treated as readily applicable to all kinds of “lawyers’ working papers”.  I therefore do not find that Re RBS supports Mr Shieh’s argument that there is a universal requirement for the person claiming privilege to show that disclosure of lawyers’ working papers, including drafts of documents, would, or would tend to, reveal the privileged advice.

Ruling

150.  The 2005 Statement, the Trust Deed, the GPOA and the Will Declaration are legal or formal documents. In each case, solicitors were engaged by Mother or Angela to draft, review and comment on the document. 

151.  More specifically:

(1)  The Trust Deed and the GPOA are legal instruments under which rights and obligations of or affecting Mother and Angela are created. 

(2)  The Will Declaration does not have this effect. Nevertheless, it is entitled “聲明” (Declaration), and Mother signed it in the presence of a witness. It was plainly intended to be a formal document.

(3)  The 2005 Statement, whilst not having any dispositive effect, was also plainly intended to be a formal document recording certain events and Mother’s thoughts.  Mother signed in the presence of Mabel Lui, her solicitor, as witness. 

(4)  Mr Shieh, in his oral submissions, described this document as a kind of aide-memoire or diary entry.  I do not think that this description properly reflects the nature or importance of the document. The statement was made against the background that there were ongoing negotiations and activities relating to the distribution of Father’s vast wealth.  Mr Yu submitted, and I agree, that it appears to be the case that Mother wanted a lawyer to look at what she wanted to record in a formal way, which might be of consequence in the future. 

(5)  This is therefore squarely a case where Mother was seeking assistance from a solicitor because the latter had the necessary legal skill set to help her lay down her thinking in a proper way.  In Lord Brown’s words, the engagement clearly has “the character of legal business”.

152.  The present situation is therefore a straightforward case of a client engaging a solicitor to put in place a legal transaction or a formal document.  In other words, a Balabel scenario.  Applying what I have said in para 124 above, all the documents, including earlier drafts of documents and correspondence, which passed between the solicitor and the client may generally be taken to be part of the necessary exchange of information for the purpose of giving of legal advice as and when appropriate, and are therefore privileged.  They are all referable to the confidential solicitor-and-client relationship.  Vivien has not suggested that there are any contrary indications which would suggest otherwise. 

153.  Her main contention is that Angela does not know the contents of the Excepted Documents and the Missing Riders and cannot even begin to depose to their privileged nature.  However, as the relevant legal context has been made out, one may reasonably suppose (there being no contrary indications)  that the Excepted Documents and the Missing Riders form part of the continuum of communication, which is privileged. 

154.  In my judgment, the present case is a clear case for upholding the claim of legal advice privilege.

155.  In respect of the 2005 Statement, Mabel Lui acted for Mother and Anthony Poon acted for Angela.  In the former case, in line with what Wilson Chan J held in the decision in [2021] HKCFI 2436 as regards a Larke v Nugus statement, Angela may assert legal advice privilege belonging to Mother against Vivien.  This ruling is currently subject to appeal.  Notwithstanding that, the ruling presently stands as between Angela and Vivien, and Vivien is precluded from contending otherwise by virtue of issue estoppel.  In the latter case, Angela may assert the privilege in her own right.

156.  In respect of the Trust Deed and the GPOA, Wu Wing Kit acted for Angela.  She may claim privilege in her own right in respect of the drafts referred to in the witness statements.  On the materials before me, it would appear to be the case that David Wong acted for Mother, not Angela.  In that case, Angela may also assert privilege over the drafts on behalf of Mother’s estate.

157.  In respect of the Will Declaration, it would also appear to be the case that David Wong acted for Mother, not Angela.  In that case, Angela may claim privilege over its draft on behalf of Mother’s estate.

CONCLUSION

158.  I have held above that the discovery application fails to satisfy the requirements under Order 24.  For that reason, I order that Vivien’s summons be dismissed.

159.  I further make a costs order nisi that Vivien do bear the costs of the summons incurred by Angela, Mabel Lui and DLA Piper, including all reserved costs, to be taxed if not agreed, with a certificate for three counsel.