SOMBAHAMPHE TANKA v. THE SECRETARY FOR JUSTICE on behalf of THE COMMISSIONER OF POLICE AND ANOTHER

DCMP 532/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 532 OF 2012

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D E C I S I O N

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1. The plaintiff applies for leave to appeal to the Court of Appeal my judgment of 16 November 2012 for refusing to order the Director of Public Prosecutions to release documents under classes 1(i) and (j) to the plaintiff on the ground that they were protected under legal professional privilege.

2. Mr Deng, counsel for the plaintiff, submitted that the report the police officer prepared was sent to the prosecution, when he does so, he was not a client of the prosecutor but was only carrying out a public duty and a statutory function and therefore the question whether the dominant purpose was for ‘legal advice’ does not arise. 

3. He further submitted that the confidence between the police and prosecutor is protected not by legal professional privilege (‘LPP’) but the dominant purpose and public interest immunity (‘PII’) and the court ought to be able to see the reports and documents and consider if it is in the public interest to disclose them.

4. It is Mr Deng’s further submission that this is the first time a court in Hong Kong is engaged with the issue on whether LPP applies to these types of documents.  Furthermore, granting leave to appeal will enable the Court of Appeal to consider the application of legal professional privilege, an absolute and immutable privilege, against public interest immunity which is a qualified privilege, therefore a question of general and public importance.

5. Counsel for the defence, Mr Ng, opposed the application.  He argued that there is no evidence to suggest the police investigation reports in question were those generated routinely for the sole purpose of police investigation and not for the dominant purpose of seeking legal advice from the Director of public prosecution. 

6. Mr Ng further submitted that whether a particular document is protected by PII or/and LPP depends on the facts and the circumstances of that case, therefore, the Court of Appeal would not be laying any guidelines.  As PII was not relied on in this case, it is not an issue for the court’s decision. 

7. At the hearing of the application, neither the plaintiff nor the defendant asked the court to look at the documents in question, including the reports from the police to the prosecution before a decision is made.  It was not an issue before the court to decide whether the actual contents of the documents or reports were disclosable.  I was asked to decide on the principle if they should be disclosed to the plaintiff and it was on that basis I made my decision.  However, from the plaintiff’s submission today, it seems his position has shifted.  I am not going to at this stage consider whether the documents should be looked at before a decision is made.  In any event, this is not a ground of appeal because that suggestion was never made at the hearing.

8. I have considered the merits of the application and I agree this appeal involves public interest. The question of legal professional privilege in this case should be considered by the Court of Appeal.  Even though PII was not relied on in this case, the Court of Appeal may also like to look at it as a matter of principle together with the issue of legal professional privilege.

9. I cannot say at this stage that the plaintiff has no reasonable prospect of success.  In any event, as there is an issue the Court of Appeal should look at as a matter of public interest, I would allow leave to appeal to the plaintiff. Costs be in the cause of appeal.

10. The plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.