YUEN TSZ CHUN FRANK AND CHAN HOI YAN Joint and Several Trustees of the Property of HAN, CATHERINE (韓熙庭, formerly known as韓文虹), a Bankrupt v. HO SING WAI (t/a under the firm name AH Lawyers)

HCB 1612/2019

[2020] HKCFI 566

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS NO 1612 OF 2019

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D E C I S I O N

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1.  By summons dated 14 January 2020, the trustees in bankruptcy of Ms Catherine Han, the bankrupt herein, seek an order pursuant to s 29 of the Bankruptcy Ordinance (Cap 6) that Mr Ho Sing Wai (the sole proprietor of the Hong Kong solicitors firm AH Lawyers) do make an affidavit to disclose (a) full particulars of all means of contacting the bankrupt including mobile or fixed phone numbers, WhatsApp, WeChat identity and any other form of instant messaging service; (b) full particulars of her current last known whereabouts; and (c) copy of the client ledger of AH Lawyers in respect of the bankrupt.

2.  The summons was originally scheduled for hearing on 19 February 2020 but was adjourned due to the coronavirus outbreak.  Mr Ho has since indicated by letter that he takes a neutral stance and will abide by the order of the court on the trustees’ application, and has filed neither evidence nor submissions in opposition.  I also waive the requirement for the trustees to lodge any submissions, since their position and contentions can be seen from the evidence and correspondence available.

3.  As the trustees have explained on affirmation, they and the Official Receiver have been unable to contact the bankrupt. Plainly the bankrupt’s whereabouts and her contact details are information that the trustees reasonably require for the performance of their functions.  They also have the duty to identify and collect the assets of the bankrupt, which are now vested in the trustees, and which prima facie include monies held by a solicitors firm on its clients’ account on behalf of the bankrupt. There is reason to believe that Mr Ho is in possession of the information sought.

4.  While Mr Ho has now adopted a neutral stance, in earlier letters dated 24 October and 20 December 2019 to the trustees, AH Lawyers stated that the information sought was confidential or privileged, and also protected by the Personal Data (Privacy) Ordinance (Cap 486).  I would briefly deal with these matters below. 

5.  First, while the contact details of the bankrupt may be confidential, it is trite that a mere duty of confidentiality may be overridden by a court order for disclosure. 

6.  Secondly, I recognise that the protection of legal professional privilege goes further than confidentiality and may be an absolute bar to disclosure subject to certain very limited exceptions which are not (or not yet) said to be applicable here.  But not every communication between solicitor and client attracts such privilege.  As stated in R (Miller Gardner Solicitors) v Crown Court at Minshull Street, Manchester [2002] EWHC 3077 (Admin) at §20 (per Fulford J, with whom Rose LJ agreed):

“ ... the provision of an individual’s name, address and contact number cannot, without more, be regarded as being made in connection with legal advice. It records nothing which passes between the solicitor and client in relation to the obtaining of or giving of legal advice. Taking down the name and telephone number is a formality that occurs before the legal advice is sought or given. ... [P]roviding these details does no more than create the channel through which advice may later flow ...”

7.  Since there is no basis to think in the present case that the contact details were provided to the solicitor in confidence for the purposes of obtaining legal advice, no privilege has prima facie arisen: see JSC BTA Bank v Solodchenko and others (No 3) [2013] Ch 1; contrast JSC BTA Bank v Ablyazov [2012] EWHC 1252 (Comm); SRJ v Person(s) Unknown (Author and Commenters of Internet Blogs) [2014] EWHC 2293 (QB).  Nor has the bankrupt claimed the privilege herself or through Mr Ho.

8.  Thirdly, while data protection principle 3 in the Personal Data (Privacy) Ordinance provides that personal data shall not without consent be used for a new purpose, by virtue of s 60B of the same Ordinance personal data is exempt from this principle if the use of the data is required or authorised by any order of a court in Hong Kong or required in connection with any legal proceedings in Hong Kong.

9.  In relation to the client ledger, since the property of the bankrupt vests in the trustees upon their appointment (see s 58(2) of the Bankruptcy Ordinance), I see no reason why they should not be entitled to have a copy of the ledger.

10.  For these reasons there will be an order in terms of paragraph 1 of the summons.  Costs, if not agreed, will be dealt with by written submissions of no more than 2 pages for each party, to be lodged within 14 days.