CHUNG FUNG CHU v. SECRETARY FOR JUSTICE

CACV123 /2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 123 OF 2007

(ON APPEAL FROM DCEC No. 251 OF 2004 )

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JUDGMENT

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Hon.  Yuen JA:

1.  This is an appeal by the Respondent from a decision of Deputy District Judge W.C. Li who ordered the disclosure of a document (a medical report) which the Respondent claims is subject to legal professional privilege.

Background

2.  The Applicant is an employee of the Government.  She has commenced an Employees Compensation Claim against the Government for injuries to her wrists and elbow; further or alternatively, for occupational disease, being bilateral wrist tendinitis.

Medical examination

3.  After the proceedings were issued in 2004, the Respondent asked the Applicant to attend a medical examination by  Dr Y.C. Chu.  The Applicant did so.  This occurred in 2005.

Report

4.  Dr Chu made a report which the Respondent’s solicitors did not include in a supplemental List of Documents.  (The Respondent has filed only one List of Documents, which was filed before the Applicant’s visit to Dr Chu, and which included medical reports of two other doctors).

Request for report

5.  The Applicant asked Dr Chu for a copy of the report he made.  Dr Chu referred the Applicant to the Respondent’s solicitors.  The Respondent’s solicitors refused to disclose the report to the Applicant.

Summons

6.  By a summons issued on 8 March 2007 the Applicant sought (amongst other things) a copy of Dr Chu’s report.  In her affirmation in support, the Applicant stated only that she suspected that Dr Chu’s report was favourable to her.

7.  The summons was heard by the deputy judge on 15 March 2007.  In an extemporaneous decision, the judge rejected the Respondent’s argument based on Order 24 rule 5 that the report was protected by legal professional privilege, essentially on the ground that as Dr Chu had examined the Applicant, the judge considered that she was thereby entitled to see the report.  The judge ordered costs to be in the cause.

Leave to appeal and stay of execution pending appeal

8.  The Respondent sought leave to appeal the decision on the ground that the deputy judge had erred in law.  The deputy judge gave leave on 20 April 2007 and also gave a stay of execution pending appeal.

Appeal

9.  The Respondent’s primary ground of appeal is that the report was subject to legal professional privilege and the rules of court do not require a party to disclose any medical report prepared by his expert unless that party intends to adduce the report in evidence.  It is clear from an affidavit of the Respondent’s solicitors filed on 20 April 2007 that the report was prepared for the purposes of the action.

Discussion

10.  It is clear in my view that the report was (and is) subject to legal professional privilege.  It came into existence after the proceedings were commenced and was prepared by Dr Chu for the purposes of advising or informing the Respondent in regard to the litigation.  The conditions of legal profession privilege are clearly satisfied. 

11.  The fact that Dr Chu had examined the Applicant before preparing the report makes no difference (see the decision of the English Court of Appeal in Lee v South West Thames Regional Health Authority [1985] 1 WLR 845, 848F-G).

12.  Of course if the Respondent intends to adduce Dr Chu’s report as expert evidence in the proceedings, that would be different but that is not the case.  Nor has the Respondent waived legal professional privilege in any way.  In this regard I note that in Dr Chu’s letter to the Applicant dated 30 May 2007 (after the hearing and after the order for stay pending appeal), the doctor had written:

“	The requested ‘Medical Report’ has been presented to [the Respondent’s solicitors].
	Please contact [the Respondent’s solicitors] for copy of the Medical Report”.

I do not read that as a waiver of the privilege.  All that the doctor was doing was to refer the Applicant to the Respondent’s solicitors.  In any event, the privilege belongs to the litigant (i.e. the Respondent) not to the witness (i.e. the doctor).  That is also clear from Lee at p.848H.  In the circumstances, the deputy judge erred in law and I would allow the appeal.

Costs

13.  We have heard the parties’ position on costs. The normal order is that costs should follow the event and neither party has sought to suggest that an exception should be made in this case.  Accordingly the costs of the appeal should be paid by the Applicant to the Respondent. 

14.  As for the costs before the deputy judge, I note that the report had not been specifically included in Part II of Schedule I in any supplemental list of documents of the Respondent and no affirmation had been filed on behalf of the Respondent before the hearing asserting legal professional privilege for the report, the Respondent’s lawyer asserting it orally at the hearing.  As such, I think that had the deputy judge been aware of the correct position in law, he would most likely have obtained an undertaking from the Respondent’s solicitor to put her assertion on affirmation and then would have dismissed the Applicant’s summons with no order as to costs (the Applicant having failed in the other application in the summons, from which there is no appeal).  I would accordingly make no order as to costs below.  Neither party has sought to suggest that any other order would be appropriate.

Order

15.  I would allow the Respondent’s appeal, set aside paragraphs 2 and 3 of the deputy judge’s order of 15 March 2007, order that the Applicant pay the Respondent’s costs of the appeal and make no order as to costs before the deputy judge.

Hon. Kwan J:

16.  I agree.