CITIC PACIFIC LTD v. SECRETARY FOR JUSTICE AND ANOTHER

HCMP767/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 760 OF 2010

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BETWEEN

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JUDGMENT

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1.  This is the second judgment in proceedings instituted by the plaintiff asserting claims of legal professional privilege (LPP).

2.  The first judgment delivered on 18 March 2011 related to six documents which had been surrendered by the plaintiff to the Securities and Futures Commission. In that the judgment I referred to those six documents collectively as "the Surrendered Material" and the remaining documents and items seized pursuant to search warrants as "the Seized Material".  I shall continue to use those terms when necessary.

3.  This stage of the proceedings relates to some of the Seized Material which were seized by officers of the Commercial Crime Bureau. They include precursors as well as duplicates of the Surrendered Materials. The material which I have examined in regard to this judgment comprised two distinct classes of documents: first, 1,469 individual documents - delivered to court in two tranches - each being a printout of a file stored on hard drives of computers belonging to the plaintiff which were part of the Seized Material; second, 183 envelopes containing files containing several thousand pages of documents seized. These were filed in court on the last day allocated to the consideration of the Seized Material. For ease of distinguishing the classes of documents I shall refer, where necessary, to the former as "the printouts" and the latter as "the real documents".

4.  The printouts were accompanied by a 69 page, A3 sized spreadsheet, containing, in a font so small as to be barely legible, an entry or multiple entries for each of the 1469 individual documents: each entry comprised 15 columns. That spreadsheet facilitated the task of examining the printouts.

5.  The real documents were unaccompanied by a comprehensive spreadsheet. Instead each envelope in which documents were sealed had attached to it some form of synopsis - in some instances quite extensive, in others containing minimal information - which resulted in it being a time-consuming exercise to match individual documents to the synopsis let alone to attempt to cross-reference them to the same documents, or extracts from them, in the printouts.

6.  Some of the printouts were single sheets of paper, others were comprised of many pages. Many of the seized files containing the real documents contained several hundred documents, some of which were repetitions of the prinouts.  The real documents also contained materials which were not to be found in the printouts: several of these necessitated reassessment of decisions made in regard not only to other real documents but also in regard to a number of the printouts resulting in substantial duplication of effort.

7.  The last-minute delivery of the real documents was a major contributor to the length of time taken to produce this judgement.

8.  There is a real measure of repetition in the Seized Material in the sense of a computer file having been saved more than once, resulting in a direct duplicate of the document being printed out; the same e-mail having been dispatched, individually, to different recipients, the only difference being the identity of the recipient/s; where e-mails are concerned, earlier e-mails being repeated in later e-mails; a number of the real documents being hard copies of the files which gave rise to the printouts.

9.  A large number of the Seized Materials which I have inspected consisted of correspondence by e-mail, with or without attached files. Whereas historically, and certainly in the days when the earlier judgments on the topic of LPP were decided, a document would be a single entity transmitted from author to recipient which attracted a reply of a single entity transmitted from original recipient to original author without reproducing the first communication, e-mail exchanges regularly result in a preceding communication being reproduced in its entirety as an appendage to the reply to it creating what perhaps may be regarded as a composite document. If correspondence between the parties continues without earlier exchanges being removed, the e-mails continue to grow in length.

10.  Frequently, an e-mail, with or without attachments, is dispatched to more than one addressee. In addition, there are numerous instances where it has simultaneously been copied to one or more persons. In order to determine the applicability of the principles which I identify  below, it has been necessary in each instance to ascertain the identity of the person/s to whom a document was sent or from whom it was received; the capacity of the person/s; the purpose of the communication; where the communication was with a third-party (including employees of the plaintiff other than those in the Group Legal Department) and contained a complete advice - or summary or extract of that advice - it has been necessary to determine whether such communication was intended by the plaintiff to constitute a waiver of privilege; where the communication emanated from the Group Legal Department, it has been necessary to determine whether it was a communication generated in either the author's capacity as legal advisor or in an executive, managerial or administrative capacity.

BACKGROUND RELEVANT TO THIS JUDGMENT

11.  On 20 October 2008 the plaintiff revealed, by publishing a profit warning announcement pursuant to Rule 13.09 of the Listing Rules of the Hong Kong Stock Exchange, that it previously had entered into various forward contracts in respect of three foreign currencies which had resulted in it sustaining a “Mark to Market” potential estimated loss of some $14.7 billion.

12.  According to that profit warning announcement, the plaintiff had become aware of its financial exposure on 7 September 2008, some 43 days earlier. Although there is no evidence as to the date when it began to seek legal advice from Mayer Brown JSM it must have been prior to 23 September 2008 for one of the partners of that firm attended a meeting of the Board of Directors of the plaintiff on that date.

13.  At this stage it will be helpful to recall the factual findings that I made, shorn of the conclusions which I drew from those facts, in order to provide a backdrop against which the generation and use of the Seized Material should be viewed. I will return to the issue with which I dealt in the first judgment at paragraphs 45 to 61 which related to the applicability of the crime/fraud exception.

14.  A chronology incorporating the dates and identity of the Surrendered Material as well as other significant dates affords an efficient overview of the interrelationship of events thus:

Date	Event
07.09.08	Company becomes aware of financial risk exposure
16.09.08	DCH Circular containing “no material adverse change” statement
18.09.08*	Internal note of advice by Ms. Shih
23.09.08*	CITIC Board Meeting
25.09.08	Loan by Bank of Tokyo-Mitsubishi: $250 million.
26.09.08*	Letter from JSM
06.10.08*	Letter from JSM
09.10.08*	Second Internal note of advice by Ms. Shih
10.10.08	Loan by Bank of China (HK) Ltd: $1 billion
14.10.08	Loan by Industrial and Commercial Bank of China: $500 million
20.10.08*	CITIC Board Meeting
20.10.08	Profit Warning Announcement
20.10.08	Statement by chairman of CITIC

*   The Surrendered Material, including minutes of the two mentioned board meetings.

15.  That the plaintiff became aware of its financial exposure on 7 September 2008 appears from the profit warning announcement itself which was made on 20 October 2008. The press statement issued that same day by the plaintiff's chairman, Mr. Larry Yung, refers to "the problem" having been discovered by "senior management... last month". In the circumstances it is realistic to conclude that the directors of the plaintiff were aware of the financial risk exposure on 7 September 2008.

16.  The DCH circular dated 16 September 2008 referred to in the chronology related to a disclosable and connected transaction concerning the acquisition by the plaintiff of a 49% interest in FAW Toyota 4S Company and a 50% interest in Lexus 4S Company and the related shareholders’ loan accounts. The date of the sale and purchase agreement is shown to be 26 August 2008.

17.  The definitions contained in that circular define the latest practicable date prior to the printing of the circular for the purpose of ascertaining certain information therein as being 9 September 2008, a date after the plaintiff  had become aware of the financial risk exposure.

18.  The DCH circular contains, in an appendix containing general information, a specific representation in the following terms:

MATERIAL ADVERSE CHANGE

Save as disclosed in this circular, the directors are not aware of any material adverse change in the financial trading position of the group since 31 December 2007, the date to which the latest published audited accounts of the company were made up.

19.  There was, as a matter of fact, no disclosure in the circular of the financial risk exposure which had become apparent on or about 7 September 2008.

20.  The plaintiff obtained, according to the unchallenged evidence of DSI Wong, three bank loans on 25 September and 10 and 14 October 2008, all at a time prior to the public disclosure by the plaintiff of the financial risk exposure which already was known to it. It must be self-evident that prior to the date of the granting of the three loans an application would have been made to the respective lender. I draw that inference: loans are not granted in a vacuum - especially loans of this magnitude.

21.  The board resolutions authorising the borrowing were signed by the Finance Committee of the Board of Directors of the plaintiff which included Larry Yung, Henry Fan, Peter Lee and Leslie Chang. The agreements in respect of the loans were signed by Leslie Chang in all three instances and also by Peter Lee in one instance.

22.  It is the defendants’ case that at the time of negotiating and obtaining the loans no disclosure of the financial risk exposure was made by the plaintiff to any of the potential lenders. As noted above in §§18 and 19, there clearly was no disclosure of knowledge of the potential loss.  The plaintiff, which bears the onus in these proceedings, placed no evidence before me to suggest that, contrary to that, disclosure was made to the banks when application was made for the loans.  I draw the inference that no such disclosure was made at that time.

23.  The defendants contend, first, that the omission from the DCH circular of any disclosure of "material adverse change" in regard to the forward contracts is a clear, and public, demonstration of an intention to conceal the knowledge of those abnormal losses already sustained or already contemplated. They contend, second, that thereafter to conceal the plaintiff’s financial risk exposure, known as it was at that time, from its creditors; from existing investors in the plaintiff; and from those who might invest in the plaintiff, the shares in which were freely traded on the Hong Kong stock exchange would put at risk the economic interests of those groups, a fact which would have been a clear to the plaintiff and those controlling it.

24.  On 16 March 2009 a magistrate issued 27 search warrants pursuant to the provisions of s. 50(7) of the Police Force Ordinance, Cap. 232, authorising the seizure, at different premises, of specified documents and electronic devices and storage systems together with a catch-all category.

25.  The search warrants were executed at various premises on 3 April 2009. What was seized as being described elsewhere, accurately, as:

“...(a) hundreds of thousands of pages of hard copy documents/materials; (b)...a total of 106 computer hard drives (52 removed and 54 clones created from computer servers)... [and] 32 items of computer hardware, including hard drives, computers, laptops and PDAs...”.

26.  A blanket claim was made asserting that every item of the surrendered and the Seized Materials are subject to LPP. There is a further claim by the plaintiff that a portion of the Seized Material also falls without the scope of the search warrants: that has yet to be adjudicated upon. There were discussions between the plaintiff and the defendants as best how to resolve the issues. They were only partly fruitful but, after many months of inspection of documents and computer file printouts by teams of many persons on both sides, resulted in the plaintiff's claim being reduced to the materials which are the subject of these proceedings As a consequence, the plaintiff instituted these proceedings in which it seeks, inter alia, the return by the 2nd defendant of the Seized Materials, the plaintiff's case being that they are subject to either or both of  litigation privilege and legal advice privilege.

27.  The Seized Material covers the period from 22 July 2008 to 4 February 2009.

THE CRIME/FRAUD EXCEPTION

28.  I dealt in detail in the first judgment with the applicability of the crime/fraud exception in regard to LPP. I do not intend to repeat all that I said there, which should be read into this judgment.

29.  The exception occurs where the communication between client and legal adviser is made to further the commission of a crime or fraud, R v Cox and Railton 1884 14 QBD 153 at 165. The case law indicates that "fraud " is in this context used in a relatively wide sense. More recently, the enquiry has been expressed as being whether the advice was sought or given for the purpose of effecting an iniquity, Barlcays Bank Plc & Ors v Eustice & Ors [1995] EWCA Civ 29

30.  The principles and the test to be applied appear at paragraphs 45 to 61 of the first judgment: their applicability to individual documents appears in paragraphs 66 to 77 of the confidential portion of the judgment.

31.  I noted at §78.2 of the first judgement that there was a prima facie case of the existence of both a conspiracy to defraud as well as offences pursuant to s. 21 of the Theft Ordinance, Cap 210, made out on the papers which had the effect that LPP did not apply to any of the Surrendered Material.

32.  There is nothing on the evidence before me, such as it may be, to suggest that the exception could properly be said to apply to any of  the printouts of computer files generated prior to 7 September 2008 or to the real documents which were created before that date. In respect of those documents, whether they are protected by LPP in whole; protected in part and thus subject to being redacted; or entirely unprotected appears from Schedule 1 attached.

33.  Conversely, consistent with the findings I made in the first judgment, and for those reasons, I am satisfied that the crime/fraud applies to each of the files represented by the printouts from 7 September 2008 onwards and each of the real documents created on or after that date, all of which, consequently are unprotected by LPP. That is my primary finding.

34.  It is the position of the parties that they require a ruling on a document-by-document basis as to the application of LPP to each document in case I am found to have erred in regard to the application of the crime/fraud exception. Rather than cause yet further delay by awaiting the outcome of any appeal as to my decision on the crime/fraud exception, the parties have submitted that I should perform that exercise at this stage. Consequently, I now turn to a consideration of the general principles regarding LPP and their applicability to the material considered in this part of the proceedings.

LEGAL PROFESSIONAL PRIVILEGE

Generally

35.  Whatever the nature of the privilege claimed it is for the party refusing disclosure to establish his right to refuse, Waugh v British Railways Board [1980] AC 521 at 541G. The plaintiff bears the onus to satisfy me, on a balance of probabilities, that each file/printout/document is privileged either entirely or, at least, in part which results in redaction of the privileged portion.

36.  The fundamental principle justifying LPP arises from public interest requiring full and frank exchange of confidence between solicitor and client to enable the latter to receive necessary legal advice. Originally it related only to communications where legal proceedings were extant or in contemplation. This was the rationale which distinguished the solicitor and client relationship from that between any other professional man and his client. There is no doubt that LPP now extends beyond legal advice in regard to litigation, Balabel and Another v Air-India [1988] 2 All E R 246 CA at 249g.

Litigation privilege

37.  The privilege which attaches to documents brought into existence for the purpose of actual or contemplated litigation differs from legal advice privilege. Use of the document in reasonably apprehended litigation had to be the dominant purpose in order to attract privilege from disclosure, Waugh v British Railways Board at 534F approving Grant v Downs 135 C.L.R. 674. To select the standard of dominant purpose is not to impose a definition too difficult of measurement - it is to be met with in other fields of law, Waugh v British Railways Board at 545D.

38.  Where this is only one of the several purposes for which the documents are brought into existence, LPP attaches to them only if it was the dominant purpose, Price Waterhouse (a firm) v BCCI Holdings (Luxembourg) SA and others [1992] BCLC 583at 589.

39.  Preparation with a view to litigation is the essential purpose which protects a communication from disclosure in such cases, Waugh v British Railways Board at 542G.

40.  The mere fact that the document may prove of use in or in connection with supervening litigation would not qualify it as a privileged document, Grant v Downs at 678.

Is litigation privilege available to the plaintiff?

41.  There seem to me to be two aspects to this issue: first, the situation which needs to prevail to entitle the plaintiff to invoke litigation privilege; and, second, whether the communications may be said to indicate that the dominant purpose of obtaining the advice was in contemplation of that litigation.

Litigation to be a "real likelihood"

42.  This first aspect was considered by Moore-Bick J in United States of America v Philip Morris Inc and others and British American Tobacco (Investments) Ltd (intervener) [2003] EWHC 3028 (Comm), a matter in which letters of request had been issued by the United States District Court for the District of Columbia one of which sought the questioning of a Mr. Foyle, a solicitor who had previously advised the intervener which had been permitted to intervene on the basis that it was anticipated, correctly, that it would refuse to waive both categories of privilege.

43.  In the course of his judgment the judge said:

42.  The leading authority on litigation privilege is Waugh v British Railways Board [1980] A.C. 521. The House of Lords was not directly concerned in that case with the likelihood of litigation, but Lord Simon and Lord Edmund Davies referred with approval to a passage in the judgment of Barwick C.J. in the High Court of Australia in Grant v Downs (1976) 135 C.L.R. 674 in which he referred to documents produced at a time when litigation was 'in reasonable prospect'. Subsequently in Re Highgrade Traders [1984] B.C.L.C. 151 the Court of Appeal, having considered a number of earlier authorities including Waugh v British Railways Board, held that litigation privilege may be claimed in respect of documents brought into being at a time when litigation is reasonably in prospect: see per Oliver L.J. at page 172. That test has been applied in many subsequent cases.

46.  It has been recognised on many occasions that there is a conflict between the need to enable clients to communicate freely with their legal advisers in relation to litigation and the need to ensure that all relevant material is before the court: see, for example, Lord Wilberforce in Waugh v British Railways Board at page 531-532 and Lord Simon at pages 535-537. The point at which litigation should be regarded as sufficiently likely for confidential communications between client and his lawyer to attract privilege on this ground therefore involves striking an appropriate balance between these two factors. The requirement that litigation be 'reasonably in prospect' is not in my view satisfied unless the party seeking to claim privilege can show that he was aware of circumstances which rendered litigation between himself and a particular person or class of persons a real likelihood rather than a mere possibility.

47.  I am unable to accept that litigation against BATCo itself was reasonably in prospect in 1985 and 1986 when Lovells were first instructed. I quite accept that at that time Mr. Cannar thought it a distinct possibility that sooner or later someone might make a claim against BATCo for smoking-related illness, if only because the burgeoning litigation in the United States could be expected to provide an example to claimants in other countries, but at that stage no claim had been made or even threatened. The fact that Mr. Cannar considered it desirable for BATCo to put its house in order because of a general apprehension of future litigation is not in my view sufficient to entitle it to claim litigation privilege in respect of communications made for that purpose....

[Emphasis supplied]

44.  I respectfully agree with the approach adopted by the judge: litigation must be a real likelihood rather than a mere possibility before a claim for this class privilege will succeed. In this context I have in mind both civil and criminal litigation, as well as litigation involving appropriate regulators.

45.  Although it has been submitted on behalf of the plaintiff in the present matter that the announcement of such substantial losses could reasonably be expected to result in litigation against it, I judge that approach to be entirely speculative. In particular it will be remembered that the seizure of the Seized Material marked only the very beginning of an investigation which, apparently, cannot proceed until such time as the issue of LPP has been resolved. One letter was received from a disgruntled shareholder optimistically demanding compensation: the demand was rejected and nothing further eventuated. The plaintiff fails to satisfy me that there was a real likelihood of litigation against it at the time when it was seeking and obtaining legal advice.

The dominant purpose of the document

46.  As to this second aspect, all that I need to say about it is that the documents do not indicate the dominant purpose of the advice sought as being in regard to litigation. In my judgment, any such consideration was entirely peripheral. The plaintiff, consequently, fails on this limb also.

Conclusion on litigation privilege

47.  In the circumstances the plaintiff has not satisfied me that it is entitled to rely upon litigation privilege to secure the return of the Seized Material.

Legal advice privilege

48.  Lord Scott in the House of Lords judgment in Three Rivers District Council v Bank of England (No 6) [2005] 1AC 610, (“Three Rivers (No 6)” expanded on the policy underlying, specifically, legal advice privilege, in these terms at §34:

... these judicial dicta... recognise that in the complex world in which we live there are a multitude of reasons why individuals, whether humble or powerful, or corporations, whether large or small, may need to seek the advice or assistance of lawyers in connection with their affairs; they recognise that the seeking and giving of this advice so that clients may achieve an orderly arrangement of their affairs is strongly in the public interest; they recognise that in order for the advice to bring about that desirable result it is essential that the full and complete facts are placed before the lawyers who are to give it; and they recognise that unless clients can be assured that what they tell the lawyers will not be disclosed by the lawyers without their (the clients’) consent, there will be cases in which the requisite candour will be absent. It is obviously true that in very many cases clients would have no inhibitions in providing their lawyers with all the facts and information the lawyers might need whether or not there were the absolute assurance of nondisclosure that the present law of privilege provides. But the dicta... all have in common the idea that it is necessary in our society, a society in which the restraining and controlling framework is built upon a belief in the rule of law, that communications between clients and lawyers, whereby the clients are hoping for the assistance of the lawyers’ legal skills in the management of their (the clients’) affairs, should be secure against the possibility of any scrutiny from others, whether the police, the executive, business competitors, inquisitive busybodies or anyone else.

49.  LPP attaches to all communications made in confidence between a client and his legal adviser for the purpose of giving or obtaining legal advice. Litigation does not have to be in contemplation. It does not matter whether the communication is directly between the client and his legal adviser or is made through an intermediate agent of either, Millet J in Price Waterhouse (a firm) v BCCI Holdings (Luxembourg) SA and others at 588E.

50.  In the context of legal advice privilege, 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", Balabel v Air India at 254j. It extends to material provided to solicitors for advice on how to present evidence to an enquiry in an orderly and attractive fashion and in the way least likely to attract criticism, Three Rivers (No 6) §37.

51.  Lord Scott in Three Rivers (No 6), adverting to the necessity for a "relevant legal context" referred to in Balabel v Air India indicated, at §38, that a consideration for a court in determining whether a document is protected by legal advice privilege is:

... whether the advice relates to the rights, liabilities, obligations or remedies of the client either under private law or under public law. If it does not, then, in my opinion, legal advice privilege would not apply. If it does so relate then, in my opinion, the judge should ask himself whether the communication falls within the policy underlying the justification of legal advice privilege in our law. Is the occasion on which the communication takes place and is the purpose for which it takes place such as to make it reasonable to expect the privilege to apply? The criterion must, in my opinion, be an objective one.

52.  Considerations arise as to the effect on privilege, first, of materials compiled by employees of the plaintiff other than those delegated to instruct/communicate with the plaintiff's legal advisers; and second, of dissemination of advice received from the legal advisers (a) internally, amongst employees of the plaintiff and (b) externally. There is a further issue in regard to the provision of advice by the plaintiff’s in-house Group Legal Department.

Compilation of materials submitted or intended to be submitted to legal advisers

53.  The Court of Appeal in England delivered a judgment in Three Rivers District Council and others v Governor and Company of the Bank of England (No 5) [2003] QB 2006 (“Three Rivers (No 5)”) which, despite an unenthusiastic reception by counsel for each party in these proceedings as well as general criticism, remains good law as to the effect on legal advice privilege of the compilation of materials for the purpose of instructing legal advisers by employees of a corporation seeking advice.

54.  After the collapse of the Bank of Credit and Commerce International SA an inquiry was set up on behalf of the Chancellor of the Exchequer and the Bank of England, under the chairmanship of Bingham LJ (the inquiry). After the inquiry had been established the Governor of the Bank of England appointed three bank officials to deal with all communications between the Bank and the inquiry: they became known as the Bingham Inquiry Unit (BIU). It was the function of BIU to liaise with and instruct the Bank’s solicitors, Freshfields. BIU was agreed to be the “client” of Freshfields. All BIU’s communications with the inquiry were the subject of legal advice from Freshfields and counsel. That advice covered all aspects of the preparation and presentation of the Bank’s evidence and submissions to the enquiry.

55.  The claimants instituted proceedings against the Bank for misfeasance in public office. The Bank claimed LPP in respect of a number of documents which came into existence between the time when BCCI collapsed and the time the Bank made its final submissions to the inquiry. The Bank accepted that the inquiry was not adversarial in nature and that, therefore, it could not rely on litigation privilege. It sought to rely on legal advice privilege. Disclosure was not sought of documents passing between BIU and Freshfields, or vice versa, or of any of Freshfields’s internal memoranda or drafts.

56.  The judge at first instance categorised the disputed documents into four in respect of each of which he posed himself a question, the question itself identifying the nature of the categorisation thus:

(1)  Does legal advice privilege extend to documents prepared by Bank employees, which were intended to be sent to and were in fact sent to Freshfields? (2) Does it extend to documents prepared by Bank employees with the dominant purpose of the Bank's obtaining legal advice but not, in fact, sent to Freshfields (though, perhaps, their effect was incorporated in documents that were so sent)? (3) Does it extend to documents prepared by Bank employees, without the dominant purpose of obtaining legal advice, but in fact sent to Freshfields? (4) Are the answers to (1), (2), and (3) above any different if the documents were prepared by bank employees who are now (viz as at 11 March 2003) ex-employees of the bank.

57.  The competing positions of the litigants were summarised by the Court as being that the claimants submitted that it was only communications between solicitor and client, and evidence of the content of such communications, that were privileged whilst preparatory materials obtained before such communications, even if prepared for the dominant purpose of being shown to a client's solicitor, even if prepared at the solicitor’s request and even if subsequently sent to the solicitor, did not come within the privilege whereas the Bank submitted that, as a matter of general principle, any document prepared with the dominant purpose of obtaining the solicitor's advice upon it came within the ambit of the privilege, whether or not it was actually communicated to the solicitor although that general principle was subject to the exception that documents sent to or by an independent third party (even if created with the dominant purpose of obtaining a solicitor's advice) would not be covered by legal advice privilege.

58.  The Court of Appeal concluded, expressly, that the Bank was not entitled to exercise privilege in respect of any of the four itemised categories.

59.  The Court found, at§14, after reviewing a number of earlier authorities, that information given by an employee to an employer or fellow employee, or information given by an agent to principal, even if it be intended that it be shown to a solicitor, of itself does not attract privilege for the purposes of legal advice privilege: conversely, if it is intended that the information will be shown to a solicitor in the context of existing or contemplated litigation it will be privileged whether it was obtained for use as evidence or for the purpose of obtaining advice.

60.  The Court found that the decision, which it discussed at length, in Wheeler v Le Marchant (1881) 17 Ch D 675 made it "... clear that legal advice privilege does not extend to documents obtained from third parties to be shown to a solicitor for advice.". The Bank sought to argue that communications from an employee "are different" because a corporation is only able to act through its employees: the Court rejected this contention.

61.  In considering a rationale for a distinction to be drawn between the two classes of privilege the Court recognised, at §26, that legal advice privilege is a fundamental human right (a view similarly expressed by Lord Hoffman in R (Morgan Grenfell & Co Ltd) v Special Comr of Income Tax [2003] 1 AC 563 §7) which can be overridden only by the express words of a statute or by necessary implication but continued:

But it is a privilege possessed by the client in relation to no other adviser. Lord Brougham was exercised by the difficulty of discovering why the privilege has been refused in respect of other advisers, especially medical advisers. But the law is clear that it is so refused in respect of every profession other than that of the law. In these circumstances it is important that it be confined to its proper limits. The judges of the 19th century thought that it should only apply to communications between client and adviser. That is the proper compass of the privilege. It is not, in our judgment, open to this court to extend the privilege, even if we thought it should.

[emphasis supplied]

62.  The Court then turned its attention to the decision in Balabel v Air India saying:

Then the judge cited the passage at p. 332: "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 the giving of legal advice as and when appropriate". That is a perfectly appropriate test to apply to communications between the client and his solicitor but authority does not support its wider application to memoranda supplied by employees for the purpose of being sent to the client’s solicitor...

[emphasis supplied]

concluding that it is no authority for extending the privilege.

63.  The Bank petitioned the House of Lords for leave to appeal the Court of Appeal’s order but that petition was refused.

64.  A subsequent discovery application was made consequent on this decision of the Court of Appeal. The Bank was again dissatisfied with the outcome and it appealed to the Court of Appeal, Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) [2004] QB 916, the judge in the court a quo having declared that the only documents or parts of documents that the Bank was entitled to withhold from disclosure on the ground of legal advice privilege were communications passing between BIU and its lawyers for the purposes of seeking or obtaining "advice concerning the bank's rights and obligations". The Court of Appeal dismissed the appeal, confirming the advice being sought from the lawyers must be advice as to legal rights or liabilities; advice as to how the Bank’s case should be presented to the enquiry so as to lead to a conclusion as favourable to the bank as possible was not privileged.

65.  The Bank appealed further to the House of Lords, Three Rivers (No 6), and was joined by a number of interveners who sought to

... clarify the approach that should be adopted to determine whether a communication between an employee and his or her employer's lawyers should be treated for legal advice purposes as a communication between the lawyers and their client. This is of particular importance for corporate clients, who can only communicate through employees or officers.

66.  The House of Lords noted that this was an issue which "simply does not arise” from the decision in the appeal before it. Although it heard submissions on the issue and had been invited to express its views on them it declined to do so indicating, in terms, that "The guiding precedent on the issue will continue to be the Court of Appeal judgment in Three Rivers (No 5)".

67.  In my judgment an aspect of the decision in Three Rivers (No 5) relevant to this matter was the recognition of the BIU, the committee formed of three nominated employees of the Bank to deal with the legal advisers, as being the "client" of the legal advisers; that recognition led to remaining employees of the Bank being regarded as "third parties" and thus their input into the instructions to the legal advisers not being subject to privilege.

68.  In the present instance the plaintiff has put before me a dramatis personae which, amongst other things, lists a number of groups of persons within it and attaches a descriptive label to those groups: for example, the Board of Directors; Business Development Department and the like. One of those groups is entitled "Group Legal Department" which comprises two persons, Patricia Shih, as Group General Counsel, and Ivy To, as the department's secretary.

69.  It is entirely apparent from the Seized Material before me that, save in one minor instance where material was forwarded directly to the legal advisers by a person outside the Group Legal Department but apparently at its behest, all instructions and correspondence to the legal advisers were routed solely and exclusively through the Group Legal Department - just as they were rooted through the BIU in Three Rivers (No 5). Similarly, responses to instructions and correspondence from legal advisers were directed to the Group Legal Department, usually the form of Miss Shih - again, as to the BIU in Three Rivers (No 5).

70.  In the circumstances, I take the view that the Group Legal Department, comprised of Miss Shih and Miss To, was the "client" of the legal advisers. It is clear that the Group Legal Department comprised the persons, or was the entity, delegated, either expressly or by implication, to instruct/communicate with the plaintiff’s legal advisers.

71.  The remaining employees of the plaintiff  - including Mr. Ricky Choy, who I am told, is a qualified solicitor, but was employed in the Company Secretiat Department of plaintiff and not in the Group Legal Department - fall to be regarded as "third parties" with the consequence that flows from the Three Rivers (No 5) decision: namely, that communications made with or by employees of the plaintiff other than those employed in the Group Legal Department or from third parties external to the plaintiff will not be privileged, even if they are intended for submission to the plaintiff’s legal advisers or prepared at the request of the plaintiff or the request of the legal advisers and whether they amount to an expression of the opinion of that employee, or comments, or comprise simply the collation of material already available to plaintiff.

72.  I accept that members of the Board of Directors of CITIC Pacific Ltd would not fall to be regarded as “employees” or “third parties” in this sense and that communications to/from them would not adversely affect LPP as it is clear that the Group Legal Department acted under their direction.

Dissemination of advice received from legal advisers

73.  The next issue to which I turn is the effect of dissemination of legal advice received from the plaintiff’s legal advisers, first, amongst the plaintiff’s employees outside the Group Legal Department and, second, outside the plaintiff.

74.  In the bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd (The "Good Luck") [1992] 2 Lloyd’s Rep 540 the defendants challenged a claim for LPP upon a number of bases: one submission was that if a privileged communication was reproduced or otherwise revealed in internal documents of the client those documents themselves would only be privileged if they could be described either as part of the communications system between lawyer-client or being for the purpose of considering or recording the legal advice tendered or to be sought. Saville J dealt with the argument by saying:

In my view if a lawyer-client communication falls within the principles set out in Lord Justice Taylor's judgment (that is to say, is covered by legal professional privilege) then internal documents or parts of documents of the client (or indeed the lawyer) reproducing or otherwise revealing those communications are also covered by the same privilege, whatever the purpose or motive (short of fraud) for which the document comes into existence... I see no good or valid reason for the suggestion that the confidence which it is accepted attaches to the lawyer-client communication itself, should somehow be lost once the advice given is put to the commercial use for which it was sought in the first place.

75.  In USP Strategies Plc and Another v London General Holdings Ltd and Others [2004] EWHC (Ch) 373 Mann J identified the issue to be the necessity to consider the extent to which privilege is maintained in material which is communicated to a third party by the client, an exercise which involves considering whether the communication was capable of being privileged and, if so, whether the privilege had been waived.

76.  He said:

20.  The position therefore seems to me to be as follows. Where privileged advice is disclosed to a third party the privilege is capable of attaching to the third-party communication because that communication is evidence of the privileged advice within the formulation in Three Rivers [(No 5)]. It does not matter whether that third-party communication is the whole of the advice... or a paraphrase of or extract from the advice....  Mr. Watson... sought to distinguish between the complete advice and summaries, extracts or paraphrases. Those he said were not privileged.... The proper analysis, consistent with Three Rivers [(No 5)], is to continue to afford privilege to material which evidences or reveals the substance of legal advice (subject, of course, to waiver)...

21.  This means that the subsistence or otherwise of privilege, where advice is communicated to a third party, turns on the extent to which there is a waiver of privilege on that occasion. Gotha City v Southeby’s and Anor. [1998] 1 WLR 114] demonstrates that it is not inevitable that there is a waiver in those circumstances.... The question in the present case, therefore, is whether and to what extent there was a waiver.

77.  I would accept respectfully those statements as accurately encapsulating the principles. It will be a question of fact in each instance whether and to what extent the dissemination to a third party of legal advice received by the plaintiff was intended to constitute a waiver of privilege. It does not matter whether the third party is an employee of the plaintiff and is a third party in the sense employed in Three Rivers (No 5) since it would be highly improbable, in the context of this case at least, that the plaintiff intended a waiver.

78.  I would agree, too, with the further findings of Mann J, at §30, that references merely to the fact of obtaining of legal advice as well as references to the obtaining of legal advice on a given subject matter are not privileged, whilst references which evidence the content of the advice are prima facie privileged.

79.  A further consideration arises where the Group Legal Department either itself furnishes advice or transmits advice received by it to third parties  - whether internal in the Three Rivers (No 5) sense or external  - and documents are thereafter created or amended in accordance with that advice. In my judgment the mere fact that a document has been drafted or amended in accordance with advice received, whether from external or in-house legal advisers, does not make that document privileged - it is the advice which is privileged not the product of the use to which it is put.

The in-house Group Legal Department

80.  Whilst it is correct that in-house legal advisers, employed full-time by a single employer, are regarded by the law as in every respect in the same position as those who practice on their own account and that LPP may attach to their communications in their capacities as legal advisers, Lord Denning MR noted, in Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1972] 2 QB 102 at 129:

It does sometimes happen that such a legal adviser does work for his employer in another capacity, perhaps of an executive nature. Their communications in that capacity would not be the subject of legal professional privilege.

81.  Moore-Brick J in United States of America v Philip Morris Inc. observed, pertinently and of particular relevance to the instant matter:

Lawyers do not cease to be regarded as professional legal advisers simply because they are employed by their clients, for example in a company's legal department, but in the nature of things those who are employed in that capacity are more likely than independent practitioners to become involved in aspects of the business that are essentially managerial or administrative in nature. To that extent it is less easy to maintain that all communications passing between them and the company's management attracts privilege. [Emphasis supplied]

82.  It must not be supposed that there is any principle which says that every confidential communication which it is necessary to make in order to carry on the ordinary business of life is protected, Wheeler v Le Marchant at 681.

APPLICATION TO THE SEIZED MATERIAL

83.  Having identified the principles relating to legal advice privilege which are relevant to the present judgment, I now turn to their application to the Seized Materials on the basis that the crime/fraud exception is found not to apply.

84.  In doing so, I have borne in mind a number of matters:

84.1 the plaintiff bears the onus to establish that a particular document is subject to LPP: thus if it has failed to deal with an issue that would deprive the document of protection - for example, by the document being distributed to a third party whom, or whose capacity, it has not identified - then it has failed to discharge that onus;

84.2 the plaintiff is entitled to obtain advice on its dealings and activities generally whether or not they are in any way related to the issues concerning the defendants;

84.3 a number of the items appear to have no direct relevance to the matters apparently to be investigated by the defendants and in this sense the exercise I performed was rendered more difficult by being performed almost in a vacuum: I regarded myself as being concerned with whether a document prima facie was protected by LPP and not its relevance to any possible investigation or admissibility in evidence;

84.4 a number of the documents are internal communications which may well be commercially sensitive but which do not involve the obtaining or receipt of legal advice: commercial sensitivity per se is no ground for exempting them from inspection;

84.5 some of the documents - mainly prepared apparently by Miss Shih - bear an endorsement "Confidential and privileged: prepared in contemplation of litigation". I do not accept, for the reasons given, that the plaintiff is entitled to rely on litigation privilege irrespective of the fact of the endorsement of the document. Notwithstanding that, I have considered whether the plaintiff is entitled to invoke legal advice privilege in respect of those documents.

85.  My decision in respect of the documents will likely prove to most accessible if reduced to schedules attached hereto. The first schedule relates to Seized Material generated pre-7 September 2008 which require adjudication regardless of the crime/fraud exception. The second schedule covers material from 7 September onwards. Each Schedule shows, first, the numbers of the documents to which LPP attaches in their entirety; second, the numbers of the documents to which LPP partially attaches and which portion of the document must be redacted; third, to which of the documents and for what reason LPP does not attach.

86.  The reasons for LPP not applying to a particular document may be divided into five categories. Any given document may fall into more than one category. The categories are:

Category
1	(a)  The document/communication is unrelated to legal advice and not part of a “chain”; or (b)  contains a reference only to the fact that legal advice as been sought/obtained but not to the advice itself;or (c)  there is no indication that the document is anything other than a working draft internal to the plaintiff without input of legal advice.
2	The document relates to, or the communication includes, gathering of information from “third parties” being employees of the plaintiff other than the Group Legal Department.
3	The document relates to, or the communication includes, gathering/receipt of information from or provision to third parties external to the plaintiff.
4	(a)  The document or the communication includes disclosure of  a legal opinion/advice circulated to “third parties” being employees of the plaintiff other than the Group Legal Department or to third parties external to the plaintiff in circumstances which constitute a waiver of LPP; or (b)  a document generated as a result of or amended consequent upon that legal advice.
5	The document is not a document generated or created by the plaintiff or is a response to such a document, with the result that the plaintiff is not entitled to assert privilege.

87.  The spreadsheet which accompanied the printouts and the synopses attached to the envelopes containing the real documents contain minimalist descriptions of the documents which summarise the basis upon which it is said by the plaintiff to be privileged. Whilst I do not accept the plaintiff’s contention as to privilege in each instance, the document descriptions are just sufficient, in my opinion, to give a general indication of their nature should it prove necessary to ascertain the nature of the document although care should be taken to establish the precise nature of the document: for example, there are references to correspondence with firms of solicitors which is claimed to be privileged when, in fact, the correspondence is an engagement letter relating solely to the terms upon which the solicitors will act and which is not privileged. I do not propose to attach the spreadsheet or copies of the envelope labels as schedules to this judgment: they are on the court file and may be referred to if necessary.

88.  To provide individual reasons for the classification of every individual document with a detailed description of each document would result in this decision being delayed inordinately and the product being so large as effectively to be unwieldy. The reason for the classification should be self-evident from the descriptions or, where necessary, a perusal of the document.

89.  Identification of each of the printouts is straight forward as each is contained separately in an envelope bearing a unique number.

90.  That is not such an easy exercise in respect of the real documents. Whilst the various envelopes in which the real documents are contained bear individual numbers, many of those envelopes contain a multiplicity of documents sometimes filed in lever arch files. Where the labels attached to the envelopes have allocated numbers to individual documents within the envelope concerned, I have followed that numbering system: thus, in an envelope numbered, for example, 464, there has been a document numbered 8, I have recorded it in the schedule as 464/8. Where, however, the labels have been less than complete in their descriptions of the contents of the envelopes I have shown the envelope number followed by, where the document is a printout of an e-mail, the date and time of that e-mail: for example, the entry "1014/27.8.2008/8.46" relates to an e-mail dated 27 August 2008 and timed as being dispatched at 8.46 which is contained within the multitude of documents to be found in the envelope bearing the number 1014. Where it is a document other than a printout of an e-mail (for example, a letter or facsimile) the date is followed by a phrase identifying the type of document involved.

91.  There are a number of documents or groups of documents upon which a brief comment, in general terms, may be of assistance in regard to the determination made:

Administrative/executive role: Ms Shih, although the plaintiff’s legal advisor and member of the Group Legal Department, also handled matters which were purely administrative or executive and did not involve the giving of legal advice: documents relating to those tasks are not privileged, some examples being 7227; 7228; 7229.

Audit Committee: a number, but by no means all, of documents which either were addressed to or received from the Audit Committee of the plaintiff or which record events at meetings involving the Chairman of that committee and others. I take the view that although the Audit Committee is a committee of the plaintiff apparently comprised of Independent Non-Executive Directors they do not act in their capacities as members of the Board of Directors but rather as members of the Audit Committee with the result that its members are "third parties" in the sense of Three Rivers (No 5).

One document in particular requires comment: it is a note of three meetings on 19 September 2008 attended by Ms Shih plus a subsequent multi-party telephone call the same day. The first was at the premises of the plaintiff's auditors and involved the Chairman of the Audit Committee and a member of the audit firm each of whom is a third party with the consequence that no privilege attaches to that record. The second was at the plaintiff’s offices with the Chairman of the Audit Committee plus two other members of the audit committee: for the reason given above privilege does not attach to that record. The third was at the offices of Mayer Brown JSM but present was the Chairman of the Audit Committee: he being a third party, privilege does not attach to that communication or the record of it. The telephone call was with the Chairman of the Audit Committee plus the member of the audit firm who had attended the first meeting: as they were both third parties, no privilege attaches to a note of that communication or the record of it. Moreover, none of the records contains legal advice, simply factual statements and possible lines of enquiry to be pursued. The document appears at, at least, items 7275; 7314; 7402. Other documents not subject to privilege involving the Audit Committee 7136; 7137; 7452; 7609; 16256; 16265.

I am satisfied that privilege has not been lost in respect of the remaining documents sent to or exchanged with the Audit Committee.

Chronology prepared by Ms Shih: Miss Shih was requested to prepare a chronology or “sequence of events”. That document merely records her understanding of a series of events, some of which may include reference to attendance at a particular meeting of legal advisers. In my judgment this document is not privileged as, first, this does not appear to me to constitute any form of legal advice; second, and in any event, applying the principle set out in USP Strategies Plc and Another v London General Holdings Ltd and Others I do not regard those references as conferring privilege on the document is; third, it appears to have been circulated outside the Group Legal Department for the input of third parties.

CITIC Group: the plaintiff is CITIC Pacific Limited. There are references to and exchanges with other corporate entities which have the word "CITIC" in their titles. Those corporate entities, as well as others, appear to belong to a "group" of which the plaintiff is a member. They are, however, separate and independent corporate bodies, and thus legal personae, with the consequence that they are third parties insofar as the plaintiff is concerned.

Documents emanating from third parties: privilege has been claimed in respect of documents which, on the information available to me, appear to have emanated from third parties, examples being the draft of an announcement to be issued by DCH  or jointly between a third party and plaintiff (including items 5628; 5667; 5670; 5891; 5995; 6819; 6820; 14134; 14135; 14185). It was submitted by the plaintiff that these documents are privileged because they may contain the input of legal advice. I do not accept that contention: first, as indicated in§79 above, it is the legal advice and not a document generated or amended after the obtaining of/consequent upon that advice which attracts the privilege; second, there is nothing before me to show that it was the plaintiff which obtained that legal advice as opposed to the third party - in which event there cannot be privilege accruing to the plaintiff.

Emails with attachments: where an e-mail attaches a document without the e-mail itself reproducing the contents of the document, I have not regarded the e-mail and documents separately but, rather, regarded them as a composite document and applied the principles enunciated above to the composite document unless the e-mail contains anything other than what might properly be described as merely formal material. To have done otherwise would have been to multiply the number of entries in the schedules enormously. If the attachment to the e-mail is privileged then I have regarded the e-mail itself as privileged: however, if the e-mail itself is privileged but the document not, I have drawn a distinction.

Extraordinary General Meeting 19 December 2008: this was a meeting which was open to the shareholders of the plaintiff. There was some discussion concerning the right of one director to exercise a vote and it seems that a legal practitioner, who was present, expressed an opinion concerning that issue. That opinion was expressed during the course of a public meeting and cannot be privileged: it follows that the minutes are not privileged.

Minutes of meetings of the Board of Directors: in my judgment the minutes of meetings of the Board of Directors  cannot be privileged per se. If they have been prepared in draft form and circulated to others including legal advisers, they are the product of the legal advice rather than the legal advice itself (see §79 above). Where they contain details of legal advice provided, including advice provided at the meeting itself, then that portion which discloses the legal advice falls to be redacted.

Precognition questions: lists of questions were prepared which were to be used to precognise various individuals who were likely to be interviewed by regulatory bodies. Appointments were made for those individuals to meet with and discuss the questions - and, presumably, the answers - with legal advisers to the plaintiff. In my judgment those lists do not constitute legal advice: they are purely speculative in content.

Transcripts of interviews with SFC: items 1662/1; 1669/2; 1687/5; and 1721/4 are transcripts of interviews conducted by the securities and futures commission with three directors of the plaintiff at which a legal adviser was present. In those interviews were conducted by and in the presence of third parties and neither their content nor the records of them therefore can be said to be privileged.

92.  It will be seen that the same document may attract different decisions as to its status in that the original or a copy of it has been found to be privileged whilst another a copy of it has been found not to be privileged. These decisions are not inconsistent: the document may be subject to privilege in one instance but as a result of the manner with which it has been dealt - for example, by being sent to an external third-party for comment, the original privilege may have been lost in respect of another copy of the document.

93.  It further will be apparent from the schedules that a number of documents appear in category 1 and also, for example, in categories 3 and/or 5. Again, this is not an inconsistency. It indicates that my judgment is that the document is not privileged but that, even if it were, the privilege has been lost for the reason shown in the further category to which the document has been allocated.

94.  In particular there are several distinct and different rulings which deal with the redaction of the contents of various minutes of meetings of the Board of Directors. The differences in the nature of redaction result from changes to the content of the minutes as drafts are altered and the minutes put into their final form.

CONCLUSION

95.  In the circumstances, I am satisfied that:

(a)  in respect of all of the Seized Material from 7 September 2008 to 4 February 2009, there is a prima facie case of the existence of both a conspiracy to defraud as well as offences pursuant to s. 21 of the Theft Ordinance, Cap. 210 made out on the papers; and

(b)  that the documents comprising those items of the Seized Material were produced to facilitate or further those processes.

96.  As a result the plaintiff’s claim as set out at §1 (iv)(a) of the re-amended originating summons is:

(A)  in respect of items numbered 464 to 6826 inclusive

(a)  granted in respect of the items appearing in Part A;

(b)  subject to each item being redacted as indicated, dismissed in respect of the items appearing in Part B; and

(c)   dismissed in respect of the items appearing in Part C of  Schedule 1 annexed hereto.

(B)  dismissed in respect of all items onwards from and including item 6834.

Alternatively

97.  In the event that the crime/fraud exception does not apply to the Seized Material the order which I make is that the plaintiff’s claim as set out at §1 (iv)(a) of the re-amended originating summons is:

(a)  granted in respect of the items appearing in Part A;

(b)  subject to each item being redacted as indicated, dismissed in respect of the items appearing in Part B; and

(c)   dismissed in respect of the items appearing in Part C

of Schedules 1 and 2 annexed hereto.

98.  Neither of the orders appearing in §§95 and 96 applies to the Surrendered Material, which was the subject of the order dated 18 March 2011.

99.  Written submissions on costs are to be submitted within 14 days.

SCHEDULE 1

(Materials pre-7 September 2008)

PART A: Documents protected in full by LPP

All documents submitted by the plaintiff for adjudication save for those appearing in Parts B and C hereof.

PART B: Documents protected in part by LPP

The portions of documents detailed hereunder are subject to LPP but the remainder of each document is not with the consequence that the plaintiff is not entitled to the return of the remaining, unredacted, portion of the document:

1472 - redact e-mail 10/4/2007/5.41

5117, 5121, 5122 - redact second sentence.

6437 - redact copies of two e-mails from solicitors.

PART C: Documents which are not protected by LPP

Category 1: 

(a)   The document/communication is unrelated to legal advice and not part of a “chain”; or

(b)  contains a reference only to the fact that legal advice as been sought/obtained but not to the advice itself;or

(c)   there is no indication that the document is anything other than a working draft internal to the plaintiff without input of legal advice.

1418/13.11.2007/17.20;1074; 5149; 5210; 5325; 5326; 5628; 5667; 5670; 5891; 5995; 6487; 6166; 6233; 6467; 6486; 6487; 6488; 6507; 6512; 6513; 6515; 6717; 6724; 6725; 6727; 6747; 6748; 6751; 6819; 6820; 6826; 7998.

Category 2: 

The document relates to, or the communication includes, gathering of information from “third parties” being employees of the plaintiff other than the Group Legal Department.

5616; 5617; 6161; 6166; 6233; 6486; 6487; 6488; 6512; 6513; 6724; 6725; 6727.

Category 3: 

The document relates to, or the communication includes, gathering/receipt of information from or provision to third parties external to the plaintiff.

1418/13.11.2007/17.20; 5616; 5617; 6161; 6233; 6467.

Category 4: 

(a)   The document or the communication includes disclosure of  a legal opinion/advice circulated to “third parties” being employees of the plaintiff other than the Group Legal Department or to third parties external to the plaintiff in circumstances which constitute a waiver of LPP; or

(b)  a document generated as a result of or amended consequent upon that legal advice.

5149; 5210; 5325.

Category 5:

The document is not a document generated or created by the plaintiff or is a response to such a document, with the result that the plaintiff is not entitled to assert privilege.

6161; 6434; 6819; 6820.

SCHEDULE 2

(Material post-7 September 2008)

PART A: Documents protected in full by LPP

All documents submitted by the plaintiff for adjudication save for those appearing in Parts B and C hereof.

PART B: Documents protected in part by LPP

The portions of documents detailed hereunder are subject to LPP but the remainder of each document is not, with the consequence that the plaintiff is not entitled to the return of the remaining, unredacted, portion of the document:

464/8 - redact original message leaving Ms Shih’s reply.

614/7; 615/7; 9191; 9196; 9242 - redact all leaving only the e-mail from Heenan Blaikie.

614/grey tab/4; 615/green tab/4 - redact e-mail 17.9.2008 from Ms Shih and attachment: redact document headed "Principles" and attachment.

614/2; 614/3; 615/2; 615/3 together with the paragraph headed "Regulatory requirements” in the second document; 615/17; 1013/yellow tab 8; 761/4; 761/5; 1124/2; 1124/3; 1152/2; 1248; 1292; 1467/5; 1467/6; 1478/8; 1500/8; 1500/9; 1503/4; 1581/7; 1581/8; 1586/7; 1588/2; 1611/3; 1611/5; 1711/1 - redact item 5 in the draft minutes dated 20/10/2008.

464/2; 614/15; 614/30; 615/17; 615/31; 1013/yellow tab1; 761/1; 761/3; 793; 796/1; 798; 1032/15; 1124/4; 1125/6; 1150; 1152/1; 1251; 1273; 1283; 1392; 1423; 1461/2; 1467/7; 1474/1; 1478/9; 1500/10; 1500/11; 1558/3; 1581/9; 1581/10; 1586/9; 1586/11; 1588/1; 1588/2; 1600; 1610/6; 1610/7; 1611/6; 1611/7; 1621/3; 1625/3; 1653/3; 1668/3; 1687/1; 1691/1; 1721/1; 1193/1; 7447; 7448; 7449; 7467; 7471; 7476; 7477; 7480; 7481; 7491; 7492; 7493; 7494; 7495; 7496; 7497; 7498; 7499; 7505; 7506; 750 7; 7508; 7512; 7543; 7544; 7567; 7569; 7597; 7610; 8258; 8338; 8626; 8627; 8628; 8629; 8633; 8639; 8640 - redact item 6 in the draft Minutes dated 23/9/2008.

615/green tab/2 - redact e-mail from Ms Shih and attachment.

1040/2; 1475; 1504/50; 1586/4 - redact e-mail 6.11.2008/3.23.

1124/5 - redact second to fifth paragraphs inclusive on page 7 together with item 8.

1188 - redact final paragraph of item 6 in minutes of 11/12/2008.

1201; 1467/4; 1478/5; 1500/3; 1581/5; 1581/6; 1582/6; 1582/9; 1597; 1611/2 - redact paragraphs 2 to 4 inclusive in item 4 in minutes of 5/11/2008.

1201; 1295; 1467/2; 1478/4; 1478/6; 1500/3; 1500/4; 1581/3; 1581/4; 1582/3; 1582/7; 1582/9; 1597; 1611/1 - redact item 8 in minutes of 10/11/2008.

1400/5; 1400/6; 1400/10; 1400/11 - redact "details of fees".

1400/12 - redact e-mail 20.3.2008/13.41.

1476 - redact letter 23/12/2008.

1477/7 - redact item 8.

1500/1; 1581/1; 1583/2; 1612/1 - redact final paragraph of item 6 in minutes of 1/12/2008.

1586/2 - redact e-mail 6.11.2008/8.11.

7143; 7149; 7151 - redact all attachments to e-mail.

7363; 7368; 7369; 7371; 7383 - redact the two copies of e-mails to/from solicitors.

7721 - redact the draft and finalised versions of letters regarding obligations.

8184 - redact the preceding e-mails leaving only the most recent.

8198 - redact the e-mail leaving only the agreement.

8644; 8646 - redact earliest e-mail and reply.

8794 -  redact Ms Shih’s response.

9205 - redact e-mail from solicitors.

9272; 9273; 9274; 9275; 9276; 9277; 9278; 9286; 12609; 12925 - redact items 5 and 13 of draft Minutes dated 20/10/2008.

9331; 9364; 9365 - redact e-mail leaving only item 9128.

9354; 9381; 9449; 9561; 9958; 9959; 9962; 9963  - redact item 5 of the draft Minutes.

11374; 11447; 11489 - redact e-mails leaving schedules.

12103 - redact scored-through item 5 commencing page 9 to page 16; second para. Item 4 on page 6 plus remainder of Item 4 from page 20 as well the paragraph beginning “Miss Lena Lee of Clifford Chance...” up to and including page 25 the paragraph concluding “At that point of time he would abstain from voting.”; Item 5 on page 44.

12132; 12135 - redact the draft minutes dated 5/11/2008 as for item 12103. Redact the draft minutes dated 10/11/2008 - Item 4 from page 9 the paragraph with the second sentence starting "Miss Patricia Shih summarised..." to page 10 the paragraph starting "Ms Patricia Shih responded..."; the scored-through passages of Item 5; the first paragraph of Item 8; the scored through passages following on "Close of Meeting".

12136; 12890; 13072 - redact the draft minutes dated 5/11/2008 Item 4 from "the chairman invited Clifford Chance..." on page 2 to "At that point of time, he would abstain from voting" on page 5 and Item 5 on page 14. Redact the draft minutes dated 10/11/2008 as for item 12653.

12156 - redact draft minutes of 10/11/2008 as for item 12132.

12229; 12235; 12236; 12246; 12247; 12248; 12250; 12251; 12263; 12395; 12560; 12566 - redact attachments to e-mail from Vernon Moore.

12627; 12628 - redact solicitors e-mail and draft.

12653; 12663; 12664; 12922; 13077; 13078; 13290 - redact the draft minutes dated 10/11/2008 - Item 4 from page 6 the paragraph with the second sentence starting "Miss Patricia Shih summarised..." to page 7 the paragraph starting "Ms Patricia Shih responded..."; Item 8.

13621; 13662; 13674 - redact all e-mails save that dated 28 November 2008.

13904; 13936 - redact the column in the "Position Summary" which sets out the solicitors’ opinions.

14173; 14174; 14249; 14250; 14251; 14252; 14256; 14257; 14258; 14259; 14260 - redact Item 13 in Section E of Conditions Subsequent Schedule.

14175 - redact e-mail from solicitors.

14177 - redact item 6 of board meeting minutes of 23/9/2008 and e-mail of 6/10/2008 and attachments to it.

14178; 16316 - redact item 6 of board meeting minutes of 23/9/2008.

14238; 14244; 14248 - redact under entry for 23 September from "The lawyer was of the view..." to "... the company could be saved" inclusive.

PART C: Documents which are not protected by LPP

Category 1: 

(a)   The document/communication is unrelated to legal advice and not part of a “chain”; or

(b)  contains a reference only to the fact that legal advice as been sought/obtained but not to the advice itself; or

(c)   there is no indication that the document is anything other than a working draft internal to the plaintiff without input of legal advice.

464/1; 464/3; 464/4; 464/5; 464/6; 464/7; 464/18 (the e-mail); 464/24; 464/27; 464/30; 464/40; 464/41; 464/49; 464/53; 464/56; 464/57; 464/60; 464/61; 467/1; 467/11; 584/7; 584/unnumbered documents being convertible bond memo and an untitled document; 608/1; 608/2; 608/3; 608/7; 608/8; 608/9; 608/10; 608/11; 608/12; 608/13; 612/index; 612/list 1/tab 01; 612/list 1/tab 02; 612/list 1/tab 03; 612/list 1/tab 04; 612/list 1/tab 05; 612/list 1/tab 06; 612/list 6/tab 01; 612/list 6/tab 02; 612/list 6/tab 03; 612/list 6/tab 04; 612/list 6/tab 05; 614/1; 614/4; 614/5; 614/6; 614/8; 614/17; 614/21; 614/22; 614/23; 614/24; 614/25; 614/27; 614/31; 614/green tab/1; 614/blue tab/1; 614/grey tab/1; 614/grey tab; 615/1; 615/4; 615/5; 615/6; 615/80; 615/9; 615/10; 615/19; 615/23; 615/24; 615/25; 615/26; 615/27; 615/32; 615/blue tab/1; 615/green tab/1; 615 green tab/5; 615/green tab/6; 617/2; 617/tab-correspondence/1; 620/1; 620/2; 620/3; 636/1 - the covering letter only; 760 - the covering letter only; 762; 771/1 - all the documents; 771/2; 771/3; 783/1; 783/2; 783/3; 783/4; 783/6; 783/7; 783/8; 783/9; 783/10; 791; 796/2; 796/3; 797/2; 797/5; 875/1- with minutes of meetings of  5.11.2008 and 10.11.2008; 886 - documents styled "Grouping of Leverage FX" and "Analysis of Realised Loss"; 893; 953; 964/printouts of ss. 384, 298 and 277, Cap. 571; 964/calendar for September 2008; 964/"observations on the finance department"; 964/recognition document of Kwok; 964/"AUD TRF contracts restructuring "; 964/appendix 1"; 964/"business trip" (x2); 964/"Record of position adjustment"; 967/4; 1013/3; 1013/green tab/1; 1013/red tab 9/1; 1013/red tab 10/1; 1013/green tab 11/1; 1013/pink tab 13/1; 1014/27.8.2008/08.46; 1014/28.8.2008/10.35; 1014/3.9.2008/11.53; 1014/3.9.2008/letter JSM/HKSE; 1014/3.9.2008/letter JSM/HKSE; 1014/8.9.2008/3.54; 1014/8.9.2008/letter JSM/HKSE; 1014/.9.2008/fax HKSE/JSE; 1014/19.9.2008/8.23; 1014/19.9.2008/8.24; 1014/19.9.2008/11.38; 1014/20.9.2008/6.34; 1014/22.9.2008/6.43; 1014/22.9.2008/6.54; 1014/22.9.2008/6.54; 1014/22.9.2008/Agenda and documents; 1014/23.9.2008/11.59; 1014/23.9.2008/1.49; 1014/24.9.2008/8.08; 1014/24.9.2008/11.31; 1014/2.10.2008/10.31; 1014/2.10.2008/10.31; 1014/3.10.2008/engagement letter JSM to plaintiff; 1014/6.10.2008/12.53; 1014/6.10.2008/12.58; 1014/10.10.2008/5.05; 1014/12.10.2008/12.25; 1014/13.10.2008/10.13; 1014/15.10.2008/2.43; 1014/15.10.2008/2.58; 1014/17.10.2008/2.59; 1014/17.10.2008/3.19; 1014/19.10.2008/11.38; 1014/19.10.2008/12.23; 1014/19.10.2008/12.25; 1014/19.10.2008/2.00; 1014/19.10.2008/4.33 but redact para. 6 of minutes of 23.10.2008; 1014/21.10.2008/6.56; 1014/21.10.2008/110.59; 1032/8; 1032/9; 1032/10; 1032/11; 1032/12; 1032/13; 1032/14; 1044/4/e-mail 22.12.2008/14.19; 1066/1; 1066/2; 1073/6; 1073/8; 1073/9; 1073/10; 1077/unattributed document "Observation on finance department"; 1078/unattributed document "Observation on finance department"; 1079/1; 1079/2; 1080; 1086/7; 1124/1; 1124/23; 1124/24; 1125/1; 1125/4; 1125/8; 1125/9; 1152/3; 1152/4; 1152/6; 1152/7; 1201/draft minutes of audit committee; 1201/document dated 17.11.2008; 1216; 1247; 1298; 1299; 1324; 1392/draft questions and answers document; 1394/analysis of FX contracts; 1395/4; 1395/5; 1395/7; 1395/9; 1395/10; 1400/2; 1400/7; 1400/8; 1400/9; 1401; 1402/1; 1402/2; 1402/4; 1416/1; 1416/2; 1416/8; 1416/11; 1416/12; 1417/6; 1417/7; 1417/15; 1417/16; 1418/3; 1418/5; 1418/6; 1418/7; 1418/8; 1418/9; 1418/10; 1418/11; 1418/12; 1418/14; 1418/17; 1418/18; 1418/23; 1418/26; 1418/42; 1418/45; 1418/50; 1418/53; 1418/55; 1418/13.10.2008/10.10; 1421/1; 1421/2; 1426/2; 1426/7; 1428/15; 1429/1; 1429/2; 1429/3; 1429/4; 1429/5; 1429/6; 1460; 1466/3; 1466/6; 1467/1; 1467/3; 1474/2; 1475/3; 1476/2; 1477/3; 1477/8; 1477/9; 1477/10; 1478/2; 1478/7; 1479/4; 1479/11; 1479/12; 1479/13; 1480/1; 1480/2; 1482/3; 1482/4; 1484/1/agreement annexed to e-mail; 1484/2; 1484/3/e-mail and agreement; 1486/1; 1486/2; 1486/3; 1486/4; 1486/6; 1486/7; 1486/8; 1489; 1492/2; 1492/5; 1500/2; 1500/5; 1500/6; 1500/7; 1502/1; 1502/2; 1502/3; 1502/4; 1502/5; 1502/6; 1502/7; 1502/8; 1502/9; 1502/10; 1502/11; 1502/12; 1502/13; 1502/14; 1502/15; 1502/16; 1502/17; 1502/18; 1502/19; 1502/20; 1502/21; 1502/22; 1503/1; 1503/3; 1503/5; 1503/6; 1503/7; 1503/9; 1503/10; 1503/11; 1503/12; 1503/15; 1503/20; 1503/21; 1503/22; 1503/23; 1503/24; 1503/26; 1503/27; 1503/30; 1503/33; 1503/34; 1503/35; 1504/1; 1504/2; 1504/3; 1504/9; 1504/10; 1504/11; 1504/12; 1504/14; 1504/15; 1504/16; 1504/17; 1504/18; 1504/20; 1504/23; 1504/24; 1504/27; 1504/30; 1504/34; 1504/39; 1504/40; 1504/54; 1504/59; 1504/60; 1504/61; 1504/63; 1504/64; 1504/65; 1504/66; 1504/67; 1504/68; 1504/69; 1504/70; 1504/73; 1504/74/letter from SFC; 1504/87; 1504/91/document headed "Documentation"; 1504/92; 1504/93; 1505/11; 1505/14; 1505/15; 1505/18; 1549/18 (author not identified); 1549/2; 1550/1; 1550/2; 1550/3; 1558/1; 1558/2; 1562/4; 1562/9; 1562/10; 1562/12; 1563/1; 1564; 1568/1; 1568/2; 1568/3; 1568/4; 1571/1; 1571/2; 1571/3; 1573/1; 1573/2; 1573/3; 1574/1; 1574/2; 1576; 1578/1; 1578/2; 1579; 1582/1; 1582/2; 1582/4; 1582/5; 1582/8; 1582/10; 1583/3; 1584; 1586/1; 1586/5; 1586/6; 1586/8; 1586/13; 1587; 1611/4; 1612/2; 1613; 1614; 1621/4; 1621/5; 1621/hand written note "Thank you Mr. Chairman"; 1623/1; 1623/4; 1263/5; 1623/9; 1623/10; 1623/11; 1625/1; 1628; 1653/1; 1653/2; 1653/4; 1662; 1669/1; 1669/2; 1687/5; 1721/4; 6847; 6884; 6866; 6885; 6889; 7095; 7107; 7108; 7109; 7123; 7136; 7137; 7150; 7158; 7161; 7168; 7174; 7199; 7201; 7227; 7228; 7229; 7231; 7251; 7252; 7271; 7275; 7314; 7405; 7452; 7503; 7522; 7526; 7528; 7529; 7530; 7531; 7582; 7588; 7589; 7603; 7609; 7619; 7620; 7643; 7651; 7691; 7692; 7693; 7701; 7707; 7713; 7722; 7723; 7724; 7725; 7726; 7737; 7738; 7739; 7740; 7742; 7746; 7747; 7748; 7749; 7750; 7752; 7753; 7754; 7755; 7756; 7757; 7758; 7761; 7762; 7763; 7767; 7768; 7769; 7777; 7778; 7779; 7785; 7796; 7797; 7798; 7799; 7800; 7821; 7822; 7824; 7825; 7829; 7830; 7832; 7836; 7837; 7838; 7839; 7840; 7841; 7842; 7844; 7845; 7846; 7847; 7863; 7866; 7867; 7868; 7874; 7878; 7879; 7880; 7882; 7890; 7891; 7892; 7893; 7894; 7895; 7907; 7908; 7911; 7912; 7913; 7914; 7915; 7916; 7918; 7922; 7923; 7925; 7927; 7928; 7931; 7932; 7933; 7934; 7936; 7937; 7938; 7940; 7941; 7950; 7951; 7953; 7954; 7955; 7956; 7959; 7960; 7962; 7976; 7977; 7980; 7981; 7982; 7984; 7988; 7989; 7997; 8001; 8003; 8004; 8006; 8007; 8008; 8010; 8012; 8013; 8014; 8015; 8016; 8017; 8018; 8019; 8031; 8032; 8033; 8034; 8035; 8036; 8038; 8039; 8040; 8041; 8043; 8049; 8056; 8057; 8058; 8059; 8065; 8070; 8072; 8073; 8076; 8077; 8078; 8079; 8081; 8083; 8084; 8085; 8086; 8087; 8097; 8099; 8110; 8142; 8143; 8145; 8147; 8148; 8154; 8155; 8158; 8159; 8161; 8163; 8164; 8165; 8170; 8186; 8190; 8191; 8192; 8193; 8195; 8210; 8211; 8218; 8230; 8232; 8238; 8248; 8249; 8252; 8253; 8259; 8261; 8262; 8274; 8275; 8276; 8277; 8292; 8297; 8299; 8302; 8303; 8308; 8329; 8332; 8333; 8334; 8336; 8337; 8339; 8341; 8344; 8355; 8365; 8367; 8374; 8375; 8380; 8381; 8385; 8387; 8388; 8390; 8395; 8404; 8405; 8406; 8407; 8408; 8411; 8412; 8413; 8414; 8415; 8417; 8419; 8420; 8421; 8439; 8444; 8445; 8446; 8447; 8448; 8449; 8454; 8456; 8457; 8459; 8464; 8473; 8476; 8484; 8485; 8486; 8488; 8490; 8492; 8497; 8498; 8499; 8500; 8501; 8502; 8503; 8504; 8505; 8506; 8507; 8509; 8510; 8511; 8513; 8516; 8517; 8518; 8519; 8520; 8521; 8522; 8525; 8526; 8527; 8528; 8529; 8530; 8531; 8537; 8538; 8543; 8544; 8545; 8546; 8547; 8548; 8549; 8550; 8551; 8552; 8553; 8554; 8555; 8556; 8557; 8558; 8559; 8561; 8562; 8563; 8564; 8565; 8566; 8567; 8568; 8569; 8570; 8571; 8572; 8573; 8574; 8575; 8576; 8577; 8578; 8579; 8580; 8581; 8582; 8583; 8584; 8585; 8586; 8587; 8588; 8589; 8590; 8591; 8592; 8593; 8594; 8595; 8596; 8597; 8598; 8599; 8600; 8601; 8602; 8603; 8604; 8605; 8606; 8607; 8608; 8609; 8610; 8611; 8612; 8613; 8614; 8615; 8616; 8617; 8618; 8619; 8620; 8621; 8622; 8623; 8624; 8625; 8647; 8651; 8652; 8653; 8654; 8655; 8656; 8657; 8658; 8659; 8678; 8679; 8680; 8689; 8695; 8696; 8701; 8703; 8705; 8706; 8714; 8715; 8736; 8778; 8782; 8783; 8784; 8810; 8811; 9127; 9128; 9173; 9174; 9176; 9177; 9179; 9181; 9222; 9232; 9336; 9359; 9363; 9382; 9383; 9406; 9413; 9414; 9417; 9419; 9432; 9438; 9439; 9441; 9446; 9450; 9452; 9453; 9454; 9456; 9490; 11231; 11232; 11318; 11439; 11440; 11468; 11488; 11490B; 11491; 11492; 11522; 11544; 11545; 11546; 11550; 11556; 11557; 11558; 11744; 11745; 11994; 11995; 12010; 12011; 12033; 12035; 12084; 12143; 12144; 12145; 12146; 12147; 12149; 12150; 12151; 12171; 12199; 12200; 12202; 12226; 122 34; 12272; 12285; 12286; 12306; 12311; 12312; 12396; 12429; 12440; 12450; 12451; 12452; 12461; 12467; 12541; 12549; 12550; 12551; 12552; 12553; 12554; 12600; 12611; 12788; 12926; 12987; 13008; 13033; 13035; 13036; 13224; 13669; 14128; 14129; 14130; 14134; 14135; 14146; 14147; 14148; 14150; 14151; 14152; 14170; 14181; 14185; 14198; 14217; 14218; 14219; 14221; 14222; 14233; 14235; 14236; 14237; 14261; 14262; 14264; 14265; 14266; 14267; 14274; 14275; 14276; 14277; 14297; 16256; 16265; 16367; 16372; 16374; 16391; 16399; 16400; 16401; 16421; 16425; 16426; 16427; 16429; 16430; 16434; 16465; 16467; 16468; 16469; 16470; 16472; 16473; 16474; 16475; 16478; 16479; 16482; 16488; 16492; 16496.

Category 2: 

The document relates to, or the communication includes, gathering of information from “third parties” being employees of the plaintiff other than the Group Legal Department.

467/1; 467/4; 467/11; 584/1; 584/2; 584/3; 584/4; 584/5; 584/6; 584/7; 608/4; 608/5; 608/6; 608/7; 608/8; 608/9; 608/10; 608/11; 608/12; 614/1; 614/5; 614/6; 614/17; 614/22; 614/23; 614/24; 614/25; 614/27; 614/31; 614/blue tab/1; 614/grey tab/3; 615/3; 615/5; 615/6; 615/10; 615/19; 615/24; 615/25; 615/26; 615/27; 615/32; 615/blue tab/1; 615/green tab/1; 615/green tab/3; 615/green tab/6; 783/1; 783/2; 783/3; 783/4; 783/6; 783/8; 783/9; 783/10; 783/12; 953; 964/1; 1013/red tab 10/1; 1013/pink tab 13/1; 014/27.8.2008/08.46; 1014/27.8.2008/18.31; 1014/27.8.2008/19.40; 1014/28.8.2008/10.35; 1014/29.8.2008/9.02; 1014/3.9.2008/11.53; 1014/3.9.2008/letter JSM/HKSE; 1014/3.9.2008/letter JSM/HKSE; 1014/8.9.2008/3.54; 1014/22.9.2008/6.43; 1014/24.9.2008/8.08; 1014/24.9.2008/8.27; 1014/15.10.2008/2.19; 1014/19.10.2008/11.38; 1014/19.10.2008/12.23; 1014/19.10.2008/12.25; 1014/22.10.2008/12.21; 1032/8; 1032/9; 1032/10; 1032/11; 1032/12; 1032/13; 1032/14; 1035/1; 1035/3; 1079/2; 1308/1; 1086/1; 1086/2; 1086/3; 1086/4; 1086/5; 1086/6; 1124/18; 1124/19; 1124/23; 1124/24; 1395/12; 1395/13; 1395/14; 1395/15; 1395/16; 1402/1; 1402/2; 1416/13; 1418/35; 1418/38; 1418/39; 1418/40; 1418/48; 1418/49; 1418/51; 1418/55; 1421/3; 1424/2; 1424/3; 1424/4; 1424/5; 1428/1; 1428/2; 1428/4; 1428/5; 1428/6; 1428/7; 1428/8; 1428/9; 1428/11; 1428/12; 1428/13; 1428/15; 1428/16; 1428/17; 1428/18; 1428/19; 1432; 1473; 1477/2; 1477/3; 1477/5; 1477/6; 1479/1; 1479/2; 1479/3; 1479/4; 1479/5; 1479/6; 1479/7; 1479/9; 1479/10; 1479/12; 1479/13; 1480/1; 1482/1; 1482/2; 1482/3; 1483; 1486/2; 1486/4; 1486/6; 1486/7; 1486/8; 7 1492/1; 1502/1; 1502/3; 1502/4; 1502/5; 1502/6; 1502/9; 1502/10; 1502/11; 1502/12; 1502/13; 1502/14; 1502/15; 1502/16; 1502/17; 1502/18; 1502/19; 1502/20; 1502/21; 1502/22; 1502/24; 1503/1; 1503/6; 1503/7; 1503/30 ; 1504/1; 1504/2; 1504/3; 1504/4; 1504/5; 1504/6; 1504/8; 1504/9; 1504/10; 1504/11; 1504/14; 1504/15; 1504/16; 1504/17; 1504/18; 1504/23; 1504/24; 1504/26; 1504/28; 1504/29; 1504/30; 1504/31; 1504/32; 1504/33; 1504/34; 1504/35; 1504/36; 1504/37; 1504/38; 1504/39; 1504/40; 504/41; 1504/45; 1504/47; 1504/48; 1504/49; 1504/51; 1504/54; 1504/55; 1504/58; 1504/59; 1504/60; 1504/61; 1504/62; 1504/63; 1504/64; 1504/65; 1504/66; 1504/67; 1504/69; 1504/70; 1504/73; 1504/75; 504/76; 504/78; 1504/79; 1504/80; 1504/81; 1504/82; 1504/83; 1504/84; 1504/85; 1504/86; 1504/89; 1504/90; 1504/91; 1550/3; 1558/1; 1562/3; 1562/9; 1562/10; 1562/12; 1563/1; 1573/3; 1574/2; 1576; 1579; 1621/2; 1623/5; 1623/9; 1623/10; 1625/1; 7095; 7109; 7114; 7136; 7137; 7150; 7167; 7174; 7199; 7229; 7251; 7271; 7526; 7530; 7531; 7582; 7588; 7589; 7603; 7609; 7643; 7651; 7691; 7692; 7693; 7738; 7739; 7740; 7742; 7746; 7747; 7748; 7749; 7750; 7752; 7753; 7754; 7755; 7756; 7757; 7758; 7761; 7762; 7763; 7767; 7768; 7769; 7778; 7779; 7796; 7797; 7798; 7799; 7800; 7821; 7822; 7824; 7825; 7829; 7830; 7832; 7836; 7837; 7838; 7839; 7840; 7841; 7842; 7844; 7845; 7846; 7847; 7863; 7867; 7868; 7878; 7882; 7890; 7891; 7892; 7893; 7894; 7895; 7907; 7908; 7911; 7912; 7913; 7914; 7915; 7932; 7933; 7934; 7936; 7937; 7960; 7962; 7977; 7980; 7981; 7982; 7984; 8004; 8006; 8007; 8008; 8010; 8012; 8013; 8015; 8016; 8017; 8018; 8019; 8038; 8039; 8040; 8041; 8043; 8056; 8057; 8058; 8059; 8065; 8070; 8072; 8073; 8076; 8077; 8078; 8079; 8081; 8083; 8184; 8084; 8085; 8086; 8087; 8097; 8099; 8142; 8143; 8145; 8147; 8148; 8190; 8191; 8192; 8193; 8195; 8218; 8230; 8232; 8238; 8248; 8249; 8262; 8329; 8332; 8333; 8334; 8336; 8365; 8367; 8381; 8385; 8387; 8388; 8390; 8404; 8405; 8406; 8407; 8408; 8411; 8412; 8413; 8414; 8415; 8419; 8439; 8444; 8445; 8446; 8447; 8448; 8449; 8454; 8456; 8457; 8459; 8476; 8484; 8485; 8486; 8488; 8490; 8492; 8497; 8500; 8501; 8509; 8510; 8511; 8516; 8517; 8518; 8519; 8520; 8521; 8522; 8525; 8526; 8527; 8528; 8529; 8530; 8531; 8537; 8538; 8543; 8544; 8545; 8546; 8547; 8548; 8549; 8550; 8551; 8552; 8553; 8554; 8555; 8556; 8557; 8558; 8559; 8561; 8562; 8563; 8564; 8572; 8573; 8574; 8575; 8576; 8577; 8578; 8579; 8580; 8581; 8603; 8604; 8605; 8606; 8607; 8608; 8609; 86 10; 8611; 8612; 8613; 8614; 8615; 8616; 8617; 8618; 8619; 8620; 8621; 8622; 8623; 8624; 8625; 8647; 8651; 8678; 8679; 8680; 8689; 8696; 8701; 8703; 8705; 8706; 8714; 8715; 9127; 9128; 9176; 9177; 9179; 9181; 9336; 9359; 9363; 9382; 9383; 9438; 9439; 9441; 11490; 11544; 11545; 11546; 11550; 11556; 11557; 11558; 11744; 11745; 12010; 12011; 12143; 12144; 12145; 12146; 12147; 12149; 12150; 12151; 12171; 12226; 12272; 12285; 12306; 12311; 12312; 12440; 12450; 12452; 12541; 12600; 12788; 12926; 14261; 14262; 16391; 16399; 16425; 16426; 16429; 16430; 16469; 16472; 16474; 16475; 16478; 16479; 16482; 16488.

Category 3: 

The document relates to, or the communication includes, gathering/receipt of information from or provision to third parties external to the plaintiff.

464/26/the annexures to the file note, the former being privileged; 464/27; 464/33; 464/54; 464/55; 464/59; 464/34; 584/1; 584/2; 584/4; 584/5; 584/6; 608/2; 608/4; 608/5; 612/list 1/tab 09; 614/21; 614/23; 614/24; 614/27; 614/31; 615/23; 615/25; 615/26; 615/27; 615/32; 771/1/ the memo from the finance director and the minutes of 10.11.2008; 796/3; 964/document "Target Redemption" (x 2); 1014/27.8.2008/08.46; 1014/27.8.2008/18.31; 1014/29.8.2008/9.02; 1014/3.9.2008/11.53; 1014/3.9.2008/letter JSM/HKSE; 1014/3.9.2008/letter JSM/HKSE; 1014/8.9.2008/3.54; 1014/8.9.2008/letter JSM/HKSE; 1014/.9.2008/fax HKSE/JSE; 1014/19.9.2008/8.23; 1014/20.9.2008/6.34; 1014/22.9.2008/6.54; 1014/17.10.2008/3.19; 1044/4 /e-mail  22.12.2008/14.19; 1124/6; 1124/7; 1124/8; 1124/9; 1124/10; 1124/11; 1124/15; 1124/16; 1124/17; 1124/18; 1124/19; 1124/20; 1124/23; 1124/24; 1152/5; 1201/draft minutes of audit committee; 1201/document dated 17.11.2008; 1395/4; 1400/1; 1400/2; 1402/2; 1418/5; 1418/8; 1418/9; 1418/10; 1421/3; 1424/2; 1424/3; 1424/4; 1424/5; 1426/7; 1428/6; 1428/7; 1428/8; 1428/9; 1428/11; 1428/12; 1428/13; 1428/16; 1428/17; 1428/18; 1428/19; 1479/3; 1479/7; 1482/1; 1482/2; 1482/3; 1484/7; 1486/4; 1486/6; 1486/7; 1486/8; 1500/6; 1502/7;1503/10; 1503/12; 1503/21; 1503/23; 1503/24; 1503/26; 1503/27; 1504/9; 1504/10; 1504/12; 1504/15; 1504/16; 1504/18; 1504/20; 1504/22; 1504/70; 1504/71; 1504/72; 1504/73; 1504/75; 1504/76; 1504/80; 1504/81; 1504/82; 1505/11; 1505/18; 1562/8; 1574/6; 1575/1; 1575/2; 1575/3; 1576; 1580; 1582/1; 1621/4; 1623/3; 1623/6; 1623/7; 1623/8; 6847; 7002; 7114; 7136; 7137; 7140; 7167; 7271; 7303; 7503; 7526; 7528; 7529; 7530; 7531; 7582; 7588; 7589; 7619; 7620; 7651; 7691; 7692; 7693; 7722; 7723; 7726; 7750; 7755; 7759; 7763; 7779; 7798; 7799; 7829; 7866; 7953; 7954; 7955; 7956; 7954; 7955; 7956; 7959; 7976; 8014; 8031; 8099; 8192; 8210; 8211; 8218; 8261; 8262; 8277; 8297; 8298; 8301; 8302; 8333; 8336; 8337; 8385; 8390; 8404; 8405; 8406; 8407; 8408; 8412; 8413; 8417; 8444; 8445; 8446; 8447; 8448; 8449; 8454; 8456; 8457; 8459; 8476; 8485; 8490; 8517; 8546; 8736; 9300; 9363; 9446; 9453; 9454; 12171; 12396; 12429; 12440; 12549; 12550; 12551; 12552; 12553; 12554; 12600; 12987; 13008; 13033; 13224; 14147; 14150; 14217; 14221; 14222; 14233; 14236; 14237; 14264; 16399; 16425.

Category 4: 

(a)   The document or the communication includes disclosure of  a legal opinion/advice circulated to “third parties” being employees of the plaintiff other than the Group Legal Department or to third parties external to the plaintiff in circumstances which constitute a waiver of LPP; or

(b)  a document generated as a result of or amended consequent upon that legal advice.

467/4; 584/1; 584/2; 584/3; 584/4; 584/5; 58/6; 584/7; 608/2; 608/5; 608/6; 608/10; 614/01; 614/8; 615/1; 615/8; 615/green tab/3; 761/2; 771/1/the minutes of 5.11.2008 and 10.11. 2008; 783/5; 783/12; 791; 795/1; 795/2; 795/3; 796/2; 796/3; 797/2; 797/3; minutes of 5.11.2008 and 10.11. 2008 attached to 875/1; 886/e-mails and draft agreement; 893; 953; 964/5; 967/1; 967/2; 967/3; 967/4; 1014/27.8.2008/18.31; 1014/27.8.2008/19.40; 1014/29.8.2008/9.02; 1014/6.10.2008/12.58; 1014/6.10.2008/4.38; 1014/8.10.2008/3.07; 1014/9.10.2008/10.53; 1014/11.10.2008/1.24; 1014/11.10.2008/1.24; 1014/11.10.2008/2.32; 1014/11.10.2008/7.19; 1014/11.10.2008/7.48; 1014/11.10.2008/8.32; 1014/11.10.2008/11.56; 1014/12.10.2008/12.40; 1014/14.10.2008/5.18; 1014/15.10.2008/11.30; 1035/1; 1035/2; 135/3; 1040/10; 1044/4/ e-mail  22.12.2008/14.19; 1063/3; 1066/5; 1069; 1071/1; 1071/2; 1072; 1073/6; 1073/8; 1073/9; 1073/10; 1082; 1083; 1086/1; 1086/2; 1086/3; 1086/4; 1086/5; 1086/6; 1086/7; 1125/2; 1125/3; 1125/4; 1125/8; 1125/9; 1178; 1182; 1395/1; 1395/6; 1395/8; 1395/9; 1395/13; 1395/15; 1395/16; 1400/3; 1400/4; 1400/13; 1402/2; 1402/3; 1402/4; 1416/30; 1418/13; 1418/35; 1418/36; 1418/37; 1418/43; 1418/46; 1418/49; 1418/52; 1426/2; 1426/5; 1428/1; 1428/2; 1428/4; 1428/5; 1428/6; 1428/7; 1432; 1457/1; 1457/2; 1457/3; 1466/3; 1466/4; 1473; 1477/1; 1477/2; 1477/4; 1477/5; 1477/6; 1478/1; 1478/3; 1479/1; 1479/2; 1479/4; 1479/5; 1479/6; 1479/7; 1479/9; 1479/10; 1479/12; 1479/13; 1481; 1482/1; 1483/2; 1484/1/e-mail and agreement annexed; 1484/2; 1484/3/e-mail and agreement annexed; 1486/1; 1486/3; 1502/1; 1502/2; 1502/3; 1502/4; 1502/5; 1502/6; 1502/9; 1502/10; 1502/11; 1502/12; 1502/13; 1502/14; 1502/15; 1502/16; 1502/17; 1502/18; 1502/19; 1502/20; 1502/21; 1502/22; 1502/24; 1503/2; 1503/14; 1505/1; 1505/2; 1505/3; 1505/4; 1505/5; 15065/6; 1505/7; 1505/8; 1505/9; 1505/10; 1505/11; 1505/12; 1505/13; 1505/17; 1505/18; 1505/20; 1505/21; 1505/22; 1505/23; 1505/24; 1505/25; 1506/1; 1506/2; 1553; 1556/1; 1556/2; 1558/1; 1558/2; 1562/3; 1563/2; 1563/3; 1571/3; 1573/1; 1573/2; 1574/5; 1580; 1621/2; 1504/1; 1504/2; 1504/3; 1504/4; 1504/5; 1504/6; 1504/7; 1504/8: 1504/9; 1504/10; 1504/11; 1504/21; 1504/22; 1504/25; 1504/26; 1504/28; 1504/29; 154/31; 1504/32; 1504/33; 1504/35; 504/36; 504/37; 504/38: 504/39; 1504/41; 1504/43; 1504/45; 1504/47; 1504/48; 504/49; 1504/51; 1504/55; 1504/57; 1504/58; 1504/62; 1504/63; 1504/70; 1504/71; 1504/72; 1504/74; 1504/75; 504/76; 504/77; 1504/78; 1504/79; 1504/80; 1504/81; 1504/82; 1504/83; 1504/84; 1504/85; 1504/86; 1504/91.

Category 5:

The document is not a document generated or created by the plaintiff or is a response to such a document, with the result that the plaintiff is not entitled to assert privilege.

464/18; 612/list 1/tab 09; 477; 478; 479; 762; 886 - e-mails and draft agreement; 953; 954; 964/22.9.2008/4.11; 964/letter 4.11.2008 SFC to Kwok; 967/3; 1044/1; 1044/2; 1044/3; 1044/4 save for e-mail  22.12.2008/14.19; 1082; 6866; 6885; 1124/21/letter from attorneys; 1125/1; 1125/3; 1426/1; 1426/3; 1426/4; 1426/9; 1426/10; 1426/11; 1426/12; 1429/7; 1429/8; 1429/9; 1433/1; 1433/2; 1435/1; 1457/1; 1457/2; 1457/3; 1458/1; 1458/2; 1458/3; 1458/4; 1458/5; 1466/1; 1466/2; 1466/7; 1466/8; 1484/1/e-mail; 1484/3/e-mail; 1484/4; 1484/5; 1484/6; 1484/18.11.2008; 1484/17.11.2008/3.48; 1496; 1505/18; 1506/1; 1506/2; 1558/2; 1562/12; 1563/3; 1574/3; 1574/7; 14134; 14135;14185.