TSE NGAR FONG v. POON BUN CHAK

IN THE COURT OF APPEAL

1997, No. 89

(Civil)

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J U D G M E N T

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Nazareth Atg CJ :

1. This is an interlocutory appeal from the order of Deputy Judge Carlson made in the course of a hearing of the wife's petition for ancillary relief. The respondent husband is said to be a man of very considerable wealth. A substantial lump sum award is at stake. The wife was being cross-examined on her expenditure and she asked to refer to two diaries she had kept to refresh her memory. She was given leave over the objections of counsel for the husband.

2. Counsel for the husband then asked for discovery or inspection of the diaries. This time the wife's counsel objected but the judge ordered inspection. It is against that order that the wife now appeals to this Court.

3. Having regard to the view to which I have come, having heard counsel before us, I do not propose to go into the facts in any great detail.

4. The objection made to the Deputy Judge below by counsel for the wife was that the documents were subject to legal professional privilege. It transpires that the claimed factual basis of this was that her solicitors had asked her to keep a record of her expenditure for the purposes of the litigation as a result of which she kept the diaries.

5. The judge, it is reasonably plain from his short ruling and from the transcript of the notes of the proceedings, took the view that legal professional privilege did not attach to the diaries, and it seems that this may have been because he regarded the claim to privileges as a false point, see p.56 of the transcript. As a result of this, it seems to me that he did not really consider the claim for legal professional privilege, either in relation to its legal basis or its factual basis.

6. Coming then to the submissions before us, Mr Geoffrey Ma QC, who did not appear below and appears before us with Miss Priscilla Wong, relies upon Guinness Peat Properties Ltd and Another v. Fitzroy Robinson Partnership [1987]1 WLR 1027 where it was held at p.1028

"... that in order to decide whether the letter qualified for legal privilege its dominant purpose had to be ascertained and that dominant purpose did not necessarily fall to be ascertained by reference only to the intention of the actual composer of the letter but by an objective view of the whole of the evidence, particularly by reference to the intention of the insurers who procured its genesis; that so viewed the dominant purpose was to produce a letter of notification which would be used in order to obtain legal advice or to conduct or aid in the conduct of litigation which was at the time of its production in reasonable prospect; and that accordingly the letter was originally privileged in the hands of the defendants." (Emphasis supplied)

7. I pause here to refer to the application before us by way of summons to introduce additional evidence in the form of the affirmation of Mr Edward Chan, the wife's solicitor and also an affidavit from the wife. We received this evidence de bene esse and without setting out its terms, it suffices to say that what is there presented is the evidence of the two deponents, which appears to provide a basis that fits squarely within the criteria in Guinness Peat v. Fitzroy Robinson for legal privilege.

8. For her part, Miss Jacqueline Leong QC, who appears for the husband with Mr David Pilbrow, resists the application. She also does not concede that dictum in Guinness Peat v. Fitzroy Robinson as reflecting the true legal position. What is of relevance is that she submits that if such evidence, as is embodied in the two affidavits, is to be admitted, then the facts ought to be ascertained not by this Court but by the judge below who would be able to address the matter rather more effectively.

9. Mr Ma does not resist that submission. It seems to me that since the factual basis will have to be gone into to enable Mr Ma's submission to be dealt with, the matter should be remitted to the Deputy Judge below to re-consider the question of disclosure of the documents, i.e. the two diaries.

10. Plainly, there is a claim for legal privilege that has not been addressed and that needs to be, and for the relevant facts to be established. I agree with counsel that the latter would best be done by the judge below.

11. For the reasons I have stated with some brevity, I would allow the appeal, set aside the order for inspection and remit the matter to the judge to re-consider the question of disclosure of the documents; I would add that that formulation I adopt having due regard to the views of counsel.

Bokhary JA:

12. This case illustrates two things: first, that the law is sometimes far from easy; and, secondly, that it can be made much easier when one has, as one has in this case, the assistance of very able counsel on both sides.

13. In her Notice of Appeal, the wife asks us: (i) to set aside the judge's Order that the diaries be disclosed in their entirety to the husband; and (ii) to order that disclosure be limited to those portions of the diaries which she had used to refresh her memory when she was being cross-examined.

14. The implications of her asking us to do that seems to be these. First, in so far as the diaries contain what have been called "private" matters, they are irrelevant to the ancillary relief proceedings before the judge. Secondly, in so far as they contain a contemporaneous record of her expenditure, they are privileged save to the extent that privilege has been waived. Thirdly, either (a) it is accepted that privilege has been waived in regard to the portions which she had used to refresh her memory when she was being cross-examined or (b) she is willing to let the husband and his advisers see those portions even though they would not be entitled to do so if she were to object. Fourthly and finally, it is contended that privilege has not been waived in regard to the remainder of such contemporaneous record of expenditure and that, accordingly, such remainder remains privileged.

15. In the course of the hearing, it became clear to us and to counsel on both sides that the facts relevant to the question of whether the diaries or any part of them are liable to be disclosed have not yet been sufficiently investigated for the purpose of any order in that regard, one way or the other. So Mr Ma for the wife no longer asks us to order now that disclosure be limited to the portions of the diaries which his client had used to refresh her memory when being cross-examined. And Ms Leong for the husband no longer seeks to persuade us that we can avoid setting aside the present Order that the diaries be disclosed in their entirety to the husband.

16. We have to walk a careful line between, on the one hand, in any way tying the judge's hands and, on the other hand, failing to give him any guidance whatsoever in regard to how he is to go about deciding on disclosure afresh.

17. The fundamental purpose of legal professional privilege is to protect communications between client and lawyer. Such protection is for the purpose of preventing any inhibition of the free flow of such communications, it being recognised that any such inhibition would be inimical to the proper conduct of legal business including litigation and, perhaps even more importantly, the avoidance of litigation where it can be avoided.

18. Now, one of the questions of fact which calls for investigation by the judge is whether the predominant purpose of the contemporaneous record kept by the wife was to facilitate the giving of instructions by her to her solicitors . That would go to the very first question of whether privilege arose at all.

19. Another question of fact which calls for investigation by the judge is to what extent that record was actually used by the wife to refresh her memory when she was being cross-examined. That is because there is, within the broad question of waiver, a narrower question of the extent of any waiver. We are not as well placed as the judge to deal with that because, unlike us, he receives the evidence at first-hand and has the entire tableau before him.

20. It is highly regrettable that it is not possible to reach a decision on this matter, one way or the other, now. But that is plainly not possible; and it would be a great mistake to delude oneself into thinking otherwise. The whole of the question of what is or is not liable to be disclosed will have to be resolved by the judge. There was taken before him on the wife's behalf a very real point as to privilege which he unfortunately saw and characterised as "a false point".

21. For those reasons which I respectfully add to the ones given by my Lord, I am of the opinion that this appeal must be allowed to the extent of making the order which he proposes.

Liu JA:

22. Apart from the respondent's right to inspect the entries in the two diaries, to which the petitioner has referred or will refer for refreshing her memory, claim of privilege did not seem to have been properly addressed. The claim of privilege to the remaining entries can best be resolved by the trial judge as can be the question of waiver, who could without difficulty identify the parts in the two diaries which the petitioner had resorted to at the last hearing and are, therefore, no longer at issue. Similarly waiver must necessarily be considered by reference to what diary entries the judge finds to have been actually used by the petitioner. The law is not in serious dispute. Claim of privilege to the remaining parts of the diaries and the question of waiver can now be readily disposed of at the resumed hearing. I agree with the order proposed by the Vice-President.