MK v. DIRECTOR OF LEGAL AID

Press Summary (English)

Press Summary (Chinese)

FACV No. 8 of 2023

[2024] HKCFA 6

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 8 OF 2023 (CIVIL)

(ON APPEAL FROM CACV NO. 355 OF 2021)

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J U D G M E N T

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Mr Justice Ribeiro PJ:

1.  I agree with the judgment of Lord Phillips of Worth Matravers NPJ.

Mr Justice Fok PJ:

2.  I agree with the judgment of Lord Phillips of Worth Matravers NPJ.

Mr Justice Lam PJ:

3.  I agree with the judgment of Lord Phillips of Worth Matravers NPJ.

Mr Justice Tang NPJ:

4.  I agree with the judgment of Lord Phillips of Worth Matravers NPJ.

Lord Phillips of Worth Matravers NPJ:

INTRODUCTION

5.  This appeal is concerned with the manner in which legal professional privilege (“LPP”) applies in relation to the relationship that comes into existence after a grant of legal aid has been made. That relationship is tripartite (“the tripartite relationship”) between (i) the legally aided person (“the aided person”), (ii) the lawyers assigned to conduct the litigation (“the assigned lawyers”) and (iii) the Director of Legal Aid (“the Director”).

6.  The background to the case is an application by the Appellant (“MK”) for judicial review (HCAL 1077/2018) in respect of which leave was given by Chow J on 13 June 2018. A legal aid certificate was granted to her in respect of those proceedings on 25 July 2018. The decision challenged in the present judicial review proceedings is that made on 23 May 2019 by the Registrar of the High Court through his Deputy (“the Master”), dismissing an appeal against a decision made by the Director on 9 May 2019, to revoke that legal aid certificate. The ground of the challenge is that the Registrar and the Director founded their decisions on information (“the Information”) that was subject to LPP. The Master has chosen to adopt a neutral stance in these proceedings, leaving it to the Director to respond.

7.  Both the Director and the Master were sitting in an administrative capacity, but before the Court of First Instance (“the CFI”) it was treated as axiomatic that, if the Information was subject to LPP, the Director and the Master were bound to disregard it. Before the Court of Appeal the Director sought to challenge this assumption, but the Court found it unnecessary to deal with the point.[1] It seems to me far from axiomatic that a public official is bound to disregard information relevant to the performance of his duties if it is communicated to him in breach of confidence, even where the information is subject to LPP. I shall proceed, however, to consider the issues arising in this case on that premise.

8.  Regulation 21 of the Legal Aid Regulations Cap 91A (“Reg 21” and “LAR”) under the Legal Aid Ordinance Cap 91 (“LAO”) provides:

“Duty to report abuse of legal aid

(1) Where an aided person’s solicitor or counsel has reason to believe that the aided person—

(a) has required his case to be conducted unreasonably so as to incur unjustifiable expense or has required unreasonably that the case be continued; or

(b) has wilfully failed to comply with any regulation requiring him to provide information or in furnishing such information has knowingly made a false statement or a false representation,

the solicitor or counsel shall forthwith report the fact to the Director.

(2) Where the solicitor or counsel is uncertain whether it would be reasonable for him to continue acting for an aided person, he shall report the circumstances to the Director.”

9.  It has at all times been common ground that the Information communicated to the Director was subject to LPP unless LPP was abrogated by Reg 21. The Director’s case has been that it was so abrogated; MK’s case has been that it was not. Thus, the question of law in respect of which leave to appeal was granted was formulated as follows:

“Upon proper interpretation of Regulation 21(1)(b) of the Legal Aid Regulations, Cap. 91A, what is the extent, if any, of the abrogating effect by necessary implication against legal professional privilege at common law which is a right guaranteed constitutionally under Article 35 of the Basic Law of Hong Kong? In particular, does the abrogation by necessary implication extend to communications protected by legal professional privilege prior to the application for and/or granting of legal aid to the client?”

10.  As I shall explain I have formed the view that this question of law is based on a false premise.

11.  On 12 December 2023 the Court informed the parties that it might:

“wish to hear submissions as to whether waiver of legal professional privilege may be of relevance in considering disclosure of the financial resources of the applicant or aided person in the present case.”

Permission was given to file Supplemental Cases addressing this question.

12.  Each party filed a Supplemental Case addressing waiver both in the context of statutory construction and as an issue arising on the particular facts of the case. In his Supplementary Case the Director submits that even if the issue of factual waiver proves determinative of this appeal, the Court should none the less address the legal issues that have been raised. I am in sympathy with that submission but propose first to address his contention that, on the facts, MK waived any right to assert LPP as against the Director.

WAIVER

The relevant facts

13.  MK and Madam C, so described to preserve their anonymity, are same sex partners. They wished to take judicial review proceedings seeking public recognition of a relationship such as theirs. On 5 June 2018 they both attended a conference with four lawyers: Mr Hectar Pun SC; Mr Gene Bond Ng of Messrs Bond Ng Solicitors (“BNS”); Mr Anson Wong, counsel and Ms Tina Mok, counsel. According to MK the object of the conference was for her and Madam C to obtain advice on the merits of the intended judicial review and on which of the two partners should apply for legal aid.

14.  On 12 June 2018 a Notice of Application for Leave to Apply for Judicial Review (Form 86) was filed. On 3 July 2018 MK made an application for legal aid. On 25 July 2018 a legal aid certificate was granted to MK. On 8 August 2018 Mr Ng was assigned to be the solicitor for MK. On 21 and 23 August 2018 Mr Pun and Ms Mok were assigned to represent MK as leading counsel and counsel respectively. According to the Affidavit of Ngai Man Yuen Samantha, a Senior Legal Aid Counsel who has acted throughout on behalf of the Director, these assignments were made “upon the Applicant’s nomination”.  Shortly thereafter, however, MK, through BNS, sought to have a replacement to Mr Pun assigned as leading counsel. On 9 January 2019 Ms Gladys Li SC and Ms Linda Wong were assigned as replacement leading and junior counsel.

15.  On 22 January 2019 the Director received an anonymous email. This stated that MK and her partner jointly owned and operated a pet shop. Why, it asked, had MK been granted legal aid and could it be that her legal representatives had assisted her in concealing her financial resources?

16.  On 31 January 2019, the Director received an email from Mr Wong. He informed the Director that he had received an email which made inter alia a serious allegation against MK’s legal team. He said he felt obliged to write to the Director to put the record straight. Amongst other things, he said that:

“3. During the [5/6 Conference], one of the questions raised was the occupation of MK and her partner. They told us that they were co‑owners of a pet shop business as they had jointly invested in operating the pet shop business and they jointly contributed to the capital for purchasing the stock for their business.

4. A question was then raised as to whether they would be entitled to legal aid because their assets (including their stock) might exceed the eligibility limit under the legal aid scheme. Mr Pun expressly said that he was not very familiar with how financial resources are actually assessed under the means test for legal aid, and would leave it to Mr Ng to assist them in making the legal aid application. I did not advise MK and her partner in this regard either.

5. At the end of the conference, MK decided to do the judicial review in her own name without naming her partner as a co-applicant.

6. After the first conference on 5 June 2018, Mr Pun and I have never met MK or her partner again. I understand that Mr Ng and Miss Mok assisted MK in making her application for legal aid, while Mr Pun and I focused on drafting the Form 86 and other relevant papers.

7. I do not know what financial resources MK disclosed to the Director of Legal Aid. I also do not know whether MK disclosed to the Director of Legal Aid that she co-owned the pet shop business and the stock with her partner.”

17.  After receiving this letter the Director, through Ms Samantha Ngai, made a number of searching enquiries in relation to MK’s financial resources. In a letter of 3 April 2019 to BNS she drew attention to “Regulation 21 of the Legal Aid Regulations about your duty to report abuse of legal aid”. The letter ended with a request for “a copy of your attendance note of your conference with the aided person and counsel on 5.6.2018 for our attention”.

18.  BNS replied on 9 April 2019 asking how the DLA knew of the conference and how it was relevant given that it fell outside the coverage of MK’s legal aid certificate. On 24 April 2019 the Director wrote to BNS:

“We are given to understand that a conference was held with counsel, the aided person and you on 5.6.2018 in which the aided person disclosed her ownership in the pet shop and admitted that she had made financial contributions for the setting up of the business. In the premises, we requested for your and/or the aided person's provision of the copy documents and information including the said meeting note for our review of the aided person’s financial eligibility for legal aid by 29.4.2019.”

19.  BNS replied on 30 April 2019, describing the allegation that MK owned part of the pet shop as “the First Allegation” and the allegation that she contributed to setting up the business as “the Second Allegation”.  The letter continued:

“2) The Aided Person (who was not at that time an aided person) did not to our knowledge make any such disclosure during the Conference as alleged in the First Allegation nor did she make any such admission during the Conference as alleged in the Second Allegation;

3) We are instructed by the Aided Person that she had never said anything to such effect of the First Allegation and the Second Allegation in the Conference as ‘you were given to understand’; and

4) We are instructed by the Aided Person that as a matter of fact, the Aided Person (a) had not made any financial contributions for the setting up of the business as alleged and (b) did not and does not own the pet shop as alleged.” 

The letter ended:

“Lastly, we fail to see on what grounds your Department is entitled to have access to any documents of the Conference. After all, the said Conference and its documents like conference notes are covered by legal professional privilege and the Aided Person has not waived such privilege and accordingly, we are not in position to accede to you request.”

20.  On 30 April 2019 the Director issued a Notice to Show Cause to MK under Reg 8 of the LAR on the ground that she had wilfully failed to disclose her financial resources. MK attended the offices of the Director, with her partner, on 2 May 2019 to show cause. She made a number of Statutory Declarations. Some of these set out positive information about her financial resources. One stated:

“The Conference on 5 June 2018 is covered by legal professions privilege, I am not prepared to waive it.”

21.  On the same day the Director wrote to Mr Pun, requesting him to provide all information and documents relevant to MK’s financial circumstances. In responding on 3 May 2019 Mr Pun stated that he was mindful of his statutory duty under Reg 21 to report abuse of legal aid.[2]

22.  Mr Pun went on to state inter alia that during a conference held on 5 June 2018, the Applicant had told him that:

“(1) she and her partner jointly operated a pet shop business

(2) even though the Pet Shop Business was under the sole name of her partner in the relevant business registration, [she] and her partner in fact jointly contributed to the capital for setting up the Pet Shop Business and were co-owners of the Pet Shop Business.”

The value of the business was “in the region of hundreds of thousands [of] dollars.”  At the conclusion of the conference it was decided that MK would make the application for legal aid. Mr Pun understood that BNS and Ms Mok assisted her in doing this.

23.  Meanwhile, on 2 May 2019 MK signed a statutory declaration in which she confirmed that she did not have any ownership in the pet shop and had never made any financial contribution to it.

24.  Finally, on 8 May 2019, BNS forwarded to the Director a letter from Ms Mok. This started with an averment that the conference was covered by LPP and had been wrongfully disclosed to the Director and wrongfully used by him without sufficient enquiry with MK as to whether waiver of LPP had been obtained. The letter then continued:

“However, in order to assist your Department while in compliance with ss.10.15 and 10.18(b) of the Code of Conduct issued by the HKBA, I hereby, with the permission of MK, provide you, to the best of my recollection and memory, and with reference to my personal notes of the Conference, a brief account of those matters concerning the allegations which you claimed to have received from other source in relation to the said Conference.”

25.  There followed, over the next two pages of the letter a detailed account of what Ms Mok said had taken place at the conference, ending with a statement that she was not aware of any statement by MK at the conference that she had any ownership of, or had made any financial contribution to the setting up of, the pet shop.

26.  On 9 May 2019 the Director revoked MK’s legal aid certificate on the ground that she had wilfully failed to disclose her financial resources. The written Reasons dated 15 May 2019 made it plain that this finding was based on the information provided by Mr Pun and Mr Wong, which was considered to be reliable and credible, whereas the evidence of MK, Mr Ng and Ms Mok was not.

Legal principles

27.  No issue arises as to the relevant legal principles. The starting point is that LPP is a fundamental right. It is constitutionally guaranteed by Art 35 of the Basic Law. It is a fundamental human right. Its standing was recognised in paras 44 to 46 of the judgment of the CFI. While it is capable of waiver a finding that it has been waived should not be made lightly.[3]

28.  The test of whether LPP has been waived is an objective one. Waiving LPP falls within the authority of a legal representative. It is not material whether the litigant, or indeed the legal representative, intends to waive or appreciates that his conduct amounts to waiver.[4]

29.  Where the protected person himself refers to a part of a wider body of privileged material, it will be a question that turns on the particular facts whether or not this amounts to a waiver of privilege in relation to the entirety of the material. Privilege will be waived if it will be unfair to permit the client to rely upon the portion disclosed without taking into consideration the balance of the material.

The result in this case

30.  There is no difficulty in applying the law to the facts of this case. The matters communicated by MK at the conference was subject to LPP. It was given to four lawyers. Two of those, Mr Wong and Mr Pun disclosed to the Director the Information, which they said formed the significant part of those matters. The Director, in his letter of 24 April 2019, conveyed the Information to BNS, though not its source. In their letter of 30 April 2019 BNS said that both MK and they themselves challenged this version of the conference. Arguably this was enough to waive LPP in relation to what was said at the conference, but it was coupled with an averment that the conference was privileged and that MK had not waived such privilege.

31.  The same is not true of Ms Mok’s letter of 8 May 2019. The Code of Conduct to which Ms Mok referred emphasised the duty of confidentiality owed by a barrister in relation to a client’s affairs and the circumstances in which a barrister could, nonetheless disclose these. These included “with the prior consent of the client”. Ms Mok then said that she had the permission of MK to give an account of the conference “in order to assist your Department”.

32.  MK has never denied giving this consent. This was a clear waiver of privilege in relation to what was said at the conference. It does not matter that there was an issue between the lawyers as to what had been said.

33.  This is a short and simple answer to the allegation that the Director wrongly based his decision on evidence disclosed in breach of LPP.

34.  The Appellant’s Second Supplementary Case complained that it had never been the Director’s contention that MK had ever waived LPP and that it was consequently impossible meaningfully to respond to this issue. This is not correct. In para 51 of her Affidavit of 20 November 2019, in response to the Application for leave to apply for judicial review, Ms Samantha Ngai stated:

“I am advised and verily believe that in effect, the Applicant had waived legal professional privilege (if any) with regards to any statements as alleged or at all concerning her interest (if any) in the pet shop by Ms. Mok’s disclosure of the same in her letter dated 8 May 2019. The learned Deputy Registrar had stated clearly his reasoning in the Decision on the matters raised in this aspect. I shall defer to the Director’s legal representative to make further submissions on this if necessary at the hearing.”

It is fair to say that, perhaps surprisingly, the point does not appear to have been pursued at the first instance hearing.

35.  Accordingly this Appeal falls to be dismissed on the ground that, if the Information upon which the Director founded his decision was initially subject to LPP, that privilege had been waived.

THE OTHER ISSUES

36.  I now turn to the other issues raised by this appeal. I propose to start by setting out the relevant statutory provisions and then consider the statutory scheme derived from these.

The LAO

“6. Scope of legal aid

Legal aid shall consist of representation, on the terms provided for by this Ordinance, by the Director or by a solicitor and, so far as necessary, by counsel including all such assistance as is usually given by solicitor or counsel in the steps preliminary or incidental to any proceedings or in arriving at or giving effect to a compromise to bring to an end any proceedings.

…

9. Power of Director to make inquiries

Where an application for legal aid is made under the provisions of section 8, the Director may—

(a) make such inquiries as he thinks fit as to the means of the applicant and as to the merits of the case …

(b) require the applicant to furnish such information and such documents as the Director may require for the purpose of considering the application;

…

(d) refer the application, or any matter arising out of the application, to counsel or solicitor, whose name is on the appropriate panel, to investigate the facts and make a report thereon or to give any opinion thereon or on any question of law arising out of the application;

…

13. Endorsement of legal aid certificate

(1) Where a legal aid certificate is granted, the Director may act for the aided person in any proceedings, or part of any proceedings, and the Director may assign counsel or solicitor, to be selected by the aided person, if he so desires, or otherwise selected by the Director ...

…

24. Privileges attaching to certain relationships

(1) The like privileges and rights as those which arise from the relationship of client, counsel and solicitor acting in their professional employment shall arise from the following relationships, that is to say—

(a) the relationship between an applicant for legal aid and the Director and counsel and solicitor to whom the application is referred;

(b) the relationship between an aided person and the Director and counsel and solicitor assigned to act for him in any proceedings to which a legal aid certificate relates.

…

(4) A person shall not disclose information given for the purposes of this Ordinance concerning a person seeking or receiving advice, assistance or representation otherwise than—

(a) to enable the proper performance by a person of a function under this Ordinance;

(b) to advise on, institute and pursue criminal proceedings for an offence arising out of the operation of this Ordinance or to report the proceedings; or

(c) with the consent of the person concerned and, if he did not give the information, the consent of the person who did.

…

(6) Information given to counsel or a solicitor acting in that capacity by or on behalf of a person seeking or receiving advice, assistance or representation under this Ordinance is not information given for the purposes of this Ordinance.

…

28. Regulations

(1) The Chief Executive in Council may make regulations prescribing any matter which by this Ordinance is to be or may be prescribed and generally for the better carrying out of this Ordinance.”

The LAR

“12. Conduct of proceedings by solicitors

…

(7) Without prejudice to the right of solicitor or counsel to give up a case for good reason, any solicitor or counsel may give up an aided person’s case if, in his opinion, the aided person has required the proceedings to be conducted unreasonably so as to incur an unjustifiable expense to the Director or has required unreasonably that the proceedings be continued.

(8) Where any solicitor or counsel exercises the right to give up an aided person’s case—

(a) under the provisions of paragraph (7); or

(b) on the ground that the aided person has wilfully failed to provide the information to be furnished by him or in furnishing such information has knowingly made a false representation,

the solicitor or counsel shall make a report to the Director of the circumstances in which that right was exercised.

(9) An aided person’s solicitor shall give the Director such information regarding the progress and disposal of proceedings to which the certificate relates as the Director may from time to time require for the purpose of performing his functions under the Ordinance and without prejudice to the generality of the preceding words, a solicitor who has acted or is acting for an aided person, on being satisfied that the aided person has died or has had a receiving order made against him, shall report the facts to the Director.

(10) A solicitor shall not be precluded, by reason of any privilege arising out of the relationship between solicitor and client, from disclosing to the Director any information or from giving any opinion which may enable the Director to perform his functions under the Ordinance.

…

21. Duty to report abuse of legal aid

(1) Where an aided person’s solicitor or counsel has reason to believe that the aided person—

(a) has required his case to be conducted unreasonably so as to incur unjustifiable expense or has required unreasonably that the case be continued; or

(b) has wilfully failed to comply with any regulation requiring him to provide information or in furnishing such information has knowingly made a false statement or a false representation,

the solicitor or counsel shall forthwith report the fact to the Director.

(2) Where the solicitor or counsel is uncertain whether it would be reasonable for him to continue acting for an aided person, he shall report the circumstances to the Director.”

The scheme of the legislation

37.  The LAO came into force in 1967 and was modelled on the English Legal Aid and Advice Act 1949. The Ordinance deals with the application for and the grant of Legal Aid, creating the tripartite relationship. It deals, in particular, with the manner in which LPP and other duties of confidentiality arise out of that relationship.

38.  The LAR also came into force in 1967. They too were modelled on regulations made under the English Act.[5]  They deal with the customary duties of the assigned solicitor and counsel in relation to the conduct of the litigation on behalf of the aided person. But they also place on them duties of a quite different kind – to report to the Director in relation to the progress of the litigation and, in particular, to act as his watchdog in relation to possible abuse by the aided person of the legal aid that has been granted (“watchdog duties”). This role has been part of the scheme from its inception.

39.  Thus the statutory scheme has two aims. The first is to provide, at the public expense, legal assistance to litigants who have limited financial means. The second is to ensure that this assistance is not abused by litigants who fail to make true disclosure of their means or who pursue litigation whose prospects of success do not jutify the expenditure of doing so.

The LAO

40.  The relevant provisions of the LAO are set out above. Section 6 defines legal aid. It is the provision of the assistance that is usually given in conducting litigation, to be provided either by the Director himself or, as is the case in practice, by a solicitor and counsel assigned by the Director. Section 9 makes provision as to how the Director decides whether an applicant is eligible for legal aid. Section 13 provides for the assignment by the Director of solicitor and counsel, to be selected by the aided person if he so desires, to act for the aided person in conducting the proceedings.

41.  Where the aided person has already instructed a solicitor and counsel (“the lawyers”) to act in relation to the proposed litigation, or the litigation itself if it has been commenced before legal aid is sought, the aided person is likely to select them for assignment to the case by the Director, in order to ensure continuity. In those circumstances, there will be a change of the relationship between the aided person and the lawyers. Before the assignment this will be a bipartite relationship between lawyers and client, in which the lawyers’ duties are owed exclusively to the client. After the assignment the relationship becomes tripartite, made up of the aided person the lawyers and the Director. The lawyers are paid by the Director and owe duties not only to the aided person but also to the Director.

42.  The change in the relationship brings with it a change in the manner in which LPP protects communications within it. LPP protects communications between a client and his solicitor and counsel from disclosure, outside that relationship, of communications made within it. Under section 24(1) of the LAO LPP affords the same protection of communications made within the tripartite relationship from disclosure outside it. It does not afford protection from disclosure within the tripartite relationship, ie it does not purport to prevent the assigned lawyers from passing on to the Director information derived from the aided person.

43.  Section 24(4) of the LAO imposes a duty of confidentiality on members of the tripartite relationship in respect of communications about the personal circumstances of the aided person. These would not attract LPP. This duty of confidentiality is subject to the specified exceptions. Section 24(6) of the LAO makes it plain that section 24(4) does not apply to communications that attract LPP, which are dealt with by section 24(1).

44.  While section 6 of the LAO provides that solicitor and counsel are to provide the usual assistance to the aided person, the Ordinance makes no provision in respect of the reporting and watchdog duties that the lawyers are to owe to the Director. These are imposed exclusively by provisions of the LAR.

The LAR

45.  Regulation 12 is headed “Conduct of proceedings by solicitors”.  This recognises that the assigned solicitor will have the general conduct of the litigation. Regulation 12(1) to 12(6) make provision for various aspects of the solicitor’s task of conducting the litigation. Regulation 12(9) makes provision for the solicitor to give the Director such information of the progress and disposal of the proceedings as the Director may from time to time require.

46.  None of these Regulations imposes watchdog duties on counsel or solicitor. When the Regulations were originally introduced only Reg 12(7) and 12(8) did this. They give solicitor and counsel the right to give up a case on the ground of specified abuses of legal aid by the aided person. If they exercise that right they are required to “make a report to the Director of the circumstances in which that right was exercised.” This report will necessarily set out the abuse that caused the solicitor or counsel to give up the case.

47.  Regulation 21 was added to the LAR in 1984. Its effect is to advance the time at which solicitor and counsel have a duty to report to the Director the abuses referred to in Reg 12(7) and (8). These have to be reported “forthwith” once solicitor or counsel has “reason to believe” that such abuses have occurred.[6]  Indeed there is a duty to report to the Director any circumstances that raise uncertainty as to whether the solicitor or cousel should continue acting.

48.  I have not yet mentioned Reg 12(10). The effect of Reg 12(10) lies at the heart of this case. I consider it in detail in the passage of this judgment that starts at para 66 below.

THE DECISION OF THE MASTER

49.  The Appeal to the Master took the form of a re-hearing. The Master proceeded on the basis that the Information was privileged, although he did not find that he had sufficient information to make a firm finding to that effect. The Master then considered whether both Mr Pun and Mr Wong were entitled to disclose the information to him nonetheless. He gave an affirmative answer in respect of both.

50.  The Master held that Reg 21(1) applied to Mr Pun, even though he had ceased to be assigned as MK’s counsel at the time that he conveyed the Information. He accepted that Reg 21(1) abrogated any LPP that would otherwise have applied. So far as Mr Wong was concerned, he found that Reg 21(1) did not apply to him as the Director had never assigned him to be MK’s lawyer. He went on to hold, however, that MK’s privilege was destroyed under the principle in R v Cox.[7]

THE DECISION OF THE CFI

51.  The decision of the CFI was delivered by Yeung J on 23 June 2021. It is lengthy and complex. I shall confine my analysis to those parts of his judgment that are central to the issue in this case. At the outset it is helpful to note the following dates. On 5 June 2018 MK communicated the Information to Mr Pun at a conference; On 21 August 2018 Mr Pun was assaigned to act as counsel for MK; On 9 January 2019 Mr Pun ceased to act for MK; On 3 May 2019 Mr Pun disclosed the Information to the Director.

52.  MK, through her counsel Mr Shum, made the following submissions:

(1)  Regulation 21(1) did not abrogate LPP in any circumstances. The duty to report that it imposed would often relate to matters that were not subject to LPP. Insofar as they related to communications subject to LPP, LPP would preclude reporting them to the Director;

(2)  Even if (1) were not correct Reg 21(1) did not abrogate LPP in relation to communications that were made to an assigned lawyer before he was assigned. The Information was conveyed to Mr Pun before he was assigned; and

(3)  Mr Pun’s disclosure of 3 May 2019 was not made pursuant to a duty imposed by Reg 21(1) because Mr Pun had ceased to be assigned before he made the disclosure. It followed that LPP in relation to the disclosure could not be abrogated by Reg 21(1).

53.  Regulation 21(1) covers a wide range of possible abuses of legal aid. Yeung J restricted his analysis to “information on the applicant’s financial eligibility for legal aid”, which I shall call “eligibility material”. The judge observed “The analysis of the other type of information involves other considerations, is not engaged in the present case, and does not call for determination”.[8]

54.  Yeung J focussed his analysis on the two relationships addressed by section 24(a) and (b): that between the parties during the application stage and that between the parties during assignment.[9]  In the first part of his judgment (“Part 1”) he confined his analysis temporally to the time and situations after those relationships had arisen. He deferred dealing with the temporal issues raised by MK, referred to at para 52(2) and (3) above, to the second part of his judgment (“Part 2”).

PART 1 OF YEUNG J’S JUDGMENT

55.  We are not in this case concerned with the application stage, but Yeung J considerd the two stages together and I propose to address both of them.

56.  The essence of Yeung J’s reasoning, and his conclusion, appear in the following three paragraphs of his judgment:

“76. While the DLA can himself provide legal aid within the scope defined in section 6 of the LAO, the DLA has the statutory powers in the discharge of his statutory duties to engage panel solicitors and counsel. In those cases, the DLA necessarily will have to rely on those solicitors and counsel to report matters back to him. That is how under the LAO the legal aid regime works. To suggest that an applicant or aided person has the rights and privilege to, at least in so far as his communications with solicitors and counsel on financial eligibility are concerned (which we are concerned with), claim LPP against the DLA would in my view render the system unworkable.

…

82. The DLA is statutorily mandated to determine an applicant’s financial eligibility to legal aid. An applicant has the duty to supply any information as required, and has further the continuous duty to report any change in financial circumstances. Willful failure to comply with any re[gu]lations as to the information to be supplied is an offence under section 23 of the LAO. The DLA is not a stranger third party. He is one of the providers of legal aid as defined in section 6 of the LAO. He also has the powers to require reports under the terms of the LAO from panel solicitors and counsel. We will see more such examples when we look at the LAR. When reports are so sought, the DLA necessarily will have to rely on those solicitors and counsel to report matters back to him. As I have commented above, to suggest that an applicant or aided person has the rights and privilege to, at least in so far as his communications with solicitors and counsel on financial eligibility are concerned, claim LPP against the DLA would in my view render the system unworkable.

83.  Upon the above considerations, I am of the view that at least in relation to communications on financial eligibility, and upon an application for legal aid being made and upon assignment (so that the relationships referred to in sections 24(1)(a) and (b) arise), any right or privilege which an applicant or aided person may otherwise have to refuse disclosure to the DLA on the basis of LPP has clearly and necessarily been limited or abrogated by the provisions of the LAO read as a whole. I call this for ease of reference the ‘Necessary Limitation’.”

Discussion on Part 1

57.  I have two comments on the passages quoted above. The first is that they assume that any report to the Director made by solicitor or counsel, (a) to whom an application for legal aid has been referred or (b) who has been assigned to act for an aided person, is likely to contain communications from the applicant or aided person, made after application or assignment, that are subject to LPP. In reality it is not conceivable that the reports in question will contain any such material.

58.  My second comment, and it is the more important one, is that in identifying the requirement of a “Necessary Limitation” Yeung J has ignored the effect of Reg 12(10).

The requirments for LPP

59.  Some of Yeung J’s reasoning appears to assume that any communication from a client to a solicitor or counsel will automatically be subject to LPP.[10] That is not the case.

60.  There are two different types of LPP – “litigation privilege” and “advice privilege”. Litigation privilege relates to communications in relation to the conduct of litigation and is wider than advice privilege.

61.  Yeung J confined his analysis to communications about eligibility material. LPP relating to this will be advice privilege. Advice privilege protects:

“a communication, whether written or oral, that is made:

- between a client and his lawyer, where the lawyer is acting in the course of their professional relationship and within the scope of the lawyer’s professional duties;

- under conditions of confidentiality; and

- for the purpose of enabling the client to seek, or the lawyer to give, legal advice or assistance in a relevant legal context.”[11]

I turn to consider the application of these criteria to the two relationships considered by Yeung J.

The relationship between an applicant for legal aid and the Director and counsel and solicitor to whom the application is referred

62.  Section 9(d) of the LAO gives the Director power to refer an application for legal aid to counsel or a solicitor to investigate the facts and make a report to him. The relationship created under 9(d) does not satisfy the criteria for the creation of LPP in respect of communications made by the applicant for legal aid to the counsel or solicitor to whom the application is referred. The “client” of the counsel or solicitor is not the applicant for legal aid but the Director. The communications made by the applicant to the counsel or solicitor are not for the purpose of enabling the applicant to seek or the counsel or solicitor to give to the applicant legal advice or assistance. They are for the purpose of assisting in making a report to the Director, and the applicant, by requesting legal aid, has agreed to providing information for this purpose. No question can possibly arise of the applicant asserting LPP against the Director.

The relationship between an aided person and the Director and counsel and solicitor assigned to act for him

63.  Section 24(1) of the LAO provides that privilege attaches to this relationship. The relationship is tripartite. The lawyers appointed by the Director owe duties to the aided person to carry on the litigation that is the subject of the grant of legal aid. It is no part of those duties to advise the aided party on eligibility matters. Under the LAO and the LAR the lawyers assigned by the Director also owe him duties to advise him on the progress and conduct of the case and of any abuse by the aided person of legal aid.

64.  The lawyers assigned by the Director could not properly accept instructions from the aided person to provide advice about eligibility matters. That would create a conflict between the duties owed to the aided person – in particular the duty of confidentiality – and the reporting duties owed to the Director. Thus, after assignment, no relationship between the aided person and the solicitor and counsel assigned by the Director capable of giving rise to LPP can possibly arise.

65.  Thus the circumstances that led Yeung J to conclude that LPP was abrogated by Necessary Limitation can never arise in practice. Were they to arise, however, it is hard to see why Yeung J found it necessary to formulate by implication a Necessary Limitation to abrogate LPP rather than considering whether the perceived problem was expressly addressed by Reg 12(10). The answer may be that counsel for the Director did not advance that possibility.

LAR 12(10)

66.  Regulation 12(10) provides, inter alia, that a solicitor shall not be precluded by LPP from disclosing to the Director “any information … which may enable the Director to perform his functions under the Ordinance”. This raises the following questions: (1) What is the scope of the Regulation? (2) Does the Regulation implicitly apply to counsel as well as to solicitors? (3) To what does the Regulation apply in practice? (4) Is the Regulation ultra vires?

What is the scope of Reg 12(10)?

67.  There was clearly some discussion about Reg 12(10) before Yeung J as he observed in the course of his judgment “whether Reg 12(10) is there only for avoidance of doubt is not clear, and has not been fully argued”.[12]  Later he remarked that Reg 12(10) was in his view an important regulation as it “makes clear the position that a solicitor shall not be precluded, by reason of any LPP, from disclosing to the DLA any information or giving any opinion which may enable the DLA to perform his functions under the LAO.”  Thus Yeung J appears to have treated the regulation as being there merely for clarification.

68.  MK, in her Supplemental Case,[13] suggests that Reg 12(10) provides “a limited exception on the part of solicitors allowing them to furnish information covered by LPP to the Director (which exception does not exist for barristers).” Thus she treats it as applying merely to reports pursuant to Reg 12(9). The Director’s submissions in his Case[14] appear to accept this.

69.  I can see no warrant for placing this limitation on the natural meaning of the Regulation. Its wording is very wide. On its natural meaning it covers information imparted to the Director pursuant not merely to Reg 12(9) but Reg 12(8) and Reg 21.[15] There is every reason why it should apply to these provisions in accordance with its natural meaning. The information that will be of greatest concern to the Director will be information of abuse of legal aid provided under Reg 21, which effectively replaces Reg 12(8). Thus I find that any report made by a solicitor to the Director under Reg 21 will, if it would otherwise have included information subject to LPP, nonetheless be lawfully made to the Director by reason of Reg 12(10), provided always that Reg 12(10) is intra vires.

70.  The express abrogation of LPP effected by Reg 12(10) leaves no scope for the implied abrogation that the Director contends arises from Reg 21(1) itself, nor for the Necessary Limitation.

Does Reg 12(10) implicitly apply to counsel as well as to solicitors?

71.  Although Reg 12(10) is only expressed to apply to “a solicitor” this is explicable from the fact that Reg 12 is headed and largely deals with “Conduct of proceedings by solicitors”.  But the watchdog obligations in Reg 12(8) and Reg 21(1) apply to both solicitors and counsel. By necessary implication Reg 12(10) must apply to counsel as well as solicitors if the scheme is to be coherent. Counsel and solicitors work as a team in litigation. It would be absurd if LPP were abrogated for a solicitor but not for counsel in respect of precisely the same communication from the aided person.[16]

72.  There is one implied restriction on the ambit of Reg 12(10). If read in isolation it could apply to any solicitor or counsel – for instance to Mr Anson Wong. Regulation 12 is, however, only dealing with solicitors and counsel assigned by the Director to act for the aided person. By necessary implication Reg 12(10) only applies to assigned solicitors and counsel.

To what does Reg 12(10) apply in practice?

73.  As Yeung J observed[17] one can see from Reg 12(10) that the Legislature appears to recognise that an aided person could theoretically assert LPP against the Director. We have been shown nothing to indicate that the Legislator had in mind any particular circumstances in which this could occur. It seems at least possible that the Legislator was proceeding on the simple premise that there were bound to be some circumstances in which the reporting by lawyers of abuse of legal aid by their clients would violate LPP.

74.  I have explained why I cannot conceive of such circumstances arising in relation to communications about eligibility matters from the aided person to the lawyers assigned to act for him made after the grant of legal aid. It is perfectly possible, however, that assigned lawyers may have received information relevant to eligibility matters that were subject to LPP before their client selected them for assignment under the grant of legal aid. That indeed is the position in the present case. Before the grant of legal aid the bipartite relationship between lawyer and client is one in which information may be conveyed that is protected by LPP against all the world, including the Director.

75.  The facts of this case are, however, highly unusual. It seems unlikely that in normal circumstances an applicant for legal aid will select for assignment as his counsel or solicitor someone to whom he has disclosed eligibility material that shows that he is not eligible to legal aid. I wonder whether the Director has ever before been faced with a claim to LPP in relation to information about eligibility material disclosed to the reporting counsel or solicitor in this way.

76.  This case is concerned with a report that purported to be made pursuant to Reg 21(1)(b). Yeung J did not consider the position in relation to reports pursuant to Reg 21(1)(a),[18] which might be subject to litigation privilege. This is, however, of relevance when considering the overall working of the scheme.

77.  Once again, though for different reasons, it is hard to envisage that communications between the aided person and counsel or solicitor after assignment could give rise to LPP that precluded their disclosure to the Director. This is because communications about the conduct of the litigation would be within the tripartite relationship of which the Director is a member. They would, by reason of section 24(1) of the LAO, be protected by LPP in relation to disclosure to the outside world, but not in relation to disclosure to the Director.

78.  By contrast, where litigation is commenced before an application for legal aid is made, material that is subject to litigation privilege is likely to be created. If the lawyers conducting the litigation are assigned to continue acting after legal aid is granted, they will bring with them knowledge of this privileged material. Normally the aided person will have no objection to their sharing this with the Director, but it is possible to envisage the aided person asserting LPP in order, for instance, to keep from the Director an adverse opinion on the merits of the litigation.

79.  In summary, while no issue involving LPP is likely to arise in respect of communications made by the aided person to solicitor or counsel after their assignment, it is possible to envisage such an issue arising in respect of communications made before their assignment, to which Reg 12(10) would apply.

80.  It may well be that in practice the circumstances in which Reg 12(10) is invoked are few and far between. Certainly, apart from this case, this regulation does not seem to have given rise to any reported litigation during the half century that it has been in force.

Is Reg 12(10) ultra vires?

81.  On the mutual, but false, assumption that has prevailed in this case that any abrogation of LPP results from Reg 21(1) there has been substantial debate between the parties in their respective Cases as to whether such abrogation is ultra vires.  It is right that we should consider this issue in relation to Reg 12(10).

82.  LPP is a constitutionally entrenched fundamental human right. It is protected by Article 35 of the Basic Law. Regulation 12(10) is subordinate legislation. There is an abundance of authority declaring that such a right can only be abrogated by primary legislation by express words or necessary implication and, more pertinently, that such a right can only be abrogated by subordinate legislation where this is authorised by the primary legislation by express words or necessary implication.

83.  There is no question of Reg 12(10) being authorised by the express words of the LAO or by necessary implication. Nor can it be said, as Yeung J held, that the system will be unworkable if an aided person can assert LPP to prevent assigned solicitors or counsel reporting to the Director information that is subject to LPP. For the reasons that I have given reports of abuse of legal aid made pursuant to Reg 21(1) will rarely be founded on information communicated to solicitor or counsel that is subject to LPP. There are many other ways in which the lawyers acting for an aided person may be given reason to believe that the aided person is abusing legal aid.

84.  Regulation 12(10) is a qualification on the right to LPP that is sui generis. It is designed to address a rare, but acute, problem that is inherent in that part of the overall legal aid scheme that is laid down by the LAR, namely the placing on the solicitor and counsel assigned to act for an aided person of reporting duties owed to the Director, including the watchdog obligations. The consequence of these duties is to expose the solicitor and counsel to a potential conflict of duty. If the solicitor and counsel have received from the aided person, in circumstances giving rise to LPP, information that the aided person is abusing legal aid, they will owe the aided person a duty not to disclose the information to anyone and they will owe the Director a duty to disclose it to him.

85.  This conflict is untenable. It is resolved by Reg 12(10), which abrogates the LPP. The question is whether this Court should declare this solution ultra vires because it involves abrogation of a fundamental right.

86.  The right to LPP is not an absolute right. It can be subject to exceptions. The rule in R v Cox is one such exception. Regulation 12(10) is another. There are very good reasons for this exception:

(1)  The grant of legal aid was a dramatic social measure that involved a heavy charge on public funds. It necessarily involved putting in place measures designed to protect those funds. These measures were introduced by the LAR pursuant to the very general provision in section 28(1) of the LAO, being “generally for the better carrying out of this Ordinance”. The vires of these measures has not been questioned.

(2)  Imposing reporting duties on the solicitors and counsel assigned to act for the aided party was an obvious measure to take as part of the arrangements for protecting the legal aid fund. Again the vires of this have not been challenged.

(3)  Inherent in the reporting obligations was the possibility of the conflict identified at para 84 above. Putting in place Reg 12(10) was necessary to deal with this contingency.

(4)  The abrogation of LPP effected by Reg 12(10) is very limited. Disclosure is permitted only to the Director, who is part of the aided party’s legal team. LPP is preserved by section 24(1) of the LAO in relation to everyone else.

(5)  The limited abrogation of LPP effected by Reg 12(10) is imposed as a result of the aided person’s own decision to apply for legal aid, thereby accepting the rigorous disclosure obligations imposed by section 9 of the LAO. Accepting these are not compatible with asserting LPP in respect of the disclosure of relevant material.

(6)  By selecting, or accepting, the assignment of the assigned solicitor and counsel the aided person accepts that they will be subject to the reporting obligations and acquiesces in this.

87.  Last, but by no means least, Reg 12(10) formed part of the original LAR and has stood for over half a century without challenge. Furthermore Reg 12(10) followed an equivalent provision in the English Regulations made pursuant to the English Act. The equivalent of that provision has remained in force to the present day.[19]

88.  The exception made by Reg 12(10) to LPP was well established by the time that the Basic Law came into effect. Article 35 of that Law must be read subject to that exception, just as it must be read subject to the R v Cox exception.

Summary

89.  Part 1 of Yeung J’s judgment was not concerned with the facts of this case. It was an exploration of the law to be applied to them. It has taken a while to demonstrate that the source of the abrogation of LPP that will be necessary on the rare occasions that Reg 21(1) requires solicitor or counsel to report to the Director a matter that is subject to LPP is Reg 12(10). That answers the first submission made by MK through Mr Shum.[20]

90.  The temporal issues (2) and (3) raised by Mr Shum remained to be determined in Part 2 of Yeung J’s judgment. They arise equally if one asks them in relation to the Necessary Limitation rather than Reg 21(1) and they arise equally if one asks them in relation to Reg 12(10) rather than Reg 21(1). I turn to consider how Yeung J dealt with them in Part 2 of his judgment.

PART 2 OF YEUNG J’S JUDGMENT

91.  Regulation 21(1)(b) imposes a duty on the assigned solicitor or counsel to report to the Director as soon as he has “reason to believe” that the aided person had failed to comply with his obligations in relation to the disclosure of eligibility material. The following issues arose in relation to this duty: (1) Did the matters giving “reason to believe” include matters that the solicitor or client learnt about before being assigned to act for the aided person? If so: (2) In so far as those matters were privileged, was LPP abrogated by reason of the Necessary Limitation? (3) Did Reg 21(1)(b) apply to Mr Pun notwithstanding that when he wrote his letter to the Director he was no longer assigned to act for MK?

92.  Yeung J answered the second question first. He held that “retrospective abrogation” did not “necessarily follow” from the express provisions of the LAO. It was sufficient to confine the Necessary Limitation to privileged communications that took place after the relationships specified in sections 24(1)(a) and 24(1)(b) had arisen.[21]  Thus Yeung J held that the Necessary Limitation did not apply to the only circumstances where it is possible to envisage an issue of LPP arising.[22]

93.  Yeung J then turned to consider the first question. But he did so “by way of example” on the premise that the basis of the “reason to believe” was “communications between the lawyer and his client”, the inference being that these were subject to LPP.[23] He then concluded:[24]

“113. An assigned lawyer might have acted for a client on a private basis for years before changes of circumstances which lead to the need on the client’s part to apply for legal aid. If Reg 21(1) were to apply to all pre-application communications, disproportionate and irrational abrogation and limitation could result. The LPP that has been attached to all privileged communications that have taken place before then would suddenly become abrogated. I see no justified basis for that.

114. For the above reasons, I am of the view that:

(a) Reg 21(1) does not oblige, nor authorize, an aided person’s solicitor or counsel to disclose any privileged communication that has already taken place prior to the application by his client of legal aid;

(b) even if Reg 21(1) continues to apply after termination of assignment, such continuous application should apply only to post-application and pre-termination communications, but not to any pre-application communications.”

94.  This is a confusing passage in as much as it only considers the position on the premise that the matters giving “reason to believe” are communications subject to LPP. The assumption seems to be made that Reg 21(1) would abrogate the LPP that protected these, so that, if the matters giving “reason to believe” included pre-application matters, LPP would be abrogated in respect of a long string of privileged communications. To require the assigned counsel or solicitor to review these would be disproportionate.

95.  The reality is that the “reason to believe” will rarely include privileged matters. Where they do the assigned lawyer is likely to have them in mind without indulging in historical research.

96.  In the light of his answer to the first question set out at para 91 above Yeung J did not find it necessary to answer the third question.

THE DECISION OF THE COURT OF APPEAL

97.  The issue before the Court of Appeal was a narrow one. As the Court observed:[25]

“Contrary to her position before the Judge, the applicant does not now take issue that LPP which existed between an aided person and his assigned solicitor and counsel regarding his financial eligibility for legal aid has been abrogated for the purpose of [R]egulation 21(1)(b) by necessary implication. The only difference between the parties is whether such LPP has been so abrogated only after legal aid has been granted to the aided person, as found by the Judge. That difference has to be resolved by a proper interpretation of regulation 21(1)(b) applying the contextual and purposive approach as said.”

98.  The phrase “abrogated for the purpose of Regulation 21(1)(b) by necessary implication” suggests the application of Yeung J’s theory of “Necessary Limitation”. In the event the Court of Appeal and the parties treated his judgment as finding that Reg 21(1)(b) itself abrogated LPP in relation to communications made after the application for legal aid. In the Court of Appeal MK did not challenge that finding. The only issue was whether the abrogation of LPP effected by Reg 21(1)(b) extended to communications made before the application for legal aid. The reasoning of the Court of Appeal in resolving this issue was as follows:

(1)  The object of Reg 21(1)(b) was the protection of the limited public resources available for the provision of legal aid. A proper construction of the regulation had to give full effect to this crucial purpose;[26]

(2)  “[G]iven the relationship between the aided person and his solicitor or counsel, the drafters must have envisaged the real possibility that the relevant information covered by regulation 21(1)(b) [was] obtained by the solicitor or counsel under circumstances where LPP attaches”.  It followed by necessary implication that this LPP was abrogated by Reg 21(1)(b);[27]

(3)  The lawyer appointed by the Director was often one who was already working for the aided person in circumstances where relevant communications had been made that were subject to LPP. To give full effect to the working of Reg 21(1)(b) its abrogating effect must extend to this LPP also; and

(4)  In the present case the Information was covered by Reg 21(1)(b) and Mr Pun was under a duty to report the same to the Director.

99.  For these reasons the Court of Appeal allowed the appeal and held that the LPP that would otherwise have protected the Information conveyed to the Director by Mr Pun was abrogated by Reg 21(1)(b).

100.  In holding that Mr Pun was under a duty to report the Information to the Director the Court of Appeal did not explain why this was, in circumstances where Mr Pun was no longer assigned to act in the case. This temporal issue remained unaddressed.

101.  It was in these circumstances that the certified question of law was drafted in respect of which permission to appeal was sought and granted. That question was on the false premise that any abrogation of LPP falls to be implied from Reg 21(1) when in fact it is expressly imposed by Reg 12(10).

THE ISSUES TO BE RESOLVED

102.  At the time of the hearing before the Court of Final Appeal (“CFA”) not only the parties but also the Court was labouring under the false premise that the principal issue was whether or not Reg 21(1) implicitly abrogated LPP. For this reason most of the submissions made in the parties’ respective Cases and oral argument were not to the point. The live issues were the temporal ones:

(1)  Does Reg 21(1) impose a duty to report matters that pre-date the assignment of the solicitor or counsel? If yes,

(2)  Does the abrogation of LPP extend to those matters?

(3)  Did the reporting duty imposed by Reg 21(1) apply to Mr Pun, notwithstanding that he had ceased to be an assigned lawyer at the time that he communicated the Information to the Director?

These issues arise whether, as falsely assumed, LPP is abrogated implicitly by Reg 21(1) or whether, as is the true position, LPP is abrogated expressly by Reg 12(10). I turn to consider these issues. They can be shortly resolved.

Does Reg 21(1) impose a duty to report matters that predate the assignment of the solicitor or counsel?

103.  The answer to this question is plainly “yes”. Regulation 21(1) requires the solicitor or counsel to report “forthwith” on having “reason to believe” that a specified abuse of legal aid has occurred. The “reason to believe” may well be based on awareness of a number of facts, some pre-dating and some post-dating assignment. To take a simple example, a solicitor might, before assignment, have learnt that his client had inherited some worthless mining shares. After assignment he might read that gold had been discovered at the mine in question and that the shares had consequently acquired a high value. His reason to believe that the aided person was no longer eligible for legal aid would be based on both matters. Plainly his duty to report to the Director would extend to both matters.

Does the abrogation of LPP extend to matters pre-dating assignment?

104.  Again the answer is plainly “yes”. Keeping to the same example, the solicitor might have learnt of his client’s inheritance when advising him in circumstances giving rise to LPP. The express abrogation under Reg 12(10) would apply to the information, this being “information…which may enable the Director to perform his function under the Ordinance”.  There is no reason why the abrogation of LPP should not apply to this information and every reason why it should. It would plainly be desirable that the Director should learn of this information.

Did the reporting duty imposed by Reg 21(1) apply to Mr Pun, notwithstanding that he had ceased to be an assigned lawyer at the time that he communicated the Information to the Director?

105.  Once again the answer is clear. Regulation 21(1) imposes a duty to report on “an aided person’s solicitor or counsel”. The natural meaning of this provision is that the duty is imposed on a solicitor or counsel who is currently acting as such. As a matter of business efficacy it would not seem reasonable to impose continuing duties on a lawyer who had ceased to act in a case.

106.  Regulation 21(2) places the matter beyond doubt for it applies where the solicitor or counsel is uncertain whether it would be reasonable for him to “continue acting for an aided person”.

107.  For these reasons I hold that Mr Pun was not subject to Reg 21(1) when he reported the Information to the Director. There was no statutory abrogation of the duty of confidentiality imposed on him by LPP.

WAIVER RECONSIDERED

108.  The matter does not end there. When MK selected Mr Pun to be assigned to act for her under her legal aid certificate[28] she knew, or must be deemed to have known, that once assigned he would be under the reporting duty imposed by Reg 21(1). Thus she implicitly consented to this. By so doing she waived any right to assert LPP in relation to any matter covered by the reporting duty. The question then arises of whether the LPP was re-imposed once Mr Pun ceased to be assigned to act for MK. The answer to that question is open to debate, but it does not need to be resolved having regard to MK’s subsequent waiver, which is not open to doubt.

109.  Because of that subsequent waiver, as identified in the first part of this judgment, I would dismiss MK’s Appeal.

Mr Justice Ribeiro PJ:

110.  Accordingly, the Court unanimously dismisses the appeal.