HKSAR v. CHEUNG CHUN YUEN, BARRY

DCCC 718/2017

[2019] HKDC 1566

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 718 OF 2017

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RULING

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Introduction

1.  This is an application by the defendant for disclosure of certain emails in the prosecution’s list of unused materials. The police had obtained during its investigation these emails from the Securities and Futures Commission (“SFC”), which had been partly redacted by the SFC on the grounds of public interest immunity (“PII”) and/or legal professional privilege (“LPP”).  The defendant is now asking for disclosure of these emails in their full and unredacted form.  The application is resisted by the SFC.

The allegation of the prosecution

2.  The defendant faces a charge of conspiring to defraud the SFC, contrary to Common Law and punishable under s.159C(6) of the Crimes Ordinance (Charge 1).  It is alleged in the charge sheet that the defendant:

“between May 2012 and May 2013, in Hong Kong, conspired together with CHOI Tat-ying, Jacky to defraud the Securities and Futures Commission (the ‘SFC’) by dishonestly: -

(a) concealing from or failing to disclose to the SFC material information in relation to the financial position of the Hong Kong Mercantile Exchange (‘the HKMEx’);

(b) causing and/or permitting false or misleading information in relation to the financial position of the HKMEx to be supplied to the SFC; and

(c) causing and/or permitting the HKMEx's reports to the Commission to be prepared in such a way as to show a false or misleading financial position of the HKMEx,

and thereby causing the SFC not to withdraw the authorization it had granted to the HKMEx for providing automated trading services in Hong Kong.”

3.  The authorization referred to in the charge was provided pursuant to s. 95(2) of the Securities and Futures Ordinance, Cap 571 (“SFO”), for the HKMEx to operate a commodities futures market in Hong Kong. Conditions were imposed by the SFC, including, inter alia, that the HKMEx would at all times (i) have financial resources sufficient for the proper performance of its functions and obligations and (ii) disclose to the SFC, within the time and in the manner specified, information and documents relating to its business and operations that the SFC might reasonably request (“the Conditions”).

4.  It is the prosecution’s case that the defendant (Chairman of HKMEx) conspired with Jacky Choi (Chief Financial Officer of HKMEx) to defraud the SFC in the terms particularized in the conspiracy charge.  The effect of this unlawful agreement was that the true financial position of the HKMEx would be concealed from the SFC or the SFC would be misled about it – namely that the HKMEx (at times between May 2012 and May 2013) did not have sufficient financial resources and was thus in flagrant disregard of the Conditions – thereby causing responsible officers of the SFC not to withdraw the authorization.

5.  The prosecution alleges that the defendant, being the chairman in ultimate control over HKMEx, was aware of the dishonest means used in the unlawful agreement.  Jacky Choi will be called as a prosecution witness to prove the complicity of the defendant, notwithstanding that most of the false representations in communications with the SFC were made by Jacky Choi and Ann Cresce (then General Counsel and Head of Compliance of HKMEx).

6.  The defendant has also been charged with fraud, contrary to s. 16A of the Theft Ordinance (Charge 2) but that charge does not directly relate to this application.

7.  The charges in the present case were laid by the Secretary for Justice after a criminal investigation conducted by Commercial Crime Bureau (“CCB”) of the Police.  The SFC is not the prosecuting authority. It is the named victim in the conspiracy charge.  Three senior officers of the SFC will be called to testify for the prosecution at the trial.  The case is to be heard in the District Court commencing on 7 January 2020.

The procedural history

8.  On 24 June 2019, the defence raised the issue about disclosure of redacted parts of the emails obtained by the police from the SFC.  A hearing was fixed before His Honour Judge Dufton on 5 July 2019 for discussion of the application.  Judge Dufton set down 3 days (14-16 October 2019) for the hearing of the application, with directions that the defendant, the prosecution and the SFC were to file written submissions before the hearing. This Court subsequently gave further directions for written submissions to be filed.  The directions have been duly complied with.

9.  Before the hearing of the application on 14 October 2019, the SFC had conducted a review of the redacted emails and the scope of redactions in the redacted emails was narrowed down significantly.  The SFC now only maintains its PII and LPP claims over 79 emails (37 and 42 items respectively).  On 24 September 2019, at the request of the prosecution, counsel on fiat were allowed by the SFC to inspect (but not taking copies or notes) the unredacted copies of the emails of which PII was claimed.  

10.  After the inspection, the prosecution was, and still is, of the view that all the PII portion of the redacted emails are relevant or possibly relevant to the issues in the case.  They are said to be relevant for “at least the following reasons”: (a) they were authorized by or copied to some or all of the SFC officers who are expected to be called as prosecution witnesses, (2) they contained accounts of representations made by HKMEx’s personnel to the SFC.  They are therefore disclosable materials.

The hearing on 14 -16 October 2019

11.  Mr John Reading SC, counsel on fiat, says the prosecution’s position regarding the SFC’s claim of PII is “neutral”.  As the SFC is ultimately in the best position to represent its interests in discharging their functions, it is impracticable for the prosecution to convey those interests in the SFC’s place.  The prosecution therefore is not claiming PII and the SFC would have to make out its own claim.  Mr Reading says he is not even in the position to say whether the prosecution supports the claim.

12.  The SFC is represented by Mr Derek Chan SC in this hearing.  In support of the SFC’s PII and LPP claims, the SFC has prepared (i) a Certificate signed by Mr Ashley Ian Alder, Chief Executive Officer of the SFC dated 12 August 2019 certifying the SFC’s PII claim (“the Certificate”), and (ii)an Affirmation of Mr Andrew John Young, Chief Counsel of the SFC dated 9 August 2019 in respect of the SFC’s LPP claim.

13.  Both Mr Reading and Mr Chan submit that the SFC has the right to make the claim for PII and the standing to be heard in this application.

14.  The defendant’s position is that the SFC, having no locus standi in the hearing of the application insofar as PII is concerned, should not be a party to the application for disclosure.  Mr Eric Kwok SC, counsel for the defendant, submits that the prosecution should assess the relevance, and advance the claim of PII for the SFC if the claim is justified. It is submitted that the PII claim is not justified on the face of its claim. Insofar as the LPP claim is concerned, the Court is invited to examine the emails to find if LPP attaches to them.  Mr Kwok also mentioned about the appointment of a “special advocate” as an option for the Court.

15.  Having heard submissions of all parties in an inter partes hearing, I inspected all the disputed emails in their unredacted form in chambers in the absence of all parties.  I held that the appointment of special advocate was unnecessary.  I also ruled that the SFC had locus to claim both PII and LPP in its own rights and there would be an ex parte hearing to hear their representations in the presence of prosecuting counsel. 

16.  At the suggestion of the Court, the SFC agreed to give a limited waiver to the prosecution for Mr Reading, with his junior Mr Kwan, to be present in the ex parte hearing for the LPP claim.  In my view, the engagement of the prosecution throughout the ex parte hearing would be in the interests of justice to ensure that there will be a fair trial of the defendant.

17.  What happened in the ex parte hearing was that Mr Chan simply took me through the chain of emails demonstrating their connections with each other.  His assistance did not add much to the PII rationales as disclosed in his written submissions and Mr Alder’s Certificate.

18.  Before the inter partes hearing resumed, Mr Kwok had submitted a Statement by Defence and Written Submission of the Defence for PII, setting out the defences (for my eyes only) for the court to consider the relevance of the redacted emails and whether the claim of PII should be overruled.  In the inter partes hearing, all parties were further heard in open court.  

19.  I also directed the SFC to provide a table setting out concise description of each redacted email for the benefit of the Court.  Another table which contained only the broad category of the emails, but not the actual contents, was also supplied to the defence. 

20.  Counsel also assisted the Court as to whether it would be desirable to prepare two separate judgments for this application (one for the parties and another for higher courts).  The benefit of a separate judgment for higher courts is that it can give more detailed information about the disputed emails and the issues as disclosed by the defence (which should not be disclosed in the judgment for the parties).  Mr Chan submitted that such a course was not known in the authorities he is aware of, while Mr Reading found it unnecessary as the higher court could view the emails should there be an appeal from my ruling.

21.  Having inspected all the emails and found the relatively simple and straight forward nature of the redacted material, I agree with the prosecution that it is unnecessary to prepare two separate judgments.

Discussion

The legal principles

22.  There is a general agreement amongst the parties on the disclosure obligation in criminal proceedings and the general principles on PII and LPP.

23.  The prosecution’s duty of disclosure has its foundation in the common law right of the defendant to a fair trial. It is also protected by the Basic Law enshrined in Article 87.  However, an accused does not have an absolute right to the disclosure of all relevant evidence.  The disclosure to be made to the defence is subject to limitations including PII and LPP.

24.  Insofar as the claim of PII is concerned, the trial judge has to balance on the one hand the public interest in non-disclosure against, on the other hand, the interest of justice in protecting an accused from wrongful conviction.  It is a balancing exercise to resolve the conflicting interests in each individual case.  The approach in R v H [2004] 2 AC 134 at paragraph 36 should be adopted.

25.  As regards LPP, all parties agree that unless waived by the client, the privilege is absolute.  It does not involve a balancing exercise of the court to weigh against the competing interests of the parties.  Such privilege, if established, is absolute no matter how compelling any competing public interest factor may be: HKSAR v Wong Chi Wai (2013) 16 HKCFAR 539 at per Ribeiro PJ §§34 & 37. 

The appointment of “Special Advocate”

26.  While Mr Kwok refers to the appointment of a special advocate, he confirms that the defence is not asking the Court to adopt this procedure, which is only suggested as an option that may be considered. 

27.  In my view, the appointment of a special advocate should only be considered in cases of exceptional difficulty.  The appointment may cause unnecessary delay in the proceedings.  Having inspected the disputed materials, I was of the view that the nature and volume of the disputed materials do not justify the appointment of a special advocate.  I therefore decided that such appointment was not necessary.

Whether the SFC has locus standi?

28.  Mr Kwok emphasizes that the prosecution bears the duty (a continuing one) to ascertain and disclose to the defence relevant materials in its possession or control.  On the other hand, the SFC is not the prosecuting authority nor the investigatory agency, and hence not under a direct duty of disclosure.  Therefore, the SFC cannot be a party to the application for disclosure at all and does not have a role to play in this exercise, save that it has a right to convey its claims to the prosecution.  It would then be for the prosecution to assess the relevance and raise with the Court if the PII claim by the SFC is justified in their assessment.  The prosecution cannot take a “neutral” stance.

29.  In my view the SFC, being the owner of confidential materials asked to be disclosed, has a right to be heard in the application for disclosure. Whether it is heard technically as an applicant, a respondent or an interested third party is entirely academic.  If the claim of PII overrides the interest of justice in disclosure, the materials will have to be withheld.

30.  I find the stance taken by the prosecution quite unusual. The charges are preferred by the Secretary of Justice, who is the legal adviser of the government and also the guardian of public interests.  Indeed, when a government department or public body claims PII, the Secretary for Justice is normally expected to be the applicant to observe the duty to protect the public interests in withholding sensitive and confidential materials.  It also seems to me that the English and local authorities provided to the Court would suggest that, in a criminal case the prosecution should be the party asserting PII.    I do not think that the public interest of non-disclosure can be better protected by the SFC asserting the claim and explaining its rationales in its own capacity.

31.  That said, the position taken by the prosecution should not prevent the SFC from exercising its own right to make the claim.  While the SFC is not a governmental department, it is a public body set up by statute (the SFO) to regulate the securities and futures markets in Hong Kong.  It has its statutory duties to observe. In my view, the Commission has its own right to insist on asserting its claim for PII, even if the prosecution is prepared to waive the privilege.

32.  The SFC initially requested for an ex parte hearing (in the absence of both the prosecution and the defence).  I have concern that if such course is to be adopted, justice may not be seen to be done as the SFC is the named victim in Charge 1 and its officers will be called as prosecution witnesses.  In my view, hearing the victim in the absence of both the prosecution and the defendant should be avoided, unless it is necessary.  As counsel of the Department of Justice and counsel on fiat had previously inspected the emails which involve PII, I believed that hearing the submission of the SFC in the presence of the prosecution would not do injustice to the Commission or the defendant.  The presence of the prosecutor as minister of justice, can ensure fairness of trial to be received by the defendant.  I therefore directed that the ex parte hearing to hear the SFC’s submission should be conducted in the presence of counsel on fiat. 

33.  The SFC, at the request of the Court, reasonably provided a limited waiver of the LPP so that counsel on fiat could also sit in the ex parte hearing for the part of emails to which LPP attaches.  I would expect that counsel on fiat, having known the redacted emails under LPP, will ensure that the non-disclosure is not to deprive the defendant of a fair trial. The ex parte hearing was therefore conducted in the presence of counsel for the prosecution and the SFC.

PII portion

34.  There is no dispute between the parties that the House of Lord’s approach in R v H should be adopted.  The House of Lords stated at paragraph 36 of the judgment:-

“36. When any issue of derogation from the golden rule of full disclosure comes before it, the court must address a series of questions:

(1) What is the material which the prosecution seek to withhold? This must be considered by the court in detail.

(2) Is the material such as may weaken the prosecution case or strengthen that of the defence? If No, disclosure should not be ordered. If Yes, full disclosure should (subject to (3), (4) and (5) below be ordered.

(3) Is there a real risk of serious prejudice to an important public interest (and, if so, what) if full disclosure of the material is ordered? If No, full disclosure should be ordered.

(4) If the answer to (2) and (3) is Yes, can the defendant's interest be protected without disclosure or disclosure be ordered to an extent or in a way which will give adequate protection to the public interest in question and also afford adequate protection to the interests of the defence?

This question requires the court to consider, with specific reference to the material which the prosecution seek to withhold and the facts of the case and the defence as disclosed, whether the prosecution should formally admit what the defence seek to establish or whether disclosure short of full disclosure may be ordered. This may be done in appropriate cases by the preparation of summaries or extracts of evidence, or the provision of documents in an edited or anonymised form, provided the documents supplied are in each instance approved by the judge. In appropriate cases the appointment of special counsel may be a necessary step to ensure that the contentions of the prosecution are tested and the interests of the defendant protected (see paragraph 22 above). In cases of exceptional difficulty the court may require the appointment of special counsel to ensure a correct answer to questions (2) and (3) as well as (4).

(5) Do the measures proposed in answer to (4) represent the minimum derogation necessary to protect the public interest in question? If No, the court should order such greater disclosure as will represent the minimum derogation from the golden rule of full disclosure.

(6) If limited disclosure is ordered pursuant to (4) or (5), may the effect be to render the trial process, viewed as a whole, unfair to the defendant? If Yes, then fuller disclosure should be ordered even if this leads or may lead the prosecution to discontinue the proceedings so as to avoid having to make disclosure.

(7) If the answer to (6) when first given is No, does that remain the correct answer as the trial unfolds, evidence is adduced and the defence advanced?

It is important that the answer to (6) should not be treated as a final, once-and-for-all, answer but as a provisional answer which the court must keep under review.”

35.  I shall adopt the same approach.

SFC’s rationales in the claim of PII

36.  The SFC’s PII claim is largely based on the public interest in preserving the confidentiality of communications within governmental or regulatory bodies on the decision-making process concerning matters of public policy.  Mr Chan, counsel for the SFC, submits that the policy in maintaining the confidentiality is underpinned by 4 public interest rationales:

(1)   Proper decisions can only be made if there is complete freedom and candour in the exchange of views and opinions.

(2)   Disclosure of documents of discussion would “create or fan ill-informed or captious public or political criticism”.

(3)   It may undermine the principle of joint/collective responsibility for the decisions of the government.

(4)   Efficiency of government (or regulatory body) would be seriously compromised.

37.  A certificate signed by Mr Ashley Ian Alder, Chief Executive Officer of the SFC dated 12 August 2019 certifying the SFC’s PII claim (“the Certificate”) has been filed.  In the Certificate, Mr Alder certified that the emails to which PII attaches fall within one or more of the 3 categories of documents:

“(1)    Confidential email communications between the Chairman, Chief Executive Officer and Executive Director, Senior Director and/or Director(s) of the Supervision of Markets Division of the SFC (“SOM”), that refer to board meetings and/or the discussions at board meetings and/or the contents of board papers circulated to the members of the executive committee of the SFC concerning HKMEx;

(2)    Confidential email communications that refer to confidential communications and/or notes of meetings between the Chairman, Chief Executive Officer, Executive Director and/or Senior Director of SOM of the SFC and senior personnel of the Financial Services and Treasury Bureau (“FSTB”) concerning HKMEx; and

(3)    Confidential email communications between the Chairman, Chief Executive Officer, Executive Director of SOM and/or Director of the Chief Executive Officer’s Office of the SFC, that refer to internal discussions, analyses or expression of opinions concerning the handling of media inquiries, the information to be disseminated to the press/public and/or matters in respect of public relations concerning HKMEx.”

38.  In the Certificate, Mr Alder held the view that the materials covered by these 3 categories should not be disclosed as their disclosure would be injurious to the public interest on the following grounds:

“(1) Internal communications regarding the inner workings of the Commission

The proper functioning of the regulatory process requires that key members involved in the decision making process of the Commission should be able to express themselves frankly and freely concerning matters it regulates. They must be able to do so in internal communications without fear that documents recording their views and discussions will be disclosed and scrutinized by the public. Board papers and minutes are high level documents, prepared for consideration by and discussion of key members of the Commission in the decision-making process. Consistent with this principle, references, to such documents, information or materials falling within this category in email communications ought to be protected from disclosure in order to enable the proper discharge of the Commission’s regulatory functions. The prospect of disclosure of these confidential documents or materials would inhibit and prejudice the discharge of the Commission’s regulatory functions, as it would inhibit the expression of individual views which could be deliberated upon at the board meetings, a process necessary to the formation of policy and/or the carrying out of its regulatory functions.

(2) Correspondence with the FSTB

The Commission is not part of the Government of the HKSAR; it is an independent statutory body. The Commission is the primary regulator of the securities and futures markets and industry, whilst the Government is separately involved in the formulation of policies in this area in accordance with articles 109 and 110 of the Basic Law. The proper functioning of the regulatory and policy formation process requires that discussions between the Commission and those responsible for formulation of policy should be able to express themselves frankly and freely concerning such matters. They must be able to do so in internal communications without fear that documents recording their views and discussions will be disclosed and scrutinized by the public. Disclosure of confidential communications between the Commission and the FSTB on policy issues, concerns, views and opinions about HKMEx would inhibit and prejudice the discharge of the Commission’s regulatory functions and the effective functioning of the Commission and the Government would be compromised. Consistent with this principle, references to such documents or materials falling within this category in confidential email communications ought to be protected from disclosure in order to enable the proper discharge of the Commission’s regulatory functions.

(3) Internal communications regarding public relations

The proper functioning of the regulatory process requires that officers of the Commission should be able to express themselves frankly and freely concerning matters its regulates, including the handling of disclosures to the public of its policies, the handling of media inquiries, and public relations matters in general.  These officers must be able to do so in internal communications without fear that documents recording their views and discussions will be disclosed and scrutinized by the public.  The prospect of disclosure of confidential communications and/or materials covered in this category would inhibit and prejudice the discharge of the Commission’s regulatory functions, of which its relationship with the public through the media forms part.”

39.  In a gist, it is said that the documents in all three categories fall within a recognized class of documents which should be protected by public interest immunity. The disclosure of such documents would injure the proper functioning of the Commission and the government and their communication/relationship. 

40.  In the tables prepared by Mr Chan, the 3 categories of documents are referred to as Categories A, B and C.  The claim was asserted on the basis of “Class Claim” (a claim based on the class of documents regardless of its contents), and “Contents Claim” (a claim based on the sensitivity of contents of a given document). 

41.  While a class claim has been recognized by the courts, such kind of claim in my view should be confined to information of highest sensitivity.  In this application which involves a criminal case, I am of the view that consideration must be given to the contents of each email to balance whether they should be protected from disclosure.

42.  Mr Kwok for the defendant submits that the SFC’s PII claim lays in maintaining the candour of discussion by officers.  However, such candour does not only live on non-disclosure alone.  There are many other positive ways of promoting and maintaining candour in the officers’ discussions and communications.  It defies logic that officers would be inhibited from expressing their views in their communications relating to such matters in board meetings or board discussions should they know that such communications are disclosable.

The balancing exercise

43.  Applying the test of materiality set out in R v Keane [1994] 1 WLR 746 at 752A-C (adopted by Sir Anthony Mason NPJ in HKSAR v Lee Ming Tee (2003) 6 HKCFAR 336 at §145),documents are disclosable if they:

(1)   Are relevant or possibly relevant to an issue in the case;

(2)   Raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; or

(3)   Hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2). 

44.  In criminal cases, the court has to balance between the public interest in non-disclosure of relevant material and the interests of justice in protecting an accused from wrongful conviction.  In my view, greater weight may have to be attached in favour of disclosure and the scales in the balancing exercise should tend to swing in favour of an accused person whose liberty is at stake (see Sankey v Whitlam (1978) 142 CLR 42,62). 

45.  Materials and information that might be protected under PII are wide ranging.  It has been held to include matters such as national security, prevention of terrorism, prevention of organized crime and matters concerning the proper operation of the public service, etc (see Criminal Evidence in Hong Kong, Division VII para 451).

46.  Due weight has to be attached to the Certificate of Mr Alder.

47.  In the present case, I agree with Mr Chan that there is a public interest in preserving the confidentiality of high-level communications within the SFC on decision making and formulation of policy, and its communications with other government departments (the FSTB in the present case).  Such confidentiality is essential to the proper functioning of the Commission and its operation in the regulation of the local securities and futures markets, as the discussion and communication may involve highly sensitive information that affects the stability of markets and capability of the Commission to regulate the markets.

48.  Having examined the disputed emails, I am satisfied that they all fall within one or more of the 3 categories of communications either amongst senior officers within the SFC or between SFC and FSTB.  There is a public interest in not disclosing the material withheld by the SFC. 

49.  However, such interest does not necessarily protect the materials or information from disclosure.  The sensitivity of the material or information, the possible injury to the government or public body and the interest of the defendant in receiving a fair trial must all be weighed in the balance of each of the documents.

50.  The emails under Categories A and B may relate to the representations made by HKMEx’s personnel to the SFC.  I agree with the prosecution that these emails are relevant and disclosable.

51.  Special attention should be given to Category B emails which are related to the communication between the SFC and the FSTB.  It would appear that the FSTB or the government should have concern about the disclosure.  I have specifically asked Mr Reading about Category B materials which the Secretary for Justice as legal adviser of the government may have interest in it.  Mr Reading confirms again that the prosecution is not claiming PII for this portion of emails. That is undoubtedly a decision within the discretion of the prosecution. It seems to me that the Department of Justice has no keen interest in withholding the communication between SFC and FSTB in this case.

52.  I have considered the defences disclosed to the Court and the submissions made by Mr Kwok.  The defences were only disclosed for the eyes of the court only.  Mindful of the fairness of the trial and that the SFC or the prosecution should not be forewarned of the defences, I should refrain from explaining what the issues and defences disclosed are.  It is, I believe, sufficient to say that the emails falling within Categories A and B may relate to the representations made by HKMEx’ personnel to the SFC. They may be possibly relevant to the issues in the case and may probably further assist the defence.  In fairness to the defendant who is facing criminal allegation, these emails should be disclosed to the defence.  

53.  However, the emails falling within Category C concerning SFC’s officers’ individual views on how to handle media inquiries and public relations matters relating to HKMEx are in my view wholly irrelevant to the issues in the case.  They do not weaken the prosecution case or strength that of the defendant.

54.  Importantly, the nature and degree of the sensitivity of the materials sought to be withheld must be carefully evaluated. It is my view that none of the emails falling within Categories A and B touched on or disclosed highly sensitive political or financial policy of the SFC or the government.  I do not think that the disclosure of any of these emails would be prejudicial to the proper functioning of the SFC or the government.  It appears to me that any possible injury to the SFC would not be a significant one. Put simply, I do not think there is a real risk of serious prejudice to the public interest if full disclosure of these materials is ordered.

55.  Given the stance taken by the prosecution, I also do not believe that the relationship between the SFC and the government will be harmed by the disclosure.

56.  Gravity of the charges faced by the defendant, in my view, is one very important consideration in the balancing exercise.  Conspiracy to defraud (Charge 1) is undoubtedly a very serious charge which carries a maximum penalty of 14 years’ imprisonment.

57.  With all the relevant factors weighed on the scale, I am of the view that the balance comes down resoundingly in favour of disclosure of the emails falling within Categories A and B. 

58.  Emails under Category C are irrelevant to issues of the case and should therefore be withheld from disclosure.  The decision in relation to Category C materials will be reviewed as the trial progresses.

LPP portion

59.  In Hong Kong, LPP is constitutionally guaranteed by Article 35 of the Basic Law.  LPP is absolute in the sense that once it is established, the court is not required to undertake a balancing act of the competing interests of the parties.  See judgments of the Court of Final Appeal in HKSAR v Wong Chi Wai (2013) 16 HKCFAR 539 and Secretary for Justice v Florence Tsang Chiu Wing (2014) 17 HKCFAR 739.

60.  The LPP claim in the instant case concerns about the confidential email communications involving the Chief Counsel of the SFC for the purposes of legal advice concerning HKMEx.  Evidence has been provided by an affirmation of Mr Young dated 9 August 2019 in support of the LPP claim.  Mr Young affirmed that the emails were confidential communications for the purpose of obtaining or discussing legal advice in respect of the HKMEx.

61.  Having examined all the emails under LPP portion, I have no doubt that they are all covered by LPP (either as legal advice privilege and/or litigation privilege) and therefore protected from disclosure.

Disposition

62.  In the result, I order that the emails falling within Categories A and B be disclosed in full and unredacted form to the prosecution and the defence.  Emails under Category C are to be withheld from disclosure.  The disclosed emails are subject to the condition that they will not be disclosed, retained or used except for the purpose of the criminal proceedings the defendant is now facing.

63.  I should make it clear that the order of disclosure is not to be viewed as a criticism of the SFC, which is observing a duty in ensuring the proper discharge of its regulatory function.

64.  Lastly, I thank all senior counsel and their legal teams for their helpful submissions and legal research.