SIU LAI PING v. ANDY BROWN

HCA 78/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 78 OF 2008

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DETERMINATION

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1.  The Plaintiff sought specific discovery. The only remaining items of the documents are Document number 2 and 4 in respect of which the Defendant resisted discovery on the ground that they are protected by legal professional privilege.

2.  On the hearing of the summons on 8 September 2010, after hearing submissions from counsel, I considered that the Defendant’s 1^st affidavit in opposition was not satisfactory, and therefore directed the Defendant to file a further affidavit to explain the circumstances in which these two documents came into existence to support a claim for privilege.

3.  The Defendant’s 2^nd Affidavit is now filed, and both counsel has lodged further written submissions.

4.  I will now dispose of the remaining two items on paper (in lieu of an oral hearing).

A.  Document 2: Paper on the ongoing sensitive HR issued referred to in the Executive Director’s report

A1.  Nature of the Document

5.  In paragraph 8 of the Defendant’s 2^nd Affidavit, he explained the circumstances leading to his preparation of Document 2.

6.  In the months between June and September 2007, the Defendant, on behalf of KFBG, on many occasions sought legal advice from Messrs. Mayer Brown JSM solicitors in connection with the Plaintiff’s work performance.  Subsequent to the advice sought, he prepared Document 2 on “the issues involving the Plaintiff and to inform” the board members of KFBG of the legal advice he had obtained from the legal advisers for the purpose of the upcoming Board Meeting to be held on 28 September 2007.

A2.  Discussion

7.  The party claiming privilege has the burden of proving the document sought is privileged, and an affidavit for such purpose is conclusive.[1]

8.  From the further affidavit evidence, I think Document 2 consists of two types of information.  The first type concerns with the Plaintiff’s work performance (as Defendant deposed).  The second type would be the legal advice the Defendant had obtained from the Mayer Brown JSM solicitors.

9.  The fist type clearly is not privileged, and discoverable, while the second type is, and therefore protected.

10.  It there follows that content of the first type in Document 2 should be disclosed.

11.  I’m inclined to order discovery of a redacted version of Document 2 by deleting all the materials relating to the second type, and I so order.

12.  Without knowing how closely bounded up the two types of information are in Document 2 that may make them difficult or impossible to be separated for the purpose of redaction, I would therefore give liberty for the parties to apply for further directions should any such difficulty arise.

B.  Document 4: Email from Ruy Barretto

B1. Nature of the Document

13.  Ruy Barretto was one of the board members of KFBG, and he was supposed to attend the Board meeting on 28 September 2007 to discuss the matters contained in Document 2 the Defendant had prepared.  As he was unable to attend the meeting, he wrote Document 4 to the Defendant and all Board members to express his views on the legal advice obtained from the Mayer Brown JSM solicitors (paragraph 11 of the Defendant’s 2^nd Affidavit).

B2. Discussion

14.  Given the clear assertion that Document 4 contains Ruy Barretto’s views regarding the legal advice the Defendant had obtained, I am satisfied that the Defendant has established privilege concerning Document 4, and decline an order for discovery.

C. Costs

15.  This is a situation where the Defendant can be broadly described as having won some but also lost some in relation to the remaining items of the summons.  Hence, for the remaining 50% of the costs of the summons that I have not yet made any order, I would order no costs, which order is nisi.