A Deceptively Complex Question
“Do I need to disclose this document to the other side?” is one of the most frequently asked questions arising in the context of dispute resolution and often one of the most deceptively difficult to answer in practice.
At the threshold, the question turns on the forum. For litigation before the Hong Kong courts, the starting point is whether the document is relevant and within the party’s possession, custody, or power. In international arbitration, the rules differ. Where the IBA Rules on the Taking of Evidence in International Arbitration govern (and the expansive American or English style discovery is inapplicable), document requests are typically made by way of Redfern Schedules, and a responding party must assess a range of factors including whether each requested document is relevant and material to the outcome of the case before deciding whether to object.
Across both forums, a distinct and frequently determinative sub-issue arises: is the document protected by privilege, such that the party cannot be compelled to disclose it? This requires a robust review of the facts and the document in question, applying the applicable rules of privilege.
This article unpacks the key principles of legal professional privilege (“LPP”) under Hong Kong law, which consists of legal advice privilege and litigation privilege, and highlights the practical issues that most often arise.
It All Boils Down to the Dominant Purpose
LPP as a Fundamental Right
Where LPP exists and is not waived or abrogated, it is absolute, and not subject to any balancing of competing public interests against each other. The rationale is that a client must be able to consult their lawyer in confidence.
It should be noted, however, that LPP is not entirely without exception. For instance, documents brought into existence as part of a fraud do not attract protection.
The Dominant Purpose Test
A document which is brought into existence for the dominant purpose of obtaining legal advice, or conducting litigation, is privileged. The dominant purpose test has been confirmed by the Hong Kong Court of Appeal in Citic Pacific Ltd v Secretary for Justice (No 2) [2015] 4 HKLRD 20 as the correct test for LPP in Hong Kong.
Documents do not become privileged by the mere fact that they have at some time been submitted to a lawyer. Pre-existing documents created for some other purpose and which do not attract privilege do not subsequently become privileged simply because they are handed to a lawyer. The inquiry is directed to the dominant purpose at the time the document was created, not to its subsequent use.
Legal Advice Privilege — Scope and Limits
Legal advice privilege attaches to confidential communications between a client and their lawyer, where the lawyer is acting in the course of the professional relationship and within the scope of the lawyer’s professional duties, for the dominant purpose of enabling the client to seek, or the lawyer to give, legal advice or assistance in a relevant context.
Legal advice is not confined to informing the client of the law; it may include advice about what should prudently and sensibly be done in the relevant legal context. This includes communications passed between a client and their lawyer as part of a chain of communications aimed at keeping both informed so that advice may be sought.
As regards the client’s “internal documents”, an internal confidential document may be equally protected by privilege if it comes into existence as part of a process of communication with the client’s lawyer for the dominant purpose of obtaining legal advice or assistance.
Litigation Privilege — Broader Scope, Narrower Circumstances
Litigation privilege applies more widely than simply to communications between a client and their lawyer.
Litigation privilege attaches to confidential communications between a client or their lawyer and a third party for the dominant purpose of use in litigation that, at the time the communication is made, is proceeding or pending, or is reasonably in contemplation, and to which the client is or reasonably anticipates becoming a party. It is therefore wider in scope than legal advice privilege, but is invoked in narrower circumstances requiring existing litigation or litigation reasonably in contemplation.
No Universal Application of Content-Based Approach Over Context-Based Approach
The party seeking to rely on privilege bears the burden of proving it.
The most recent development is the Hong Kong court’s decision in Angela Chen v Wai Wai Chen & Lui Fung Mei Yee Mabel (Respondent) [2026] HKCFI 1584, where a key issue heavily contested before the court was whether drafts prepared by solicitors were protected by legal advice privilege, and whether the court should examine the contents of those drafts in order to determine the privilege claim. The court rejected the universal application of the “content approach” to all cases in which privilege is asserted, and held, on the facts of the case, that:
- the party asserting legal advice privilege was not required to provide evidence analysing the content of the communications or documents in question; and
- it was sufficient for the party to show that such communications or documents were created in a proper legal context, being the engagement of a lawyer in a professional capacity to give legal advice.
The Factor Often Overlooked: Confidentiality and Waiver
Privilege and confidentiality are related but distinct concepts. Legal professional privilege affords protection from disclosure, and is not to be equated with the duty of confidentiality arising from the solicitor and client relationship. Nevertheless, the subject communications or documents must be confidential in order to attract legal professional privilege. Where, for example, privileged legal advice is circulated to a third party, the requisite confidentiality may be lost, and such dissemination may be treated as amounting to a waiver of LPP. The court will examine whether there was an intention to waive privilege.
Even where privilege is ultimately preserved, the risks of having sensitive communications reach the opposing party, even temporarily, are considerable. Parties must exercise vigilance in the handling of privileged materials.
A Closer Look at “Clients” and “Lawyers”
Hong Kong Courts’ Rejection of the Three Rivers Definition of “Client”
For corporations, the question of which employees constitute the “client” for the purposes of legal professional privilege has practical importance.
Hong Kong courts have declined to follow the English law approach as set out in Three Rivers District Council v Bank of England (No 5) [2003] QB 1556. As held in Citic Pacific (No 2), “client” is simply the corporation, and is not limited to members of an identified group authorised to seek and receive legal advice on behalf of the corporation. This means that communications between a corporation’s lawyers and employees who fall outside that group may attract legal advice privilege, provided that the dominant purpose of those communications was the obtaining of legal advice.
Who Qualifies as a “Lawyer”?
Communications between a party and its in-house lawyers can be subject to legal professional privilege.
The privilege does not extend to communications with professionals such as an accountant who is not a qualified lawyer, even if the communications were for the purpose of obtaining legal advice on tax.
The Multijurisdictional Dimension
For organisations operating across multiple jurisdictions, a critical yet often underestimated risk lies in the false assumption that a document protected under the law of a jurisdiction will be equally protected in other jurisdictions.
Insofar as Hong Kong proceedings are concerned, generally speaking, LPP is to be determined by reference to the lex fori. This means that, where documents are sought in Hong Kong proceedings, it is Hong Kong privilege law that governs whether privilege may be claimed. A communication or document which satisfies those requirements under Hong Kong law will attract privilege, even if it would not be so protected under the law of another jurisdiction.
However, privilege claimed successfully in Hong Kong proceedings does not guarantee protection in proceedings elsewhere. For organisations potentially exposed to proceedings in more than one jurisdiction, this analysis should form part of early strategic planning.
By way of illustration, English and EU privilege laws differ from those in Hong Kong. The Bird & Bird team have recently published two articles on the latest developments in English privilege law (here) and on new legislation in France in relation to in-house counsel confidentiality (here).
You may access our multijurisdictional privilege comparison tool here.
Commentary
Privilege issues are deceptively simple at first glance but frequently complex in application. In our experience, the most common pitfalls arise not from a misunderstanding of the legal principles, but from a failure to apply them early and systematically, whether in the creation and handling of documents, the structuring of internal communications, or the assessment of multijurisdictional exposure. Organisations that integrate privilege considerations into their compliance and dispute management frameworks, rather than treating them as an afterthought at the point of disclosure, are better positioned to protect their interests when a dispute arises.
For further information, please contact:
Danny Leung, Partner, Bird & Bird
danny.leung@twobirds.com
