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Legal Professional Privilege and the Competition Ordinance (cap 619) -the New Legal Landscape for Business and the Lawyers
Anne Carver, Honorary Lecturer, The School of Public Health, The Chinese University of Hong Kong
Date: 28 April 2020 (Tuesday)
Time: 2:30pm - 5:45pm
Level: I (Intermediate)
For delegates who have prior knowledge of the subject area
Language: English
Fee: HK$ 1,700
Accreditation: 3 CPD pts (Accredited by The Law Society of Hong Kong)
Ref: L20OT03
Venue: Learning Commons Ltd
Room 1602, 16/F,
1 Duddell Street,
Central, Hong Kong
[View Map]
Presenter's Biography:

Anne now teaches part-time in the School of Public Health and the Business School at The Chinese University of Hong Kong. She is the author of Corporate Governance - the Hong Kong Debate (with Say Goo), and specializes in company law and business law. Previously she taught on the LLB, JD and LLM programmes in the Faculty of Law at the Chinese University. She is particularly interested in directors' duties, corporate governance, the regulatory interface between the Companies Ordinance (cap 622) and the Securities and Futures Ordinance and also the author of Hong Kong Business Law which is a standard Hong Kong student text.

The Competition Commission has powers to require production of documents, require attendance before the Commission to answer questions and to enter and search premises when authorized by warrant under section 48.
These powers under Part 3 of the Ordinance are explained in the Commission's Guideline on Investigations.

Section 58 (1), however, provides that the Commission's powers under Part 3 of the Ordinance do not affect any claims, rights or entitlements that would, but for Part 3 of the ordinance, arise on the ground of legal professional privilege, ("LPP"). However, persons are not required to provide information to the Commission under section 41 or section 42 where that information is protected by a valid claim to LPP.

The substantiation and resolution of legal professional privilege claims requires the solicitor concerned to state whether the privilege is legal advice privilege, litigation privilege or both. The Hong Kong Court of Appeal in Citic Pacific Ltd v Secretary for Justice (No 2) [2015] 4 HKLRD 20 broadened the scope of the right to confidential legal information and made it clear that companies that are subject to investigation can claim that internal documents can be protected if created for the dominant purpose of obtaining legal advice. The 2018 English Court of Appeal case Serious Fraud Office (SFO) v Eurasian Natural Resources Corporation (ENRC) 2018 Civ 2006 (ENRC No 2) reversed the English high Court's ruling in ENRC1 that legal professional privilege would not apply to the documents relating to investigations undertaken by solicitors and forensic accountants into the activities of ENRC and its subsidiaries that ENRC sought to withhold from the Serious Fraud Office. However, the English Court of Appeal left several important issues unresolved but referred approvingly to Citic Pacific Ltd v Secretary for Justice (No 2).

This seminar therefore analyses the investigation powers of the Competition Commission and the current law on legal professional privilege as set out by the Hong Kong Court of Appeal in Citic Pacific Ltd v Secretary for Justice (No 2) [2015] 4 HKLRD 20 and Super Worth International Limited v New Zealand Dairies [2016] 1 HKLRD 281. We shall look briefly at the UK's Serious Fraud Office (SFO) v Eurasian Natural Resources Corporation (ENRC) 2018 Civ 2006 (ENRC No 2), Holyoake v Candy [2017] EWHC 387 (Ch) and Simpkin v The Berkley Group Holdings plc [2017] 1472 (QB) by way of comparison with the Hong Kong perspective and the narrowing of the gap.

We shall also briefly examine the meaning and significance of "public interest" which can, in certain circumstances, override the client's legal professional privilege and note the current debate in LegCo on what public interest should include from the perspective of the lawyers.

In this seminar we shall examine:

  • The importance of legal professional privilege
  • Serious Fraud Office (SFO) v Eurasian Natural Resources Corporation (ENRC ) 2018 Civ 2006 (ENRC No 2 and the closing of the gap between the UK and Hong Kong law
  • Holyoake v Candy [2017] EWHC 387 (Ch)
  • Simpkin v The Berkley Group Holdings plc [2017] 1472 (QB)
  • The academic perspective on Article 35 Basic Law and confidential legal advice and the Hong Kong law enforcement perspective
  • The Law Society Code of Conduct chapter 8 and the solicitor's obligations
  • The difference between confidentiality and privilege
  • The impact of Part 3 of the Competition Ordinance (cap 619) on business with particular reference to the Commission's powers under sections 42 and 43.
  • The significance of section 58 (1) and (2) and the Commission's policy when handling claims to legal professional privilege under a section 48 Warrant.
  • The requirements of the Solicitor's Supporting Statement setting out the special basis and full factual context upon which the privilege is claimed
  • Ciitic Pacific Ltd V Secretary for Justice (No 2) [2015] 4 HKLRD 20
  • Super Worth International Limited v New Zealand Dairies [2016] 1 HKLRD 281
  • Issues relating to self- incrimination
  • The dominant purpose test and the continued relevance of the Three Rivers (No 5) case in other contexts
  • The perspective of the Hong Kong Competition Commission

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