Defence lawyer opposes judge's proposal over secret ICAC tape

A defence lawyer yesterday opposed a District Court judge's proposal that senior Justice Department officials be asked to determine whether a conversation secretly taped by the ICAC enjoyed the protection of lawyer-client privilege, arguing that such delegation of duty amounts to usurping the function of the court.

Deputy District Court Judge Julia Livesey said it was not appropriate for her to listen to the secretly taped conversation between the defendant and his lawyer and then to decide whether it was a privileged communication.

Judge Livesey proposed that senior Justice Department officials with no ties to the case listen to the tape and make the determination instead.

The proposal arose from an application by government prosecutor Giles Surman, asking the judge to determine if the conversation between Yu Chi-wan, one of four defendants accused of corruption, and his lawyer was privileged.

The court was told that the November 2002 meeting between Yu and his lawyer, Louis Fung, was covertly taped by the ICAC with the assistance of an undercover agent, Tang Hop-sing, present at the meeting.

Judge Livesey initially suggested that Ian McWalters SC and Kevin Zervos SC, both senior assistant directors of public prosecution, be asked to make that determination. Both have been involved with ICAC prosecutions in recent years.

She later changed her mind, suggesting that officials from the civil division of the Justice Department be asked to make the determination instead.