Top Court upholds 'absolute' legal privilege, denies use of Florence Tsang documents
Decision prohibits justice department from using divorce documents obtained by Florence Tsang in a criminal probe of her ex-husband
The top court reaffirmed yesterday that legal professional privilege was an "absolute right" in the Basic Law as it denied the Department of Justice access to legal documents from the billion-dollar divorce case of a property tycoon's son.
The five judges of the Court of Final Appeal found the secretary for justice should be allowed access to the documents, which are required for a criminal investigation, only if they were not protected by privilege.
They also reversed an order from a lower court that allowed Florence Tsang Chiu-wing, wife of Samathur Li Kin-kan, to release the documents.
"It has repeatedly been stressed that [legal professional privilege] is a fundamental right which the courts will jealously protect," Mr Justice Roberto Ribeiro wrote in the judgment.
"While … balancing competing interests is required in deciding whether someone should be released from the implied undertaking, it is well established that [legal professional privilege] does not involve such a balancing of interests. It is absolute and is based not merely upon the general right to privacy but also upon the right of access to justice."
The documents related to a loan agreement referred to in the divorce case between Tsang and her former husband Li, the son of tycoon Samuel Tak Lee.
The couple married in 2000 and their marriage broke down in 2008, followed by a legal battle over how to divide their assets.