In ancillary relief proceedings connected to divorce proceedings, a major issue between the Husband and the Wife concerned the extent of the Husband’s assets available for distribution. The Wife alleged that a set of documents (which if valid would have depleted the assets available for distribution) were recent forgeries. The Wife later obtained court orders for discovery in relation to the relevant documents on the basis of the Cox and Railton rule. This rule provides that communications which are criminal or intended to further any criminal purpose cannot be protected by legal professional privilege ("LPP").

The Director of Public Prosecutions ("DPP") having been notified of the above ruling, the Secretary for Justice ("SJ") made an application to the court for the DPP to be given access to the relevant documents in aid of a criminal investigation, and such application was granted at first instance. Subsequently, the Court of Appeal ("CA"), on the one hand, ruled that the DPP could not simply rely on the lower court’s Cox and Railton Ruling obtained by the Wife, but would himself have to establish the applicability of the rule before he could be granted access to the documents. The matter was accordingly remitted to be decided by the Court of First Instance ("CFI") in due course. On the other hand, the CA considered the Wife to be in a different position from the DPP and upheld the CFI’s decision that she was entitled to disclose the relevant documents to the DPP. The Husband and his Father then appealed to the Court of Final Appeal ("CFA").

The CFA’s Decision

The CFA held that it was common ground that LPP could not be asserted in respect of the disputed documents. It was held at the lower court that they were not protected by LPP as against the Wife because of the Cox and Railton ruling. Such ruling was not subject to any appeal.

Notwithstanding the above, the CFA said the Wife was not free to use the documents in question as she wished. It had long been established that a party who obtains documents on discovery gives an implied undertaking to the court that he or she will make use of them only for the purpose of that action and no other purpose. Other use would be a clear breach of the implied undertaking.

Where release from the undertaking is sought, it is for the person who obtained the documents"to demonstrate cogent and persuasive reasons why it should be released". Each case turns on its own facts. The court "will not release or modify the implied undertaking given on discovery except in special circumstances and where the release or modification will not occasion injustice to the person giving discovery."

The Wife argued that she had a cogent and persuasive reason to be released from her implied undertaking because it was in the public interest to facilitate the reporting of crime by an alleged victim and the proper investigation of the suspected crime.

The CFA said it would be impossible to give proper consideration to the court’s exercise of discretion regarding the release of the Wife from her implied undertaking without taking into account what the effect of such release would be on the Husband’s and the Father’s claim to LPP as against the DPP. The CFA emphasised that LPP is a fundamental right which the courts will jealously protect. In Hong Kong, LPP is constitutionally guaranteed by Article 25 of the Basic Law. While an exercise of balancing competing interests is required in deciding whether someone should be released from the implied undertaking, it is well established that "LPP 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 CFA’s view was that it would be wrong in principle to release the Wife from her implied undertaking with the consequence of enabling her to provide to the DPP documents for which a claim for LPP had been made and not yet ruled upon by the court. It was not simply a question of directing the Wife to await the final outcome of the SJ’s application for access to the disputed documents. If the SJ were to succeed in obtaining access to the same documents as the Wife obtained, no practical difficulty would arise.

However, it was plainly possible that the outcome of the DPP’s pending application might result in his failure to obtain access at all, or obtaining a narrower range of documents than those obtained by the Wife. In such a case, it would be highly incongruous for the Wife to be released from her undertaking and thus permitted to provide to the DPP documents which the Court had protected as against him by LPP. To allow the court’s ruling to be side-stepped would undermine the court’s decision and bring the administration of justice into disrepute.

It was held by the CFA that no cogent argument had been advanced for releasing the Wife from her undertaking at all. Holding the Wife to her undertaking did not mean that the reporting of an alleged crime would be stifled – the CFA noted that the relevant report had been made to the DPP. If and to the extent that the DPP succeeded in bringing the documents concerned within the Cox and Railton rule, there would be no impediment to the DPP using those documents in the criminal investigation. The DPP could discuss them with the Wife without her having to be released from her undertaking. It was appropriate that the availability of such documents for use in a criminal investigation should depend on the DPP establishing his entitlement to such use and not on the Wife being relieved of her implied undertaking, regardless of the outcome of the DPP’s application. For the above reasons, the CFA allowed the appeal.