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Article: Legal Professional Privilege: Is It Absolute?

TitleLegal Professional Privilege: Is It Absolute?
Authors
Issue Date2006
PublisherSweet & Maxwell Asia. The Journal's web site is located at http://www.hku.hk/law/hklj/
Citation
Hong Kong Law Journal, 2006, v. 36 n. 3, p. 461-479 How to Cite?
AbstractLegal Professional Privilege ('LPP') is deeply rooted in the common law and has even been described as a right of a constitutional nature. In the recent decision of the Three Rivers case (2005), Lord Scott described LPP as an 'absolute right', subject only to the well established crime / fraud exception. In another decision, Taylor CJ opined that once LPP is established, it is not subject to any further balancing exercise. In contrast, the Canadian Supreme Court refused to adopt the same approach and decided to subject LPP to the same proportionality exercise as any fundamental constitutional right. This article explores the scope of LPP and argues that the Canadian approach should be preferred. While the Canadian approach seems to have been endorsed by the Court of Final Appeal in a recent disciplinary appeal, it criticises the Court of Final Appeal for having swung the pendulum too far by adopting a relatively loose standard to allow LPP to be abrogated. Finally, it explores how the Court should approach an application for a warrant to conduct covert surveillance under the newly adopted Interception of Communication and Surveillance Ordinance 2005 when such covert surveillance may interfere with LPP.
Persistent Identifierhttp://hdl.handle.net/10722/87972
ISSN
2015 Impact Factor: 0.215
2015 SCImago Journal Rankings: 0.101

 

DC FieldValueLanguage
dc.contributor.authorChan, Jen_HK
dc.date.accessioned2010-09-06T09:36:50Z-
dc.date.available2010-09-06T09:36:50Z-
dc.date.issued2006en_HK
dc.identifier.citationHong Kong Law Journal, 2006, v. 36 n. 3, p. 461-479en_HK
dc.identifier.issn0378-0600en_HK
dc.identifier.urihttp://hdl.handle.net/10722/87972-
dc.description.abstractLegal Professional Privilege ('LPP') is deeply rooted in the common law and has even been described as a right of a constitutional nature. In the recent decision of the Three Rivers case (2005), Lord Scott described LPP as an 'absolute right', subject only to the well established crime / fraud exception. In another decision, Taylor CJ opined that once LPP is established, it is not subject to any further balancing exercise. In contrast, the Canadian Supreme Court refused to adopt the same approach and decided to subject LPP to the same proportionality exercise as any fundamental constitutional right. This article explores the scope of LPP and argues that the Canadian approach should be preferred. While the Canadian approach seems to have been endorsed by the Court of Final Appeal in a recent disciplinary appeal, it criticises the Court of Final Appeal for having swung the pendulum too far by adopting a relatively loose standard to allow LPP to be abrogated. Finally, it explores how the Court should approach an application for a warrant to conduct covert surveillance under the newly adopted Interception of Communication and Surveillance Ordinance 2005 when such covert surveillance may interfere with LPP.-
dc.languageengen_HK
dc.publisherSweet & Maxwell Asia. The Journal's web site is located at http://www.hku.hk/law/hklj/en_HK
dc.relation.ispartofHong Kong Law Journalen_HK
dc.rightsCreative Commons: Attribution 3.0 Hong Kong License-
dc.titleLegal Professional Privilege: Is It Absolute?en_HK
dc.typeArticleen_HK
dc.identifier.openurlhttp://library.hku.hk:4550/resserv?sid=HKU:IR&issn=0378-0600&volume=36&issue=3&spage=461&epage=480&date=2006&atitle=Legal+Professional+Privilege:+Is+It+Absolute?en_HK
dc.identifier.emailChan, J: johannes@hku.hken_HK
dc.identifier.authorityChan, J=rp01292en_HK
dc.description.naturepublished_or_final_version-
dc.identifier.hkuros134828en_HK
dc.identifier.volume36-
dc.identifier.issue3-
dc.identifier.spage461-
dc.identifier.epage480-

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