Legal Professional Privilege彭 耀 鴻

Hartman J HCAL 133/2002 ( 星 島 日 報 報 道 ) 中 國 銀 行 要 員 的 親 戚 被 控 洗 黑 錢 六 億 元 案 件 中 ， 大 律 師 彭 耀 鴻 替 被 告 夫 婦 申 請 保 釋 期 間 ， 替 被 告 變 賣 名 下 股 票 籌 集 訴 訟 費 ， 但 為 警 方 拘 捕 ， 指 他 對 兩 人 這 一 涉 嫌 轉 移 財 產 舉 動 知 情 不 報 。 彭 指 警 方 侵 犯 律 師 為 當 事 人 保 密 的 專 業 權 利 ， 因 此 聯 同 大 律 師 公 會 及 律 師 會 ， 向 高 院 尋 求 司 法 覆 核 ， 要 求 裁 定 警 方 非 法 拘 捕 。
reviews this legal principle:

13. Practicing barristers, admitted in terms of the Legal Practitioners Ordinance, Cap.159, are constrained to adhere to the Code of Conduct of their profession under pain of professional and civil sanctions. In adhering to that Code, one of their fundamental duties is to preserve the confidentiality of their clients affairs. Rule 116 of the Code of Conduct of the Hong Kong Bar describes that duty succinctly in the following terms :
"A barrister employed as Counsel is under a duty not to communicate to any third person information which has been entrusted to him in confidence, and not to use such information to his client's detriment or to his own or another client's advantage. This duty continues after the relation of Counsel and client has ceased. A barrister's duty not to divulge confidential information without the consent of his client, express or implied, subsists unless he is compelled to do so by order of a Court or the circumstances give rise to a public duty of disclose or the protection of the barrister's professional interests requires it."
14. The purpose of LPP has been stated by Lord Bingham CJ in R v. Manchester Crown Court, ex parte Rogers [1999] 1 WLR 832 (at 839) :
" It is in my judgment important to remind oneself of the well established purpose of legal professional privilege, which is to enable a client to make full disclosure to his legal adviser for the purposes of seeking legal advice without apprehension that anything said by him in seeking advice or to him in giving it may thereafter be subject to disclosure against his will ... legal professional privilege applies, and applies only, to communications made for the purpose of seeking and receiving legal advice." [ my emphasis]
15. The rule of LPP which applies with equal force to solicitors is long established in the common law. Over 150 years ago, in Greenough v. Gaskell (1833) 1 My.& K. 98, 103, in himself reviewing earlier authorities, Lord Brougham commented :
" The foundation of this rule is not difficult to discover. It is not (as has sometimes been said) on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford them protection ... But it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on without the aid of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings."
16. LPP is today recognised as a fundamental human right, one protected in such conventions as the International Covenant for Civil and Political Rights ('the ICCPR'). In R (Morgan Grenfell & Co. Ltd) v. Special Commissioner of Income Tax and another [2002] 2 WLR 1299, Lord Hoffmann expressed it thus (at 1302) :
" LPP is a fundamental human right long established in the common law. It is a necessary corollary of the right of any person to obtain skilled advice about the law. Such advice cannot be effectively obtained unless the client is able to put all the facts before the adviser without fear that they may afterwards be disclosed and used to his prejudice."
17. In Hong Kong, LPP is protected by the Basic Law as a fundamental right. Article 35 of the Basic Law guarantees that
" Hong Kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts, and to judicial remedies." [my emphasis]
18. Article 87 of the Basic Law makes it plain that such a fundamental safeguard as LPP, central to Hong Kong's administration of justice prior to the change of sovereignty, shall remain of equal force and effect after it
" In criminal or civil proceedings in the Hong Kong Special Administrative Region, the principles previously applied in Hong Kong and the rights previously enjoyed by parties to proceedings shall be maintained."
19. The nature (and importance) of LPP has recently been stated in the clearest 19terms by Lord Taylor CJ in his speech in the House of Lords in R v. Derby Magistrates Court, ex parte B [1996] 1 AC 487 (at 507) :
" The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests." [my emphasis]
20. As far back as 1792, the principle was stated that once LPP is established, the lawyer's mouth is "shut for ever" : see Wilson v. Rastall [1782] 4 Durn. & E. 753 (at 759) per Buller J, cited with approval by Taylor CJ in R v. Derby Magistrates (supra).
21. As was said by Lord Brougham, the rule of LPP has not been constructed merely to serve the interests of lawyers. It is vital to the administration of justice generally. Any encroachment on that rule therefore effects not just the legal system but has an impact too on the broader public interest.
22. In summary, therefore, LPP is an ancient rule of common law, a rule which reflects a fundamental right of confidentiality between a client and his legal advisor, a right protected by the Basic Law. It is a rule recognised as constituting one of the pillars upon which the administration of justice rests in an open society.
When the privilege does not apply
23. With regard being had to any constitutional restraints, it is accepted that LPP may be limited by legislation. This will be so when there is express statutory language to that effect or when, as a matter of interpretation, the implication that it is limited is clearly necessary.
24. Within the common law itself, LPP will not apply in respect of communications made in order to obtain advice for a criminal purpose. That exception applies whether the lawyer knows or is ignorant of the criminal purpose. The rule was stated in R v. Cox and Railton [1884] 1 QBD 153 (commencing at 168) in the following terms :
" ... the rule does not apply to all which passes between a client and his solicitor, but only to what passes between them in professional confidence, and no Court can permit it to be said that the contriving of a fraud can form part of the professional occupation of an attorney or solicitor.
... In order that the rule may apply there must be both professional confidence and professional employment, but if the client has a criminal object in view in his communications with his solicitor one of these elements must necessarily be absent. The client must either conspire with his solicitor or deceive him. If his criminal object is avowed the client does not consult his adviser professionally, because it cannot be the solicitor's business to further any criminal object. If the client does not avow his object he reposes no confidence, for the state of facts, which is the foundation of the supposed confidence, does not exist. The solicitor's advice is obtained by a fraud."
25. The exception has been so stated in a number of subsequent authorities, among them Banque Keyser Ullmann SA v. Skandia (UK) Insurance Co. Ltd [1986] 1 Lloyds Reports 336 in which Lord Justice Parker in the Court of Appeal said :
" The rationale appears to be perfectly plain, namely, first, that a fraudulent party who communicates with his solicitor for the purposes of the furtherance of a fraud or crime is both communicating with his solicitor otherwise than in the ordinary course of professional communications, and secondly that in any event it would be monstrous for the Court to afford protection from production in respect of communications which are made for the purpose of fraud or crime."
26. How then is it to be determined when LPP applies and when, by reason of what I will call criminal or fraudulent purpose, it does not? A mere suspicion or surmise will not strip otherwise confidential communications of their confidentiality. In Bullivant v. Attorney General for Victoria [1901] 196 the Earl of Halsbury L.C. said (at 201) :
" ... if it is sufficient for the party demanding the production [of documents claimed to be subject to LPP] to say, as a mere surmise or conjecture, that the thing which he is so endeavouring to inquire into may have been illegal or not, the privilege in all cases disappears at once. The line which the Courts have hitherto taken, and I hope will preserve, is this that in order to displace the prima facie right of silence by a witness who has been put in the relation of professional confidence with his client, before that confidence can be broken you must have some definite charge either by way of allegation or affidavit."
He continued (at 203) :
" What you would have to do when you got to trial and the privilege was pleaded would be this : the judge would have to satisfy himself whether there was really established to his satisfaction a charge of fraud or something that would displace the privilege I do not say prove it-but it would be a reasonable and proper thing under the circumstances to establish the proposition that the issue to be tried was whether there was really a fraud or not, and that this was a piece of evidence relevant to establish the fraud."
27. In O'Rourke v. Darbishire [1920] AC 581 (at 632) Lord Wrenbury said that for the privilege to be stripped away the court must be satisfied that the allegations of fraud (or other criminal purpose) "are not merely the bold assertions of a reckless pleader but are such as to be regarded seriously as constituting prima facie a case of fraud resting on solid grounds".
The extent of legal professional privilege in respect of information related to payments of money
28. The reason for the applicant's arrest was founded essentially on the allegation that he had failed to disclose actions being taken by his client to place a large amount of money with a firm of solicitors, the same solicitors who, in representing the client, had retained the applicant's services. This raises a specific issue concerning the scope of LPP; namely, the extent to which the privilege encompasses information about the payment of moneys to meet fees charged or to be charged.
29. In R v. Manchester Crown Court, ex parte Rogers (supra), Lord Bingham, having defined the extent of LPP as applying only to "communications made for the purpose of seeking and receiving legal advice", went on to consider whatever certain documents in respect of which LPP was claimed were protected by the privilege. In this regard, he said (at 839) :
" The record of time on an attendance note, on a time sheet or fee record is not in my judgment in any sense a communication. It records nothing which passes between the solicitor and the client and it has nothing to do with obtaining legal advice. It is the same sort of record as might arise if a call were made on a dentist or a bank manager. A record of an appointment made does involve a communication between the client and the solicitor's office but is not in my judgment, without more, to be regarded as made in connection with legal advice. So to hold would extend the scope of legal privilege far beyond its proper sphere, in my view."
30. In R v. Crown Court at Inner London Sessions, ex parte Baines & Baines (a firm) and another [1987] 3 All ER 1025 the headnote reads :
" The records of a conveyancing transaction itself were not privileged under s 10 of the 1984 Act as being communications between a legal adviser and his client in connection with the giving of legal advice, and therefore a solicitor could be required to produce such records to the police pursuant to an order made under para 1 of Sch 1 to that Act. However, correspondence between the solicitor and his client regarding the conveyance would be privileged if it contained advice."
31. What then of information concerning payments made to legal practitioners? In Re Furney [1964] ALR 814 a solicitor was required to attend before a registrar to answer questions in respect of his client's affairs. One of the questions related to payments made by the client to the solicitor within a stated period. The solicitor refused to answer on the basis that to do so would breach LPP. Clyne J directed that the question should be answered as it related to matters of objective fact.
32. Re Furney was cited with approval by the Court of Appeal of Queensland in Packer v. Deputy Commissioner of Taxation (1984) 1 Qd R 275, a decision in which it was held that certain trust account ledgers held by solicitors were not subject to LPP. The core issue recognised by the court was whether the documents had been made or brought into existence for the sole purpose of seeking or giving advice or for the sole purpose of use in existing or anticipated litigation. Sheperdson J, a member of the court, observed :
"Now it seems to me that as trust accounts are not solely within the realm of solicitors one must be careful to ensure that a client is not able to gain legal professional privilege simply by ensuring that a particular transaction passes through a solicitor's trust account even though it might well have just as conveniently passed through the trust account of say a stock and station agent or a real estate agent. In other words this Court should be careful to ensure that as a class solicitor's trust account ledgers are not to be made a kind of Alsatia for persons who, irrespective of advice from solicitors, have decided to move their moneys in a certain way.
I should add that this is not to say that trust account ledgers can never be the subject of legal professional privilege whether such privilege exists will depend on the particular ledger and whether or not that ledger is written up in such a way that it records the advice given by the solicitor to the client."
33. Re Furney was further cited with approval in Re Ontario Securities Commission and Greymac Credit Corp. (1983) 146 DLR (3d) 73, a decision of the Ontario High Court of Justice, Divisional Court. The headnote to the judgment reads :
" Payments into and out of a solicitor's trust account do not constitute communications from the client and accordingly are not covered by solicitor-and-client privilege. Thus, a solicitor may be compelled to give evidence as to the movement of funds into and out of his trust account, including the source and recipient of payments, and to produce for inspection his books and records relating thereto."
In the body of the judgment itself, the following is said (at 83) :
" ... if I may say so with respect, the Furney case was rightly decided. Evidence as to whether a solicitor holds or has paid or received moneys on behalf of a client is evidence of an act or transaction, whereas the privilege applies only to communications. Oral evidence regarding such matters, and the solicitor's books of account and other records pertaining thereto (with advice and communications from the client relating to advice expunged) are not privileged, and the solicitor may be compelled to answer the questions and produce the material.
It may be helpful to ask in such a case whether the client himself if he were the witness, could refuse on the ground of the solicitor-and-client privilege to disclose particulars of a transaction directed by him through his solicitor's trust account. The fact that a client has paid to, received from, or left with his solicitor a sum of money involved in a transaction is not a matter as to which the client himself could claim the privilege, because it is not a communication at all. It is an act."

Background:
 大 律 師 去 年 替 轟 動 一 時 的 五 億 八 千 萬 港 元 中 銀 洗 黑 錢 案 當 辯 方 代 表 ， 替 被 告 申 請 擔 保 ， 事 後 被 捕 ， 文 件 被 取 走 ， 指 他 涉 及 處 理 犯 罪 得 益 ， 但 又 再 獲 釋 放 。 大 律 師 昨 天 入 稟 高 院 申 請 司 法 覆 核 ，a 指 拘 捕 不 合 法 ，b 取 走 受 專 業 保 障 文 件 也 是 不 合 法 。
中 銀 被 騙 七 千 五 百 萬 美 元 的 事 件 揭 發 後 ， 曾 代 表 疑 犯 夫 婦 申 請 擔 保 的 執 業 大 律 師 彭 耀 鴻 和 兩 名 律 師 ， 亦 被 警 方 拘 捕 ， 被 指 涉 及 處 理 犯 罪 得 益 。 大 律 師 上 月 獲 警 方 撤 銷 擔 保 限 制 。

Facts:
 彭 耀 鴻 大 律 師 ， 現 年 卅 七 歲 ， 一 九 八 八 年 開 始 私 人 執 業 為 大 律 師 。 二 ○ ○ 一 年 十 月 廿 二 日 ， 受 梁 素 娟 律 師 行 的 律 師 陳 淑 霞 委 託 ， 代 表中國銀行開平分行前行長許超 堂兄許 日 成 黃 雪 梅 夫 婦  , 出 席 翌 日 的 東 區 法 院 聆 訊 ， 代 許 氏 夫 婦 申 請 保 釋 。
彭 強 調 之 前 並 不 認 識 許 氏 夫 婦 ， 因 為 原 本 接 辦 案 件 大 狀 ， 前 案 未 完 由 他 臨 時 頂 替 。 他 收 到 文 件 包 括 許 氏 被 捕 紀 錄 、 警 誡 詞 、 洗 黑 錢 控 罪 副 本 和 一 份 對 Evh Jant 物 業 有 限 公 司 的 搜 查 令 。
警 方 控 告 許 氏 夫 婦 明 知 存 在 華 僑 商 業 銀 行 （ Ever Joint Properties Ltd) 咸 光 貿 易 公 司 名 下 七 千 五 百 美 元 是 犯 罪 得 益 ， 卻 仍 然 參 與 處 理 款 項 。 許 氏 夫 婦 去 年 在 東 區 法 院 提 訊 ， 上 庭 前 彭 氏 和 兩 人 在 囚 室 見 面 ， 他 向 二 人 提 供 法 律 意 見 ， 提 及 辯 護 費 問 題 。 大 律 師 彭 耀 鴻 替 被 告 夫 婦 申 請 保 釋 期 間 ， 替 被 告 變 賣 名 下 股 票 籌 集 訴 訟 費,  變賣股票，將逾二十萬元存入律師行戶口。， 但 為 警 方 拘 捕 ， 指 他 對 兩 人 這 一 涉 嫌 轉 移 財 產 舉 動 知 情 不 報 。
彭 氏 指 稱 ， 許 日 成 透 露 在 匯 豐 證 券 有 股 票 戶 口 ， 可 安 排 出 售 股 票 存 錢 入 律 師 行 ， 作 為 抗 辯 支 出 。 他 未 有 懷 疑 該 款 是 和 犯 罪 得 益 有 關 ， 遂 替 許 氏 作 出 相 應 安 排 。
當 時 控 方 在 反 對 許 氏 夫 婦 擔 保 。 透 露 中 國 銀 行 開 平 市 支 行 三 名 行 長 聯 同 一 國 企 總 經 理 ， 欺 詐 騙 取 七 千 五 百 萬 美 元 ， 存 入 兩 個 中 銀 戶 口 。 再 於 一 九 九 八 至 二 ○ ○ ○ 年 三 月 轉 至 香 港 華 僑 商 業 銀 行 咸 光 貿 易 公 司 戶 口 和 Yap Hing 貿 易 公 司 戶 口 。
同 月 廿 七 日 ， 控 方 取 得 高 院 禁 制 令 ， 禁 止 許 氏 夫 婦 動 用 名 下 資 產 ， 為 此 轉 移 售 股 款 項 往 律 師 行 的 計 畫 受 阻 。
本 年 三 月 十 四 日 ， 警 方 到 彭 耀 鴻 辦 公 室 將 他 拘 捕 ， 取 走 大 批 和 許 氏 夫 婦 此 案 有 關 文 件 。 同 日 ， 律 師 陳 淑 霞 和 Kenny Lam 亦 被 捕 。
警 方 同 日 發 放 消 息 ， 聲 稱 拘 捕 三 名 法 律 界 人 士 ， 涉 嫌 和 洗 黑 錢 有 關 ， 三 人 以 五 千 元 擔 保 。
彭 耀 鴻 指 在 警 方 通 告 發 表 後 ， 法 援 署 人 員 在 兩 日 後 ， 要 求 他 披 露 六 月 份 已 接 辦 的 法 援 個 案 詳 情 、 恒 生 銀 行 通 知 他 今 後 透 支 要 另 行 審 批 ﹔ 為 了 避 免 對 案 件 當 事 人 造 成 偏 見 ， 他 被 逼 退 出 一 已 接 辦 的 高 院 刑 事 案 ， 亦 不 再 代 表 許 氏 夫 婦 出 庭 。
五 月 廿 一 日 ， 彭 返 警 署 報 到 ， 拒 絕 接 受 擔 保 限 制 ， 結 果 警 方 表 示 可 以 釋 放 彭 氏 ， 但 聲 言 調 查 仍 未 完 結 。 其 餘 兩 律 師 則 須 在 本 月 廿 一 日 再 往 警 署 報 到 。
DOJ Submission
 資深大律師白孝華Blanchflower在庭上指出，除非法例訂明，否則市民只有道德或社會責任協助警方，但面對持續的嚴重、有組織及國際罪行，政府除將洗黑錢刑事化外，亦於九五年首次引進向警方舉報的法律責任，而有關條文亦寫得很清楚，不豁免法律專業特權，沒必要頒聲明
 accepted that s.25A is certain in its meaning in that it does not require a person to report communications which are covered by LPP. The amendment to s.25A enacted in the Drug Trafficking and Organized Crimes (Amendment) Ordinance, he said, was made in order to dispel any possible ambiguity and for no other reason.


Law
根據《有組織及嚴重罪行條例》第二十五條甲款，任何人知道或懷疑任何財產是犯罪得益，均要向授權人披露
 " (1) Where a person knows or suspects that any property
(a) in whole or in part directly or indirectly represents any person's proceeds of;
(b) was used in connect with; or
(c) is intended to be used in connection with,
an indictable offence, he shall as soon as it is reasonable for him to do so disclose that knowledge or suspicion, together with any matter on which that knowledge or suspicion is based, to an authorized officer.
(2) ...
(3) A disclosure referred to in subsection (1)
(a) shall not be treated as a breach of any restriction upon the disclosure of information imposed by contract or by any enactment, rule of conduct or other provision;
(b) shall not render the person who made it liable in damages for any loss arising out of
(i) the disclosure;
(ii) any act done or omitted to be done in relation to the property concerned in consequence of the disclosure.
(4) ...
(5) A person commits an offence if, knowing or suspecting that a disclosure has been made under subsection (1) or (4), he discloses to any other person any matter which is likely to prejudice any investigation which might be conducted following that first-mentioned disclosure.
(6) In proceedings against a person for an offence under subsection (5), it is a defence to prove
(a) that he did not know or suspect that the disclosure concerned was likely to be prejudicial in the way referred to in that subsection; or
(b) that he had lawful authority or reasonable excuse for making that disclosure."
4. A person who contravenes s.25A(1) is liable on conviction to a fine at level 5 and to imprisonment for three months : s.25A(7).
5. The evident purpose of s.25A is to provide law enforcement authorities with timely information about property that may be connected to an indictable offence. More particularly, the section looks to providing assistance to law enforcement authorities in their investigation of the increasing evil of what is called 'money laundering'. Legal practitioners are not expressly exempted from the constraints of s.25A. Indeed, in a report dated 1 February 2001 the Financial Action Task Force on Money Laundering ('FATF'), an inter-governmental agency tasked with the development and promotion of policies to combat money laundering (money laundering being the processing of criminal proceeds in order to disguise their illegal origins), identified the legal profession as fulfilling functions of considerable usefulness to money launderers. The report says :
" Lawyers, notaries, accountants and other professionals offering financial advice have become the common elements to complex money laundering schemes. This trend is mentioned by almost all FATF members."
6. Among the functions fulfilled by lawyers and other professionals which are exploited by money launderers are the taking of cash deposits, the issuing and cashing of cheques and matters similar. The report says :
" In some of these functions, the potential launderer is obviously not only relying on the expertise of these professionals but is also using them and their professional status to minimise suspicion surrounding their criminal activities. A solicitor representing a client in a financial transaction or providing an introduction to a financial institution lends a certain amount of credibility in the eyes of the transactor because of the ethical standards presumed to be associated with the work of such professions."

The amendment to s.25A

41. In July of this year, the Drug Trafficking and Organized Crimes (Amendment) Ordinance, No.26 of 2002, provided that s.2 of OSCO be amended by adding a provision that nothing in the Ordinance 'shall require the disclosure of any items subject to legal privilege'. I understand that the amendment is to take effect next year. From that time therefore by expression provision s.25A will be subject to what is termed in OSCO as 'legal privilege'.
42. 'Legal privilege' is already defined in s.2(1) of OSCO to provide for those instances where the term is presently used in the Ordinance : in s.3(9), s.4(11) and s.5(5). S.2(1) states that it means
"(a) communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client;
(b) communications between a professional legal adviser and his client or any person representing his client or between such an adviser or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purposes of such proceedings; and
(c) items enclosed with or referred to in such communications and made
(i) in connection with the giving of legal advice; or
(ii) in connection with or in contemplation of legal proceedings and for the purposes of such proceedings,
when they are in the possession of a person who is entitled to possession of them,
but excludes any such communications or items held with the intention of furthering a criminal purpose."
43. From the wording of s.2(1) it is clear that the intention of the legislature is to encapsulate the common law principles governing LPP including the exception to the privilege. See, for example, R v. Central Criminal Court, ex parte Francis & Francis [1989] 1 AC 346 in which the House of Lords, in considering an almost identical section (s.10) of the Police and Criminal Evidence Act 1984, found that the purpose of the section was to reflect the common law position. Lord Griffiths (at page 382) said :
"The definition corresponds closely with the established common law principles that govern the existence of legal privilege. Section 10(1) sets out the scope of legal privilege in terms that would be instantly recognised by any lawyer as covering the position at common law, and when I first read section 10(2) I was in no doubt that it was setting out the exception to legal privilege established in Reg. v. Cox and Railton, 14 Q.B.D. 153, which provides that no legal privilege attaches to legal advice obtained for the purpose of committing crime."
44. S.25A, when amended, will be subject to LPP as defined in s.2(1) of the Ordinance, essentially therefore as it is defined in common law. If s.25A, as it is presently expressed, is subject to LPP, the legislature could only have intended that it be the privilege comprehended in common law or as defined in s.2(1) of the Ordinance. Both in substance are the same. However, in the absence of express provision, if LPP is not abrogated it must be as comprehended by common law.
45. It is plain however that the amendment to s.25A has no retrospective effect. Accordingly, the predicament of the applicant arising out of his arrest in March of this year remains unaffected. So does the concern which has given rise to the application for what I have called an additional declaration, even with the amendment that concern remains valid.


Issues
 彭 耀 鴻 要 求 法 庭 頒 布 ， 律 師 從 當 事 人 所 得 資 料 消 息 ， 不 受 有 組 織 及 嚴 重 罪 行 條 例 限 制 ； 要 披 露 客 戶 間 資 料 是 違 反 基 本 法 和 違 背 國 際 人 權 ， 他 與 被 告 夫 婦 之 間 的 談 話 受 法 律 專 業 保 障 ， 遂 入 稟 高 院 申 請 司 法 覆 核 。
彭 耀 鴻 指 責 有 組 織 罪 案 及 三 合 會 調 查 科 高 級 督 察 倪 紹 基 ， 於 本 年 三 月 十 四 日 扣 留 拘 捕 他 ， 以 搜 查 令 取 走 一 批 受 法 律 專 業 保 障 的 文 件 是 不 合 法 的

Arrest

136. That being the case, it is necessary to return to the provisions of the Police Force Ordinance to determine whether the arresting officer effected the applicant's arrest lawfully in terms of s.50 of the Ordinance. That section (to cite it again) directs that
"(1) It shall be lawful for any police officer to apprehend any person who he reasonably believes will be charged with or whom he reasonably suspects of being guilty of
(a) any offence for which the sentence is fixed by law or for which a person may (on a first conviction for that offence) be sentenced to imprisonment; or
(b) ..."
[my emphasis]
137. Suspicion alone is not sufficient. The public are safeguarded by the requirement that the suspicion is reasonable and what is reasonable will, of course, depend not only as the information available to the arresting officer in each case but how that information is to be considered in light of the relevant law, by which I mean the law relevant to the offence for which the arrest is contemplated.
138. The test to determine reasonable suspicion was stated by the House of Lords in O'Hara v. Chief Constable [1997] AC 286, Lord Hope describing it as a simple but practical one. He continued :
" It relates entirely to what is in the mind of the arresting officer when the power is exercised. In part it is a subjective test, because he must have formed a genuine suspicion in his own mind that the person has been concerned in acts of terrorism. In part also it is an objective one, because there must also be reasonable grounds for the suspicion which he has formed. But the application of the objective test does not require the court to look beyond what was in the mind of the arresting officer. It is the grounds which were in his mind at the time which must be found to be reasonable grounds for the suspicion which he has formed. All that the objective test requires is that these grounds be examined objectively and that they be judged at the time when the power was exercised.
This means that the point does not depend on whether the arresting officer himself thought at that time that they were reasonable. The question is whether a reasonable man would be of that opinion, having regard to the information which was in the mind of the arresting officer. It is the arresting officer's own account of the information which he had which matters, not what was observed by or known to anyone else. The information acted on by the arresting officer need not be based on his own observations, as he is entitled to form a suspicion based on what he has been told. His reasonable suspicion may be based on information which has been given to him anonymously or it may be based on information, perhaps in the course of an emergency, which turns out later to be wrong. As it is the information which is in his mind alone which is relevant however, it is not necessary to go on to prove what was known to his informant or that any facts on which he based his suspicion were in fact true. The question whether it provided reasonable grounds for the suspicion depends on the source of his information and its context, seen in the light of the whole surrounding circumstances.
139. Suspicion is not to be equated with prima facie proof. It was said by Scott CJ in Dumbell v. Roberts [1944] 1 All ER 326 (at 329) that "the police are not called upon before acting to have anything like a prima facie case for conviction."
140. As to the nature of the required suspicion, in Hussien v. Chong Fook Kam and Another [1970] AC 942 (PC) Lord Devlin said (at 948) :
"Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove.' Suspicion arises at or near the starting-point of an investigation of which the obtaining of prima facie proof is the end."
Lord Devlin qualified this by saying :
" To give power to arrest on reasonable suspicion does not mean that it is always or even ordinarily to be exercised. It means that there is an executive discretion."
141. Once a reasonable suspicion has been formed, an officer is not, however, obliged to refrain from effecting an arrest in order to make further inquiries. With the benefit of hindsight, prudence may have dictated courses of inquiry that could have been taken before making an arrest. But that is not the point. It is for the officer, in the exercise of his discretion, to determine when he should make an arrest. That 'executive discretion', as Lord Devlin described it, is restrained in law by the principle only that, at the time of the arrest, the arresting officer must have a 'reasonable' suspicion.
142. I turn now to the arrest of the applicant himself for an alleged contravention of s.25A(1)(a) of OSCO. In respect of that offence the arresting officer must have had a reasonable suspicion that the applicant himself must have known or suspected that the assets being liquidated by his client, John Hui, for the purposes of lodging funds with Susan Liang & Co. were the proceeds of an indictable offence and that, despite such knowledge or suspicion, the applicant had failed to make a report to an authorised officer.
143. From the affirmation of the arresting officer it is apparent that, viewed subjectively, he did have a genuine suspicion in his mind that the applicant had contravened s.25A(1)(a). That has not been disputed. The issue has always been the reasonableness of that suspicion.
144. What is reasonable depends on the circumstances and, in my view, in considering the arrest of a legal practitioner for a contravention of s.25A, it would be entirely unreasonable for a police officer to found his suspicions on any material that is known to be, or may well be, subject to LPP. A suspicion that is reasonable may only be founded on matters that are not encompassed by LPP. It is fundamental that a police officer must recognise that a legal practitioner is under a duty in law to protect the confidentiality of all communications between himself and his client that have arisen for the purpose of seeking and/or receiving legal advice. It would constitute an attack on the administration of justice itself if a legal practitioner could be lawfully arrested for adhering to his lawful duty to maintain the sanctity of what is now recognised as a fundamental human right. No such contradiction of duties between law enforcement authorities and the legal profession could have been envisaged by those who passed OSCO into law.
145. In the present case, of course, the arresting officer affirmed that none of the information upon which he suspected that the applicant was guilty of a contravention of s.25A(1)(a) arose from matters subject to LPP. Certainly, the instructions given by John Hui to his brokers to liquidate his securities and forward the proceeds to Susan Liang & Co. record no advice sought or given. The objective fact of those instructions cannot, in my view, fall within the protective walls of LPP and it is those instructions which form the basis for what the arresting officer has said was his reasonable suspicion that the applicant had contravened s.25A(1)(a) of OSCO.
146. Without explanation, it is understandable that, when they learnt of the instructions given by John Hui to his brokers, the police were concerned. On the day following his arrest for a serious money laundering offence, one in respect of which the police believed he had benefited over a number of years, and having already lodged more than $200,000 with his solicitors, John Hui had proceeded to give instructions that his securities accounts with HSBC were to be liquidated in full and the proceeds placed in trust with his solicitors. The value of those accounts was approximately $9.1 million. The securities were to be liquidated as soon as reasonably possible and all proceeds paid to the solicitors. Even taking into account the severe impact that the cost of legal proceedings can have on an individual in Hong Kong, it seemed to the arresting officer to be an entirely extravagant sum to be lodging at that early stage as a further deposit against fees and disbursements. To compound matters, in the haste to ensure that the instructions were lodged in proper form, third parties had become involved in a manner open to question.
147. But while there may have been reasonable suspicion to justify the arrest of the other parties (although I stress that I make no findings whatsoever in that regard), what of the applicant himself?
148. A reasonable suspicion means a reasonably informed suspicion. In the present case, that means that the suspicion of the arresting officer, to be reasonable, must have been knowledgeable of the essential role that a barrister plays in representing a client in legal proceedings and how his role is to be contrasted with that of a solicitor. A barrister does not look directly to the client for payment of his fees. His paymaster is the solicitor who briefs him. The responsibility lies on the solicitor to deal directly with the client and to ensure in any practical way necessary that he is placed in funds. The barrister does not involve himself in handling the client's moneys; he does not receive them, hold them, secure them on terms. In that regard, acting professionally, he should be a stranger to the mundane financial practicalities.
149. No suggestion has been made by the police that, as a barrister, the applicant improperly involved himself in the handling of John Hui's assets. Indeed, it is apparent from a reading of the reports and affirmations of the investigating officers that, in their view, the applicant had played an essentially passive role in the attempted movement of those assets.


高等法院法官夏正民裁定警方非法拘捕。法官昨日判案時表示，知情不報控罪並不適用於法律專業特權保障的資料，但法官認為律師若有實質理由（ solid grounds）懷疑其客戶處理犯罪得益，應向警方舉報。
判詞指出，沒證據指彭知道許日成將錢存入律師行戶口，亦不能要求彭主動調查客戶的財富來源，負責拘捕彭的警務人員應該理解，法官批評拘捕毫無根據。