What types of legal privilege are recognised in your jurisdiction?

Legal professional privilege (LPP) is a legal right protected by common law and a constitutional right under article 35 of the Hong Kong Basic Law (Basic Law), which guarantees the right to confidential legal advice. Common law applies to Hong Kong by virtue of article 8 of the Basic Law.

Hong Kong recognises two primary categories of LPP:

• legal advice privilege, which protects confidential communications between a client and their lawyer made for the dominant purpose of seeking or giving legal advice, regardless of whether litigation is contemplated (Citic Pacific Limited v Secretary for Justice & Another [2015] 4 HKLRD 20); and

• litigation privilege, which protects confidential communications and documents prepared for the dominant purpose of use in actual, pending or reasonably anticipated litigation, where litigation is not a mere possibility but in reasonable prospect. This includes communications involving clients, lawyers, and relevant third parties such as expert witnesses (Akai Holdings Ltd (In Compulsory Liquidation) v Ernst & Young (24/2/2009, FACV28/2008)).

LPP is different from confidentiality obligations prescribed under statutes. By way of example, the Securities and Futures Ordinance (Cap. 571) imposes a secrecy obligation on specified persons, including investigators and those assisting the Securities and Futures Commission (SFC), preventing them from disclosing or sharing confidential information matters learned during an investigation without the SFC’s consent or any legal exception. Similarly, the statutory confidentiality obligation under the Prevention of Bribery Ordinance (Cap. 201) criminalises any unauthorised disclosure of (among others) the identity of a person under investigation for bribery or corruption offence. These prohibitions against disclosure aim to protect the integrity of the investigations and violation could lead to prosecution and result in a fine or imprisonment.

To whom does legal privilege apply?

LPP in Hong Kong applies to communications with:

• qualified lawyers, including local barristers and solicitors, who provide legal advice;

• in-house counsel who are qualified lawyers acting in their professional legal capacity; and

• registered foreign lawyers practicing in Hong Kong, with privilege applying to advice given on foreign law as well (section 39A (2) of the Legal Practitioners Ordinance (Cap. 159)).

Moreover, litigation privilege protects confidential communications between a client and non-lawyer third parties (for example, auditors, accountants and media consultants) when they are created primarily for the dominant purpose of obtaining or giving legal advice in anticipation of litigation.

What criteria must be met for a communication to be privileged?

To be privileged, communications must be confidential and meet the dominant purpose test: the communication’s dominant purpose must be either for seeking or giving legal advice (legal advice privilege) or for use in actual or reasonably anticipated litigation (litigation privilege). Communications with multiple purposes are privileged only if the dominant purpose is legal advice or litigation. For completeness, pre-existing documents collated by the client from its own files but not by its lawyers, even if they are intended to be provided to lawyers for the purpose of obtaining legal advice, do not automatically attract privilege (Wong Wai Keung v Commissioner of Police [2022] HKCFI 374).

Are there any penalties in your jurisdiction for over-extending or wrongly claiming excessive privilege?

Generally, there are no specific penalties for over-extending or wrongly asserting privilege in Hong Kong. However, if it involves the provision of false or misleading information to the court, it might constitute contempt of court, which is punishable by fines or imprisonment. The court may also impose adverse costs orders for time wasted on dealing with false or excessive privilege claims.

Does your jurisdiction recognise privilege in communications generated or transmitted via AI platforms or legal tech tools – and can this be undermined?

There is currently no specific case law or legislation in Hong Kong relating to privilege in communications generated or transmitted via AI platforms or legal technology tools. However, the Law Society of Hong Kong issued a position paper in January 2024 provide guidance and reminders to legal practitioners about protecting client confidentiality and privilege when using AI tools. In line with general principles of LPP, there is a risk that privilege could be undermined if confidential information or legal advice inputs are improperly processed, disclosed or accessible to third-party service providers. Lawyers are advised to avoid inputting confidential client information into AI systems and to protect client confidentiality and privilege by carefully managing sensitive information and ensuring proper safeguards in using such technology. The fundamental ethical duties of lawyers to maintain confidentiality and privilege do not change with the use of AI technology.

Is litigation privilege recognised separately and, if so, what are the criteria?

Litigation privilege is recognised as separate from legal advice privilege and applies when litigation is actual, pending or reasonably anticipated – that is, there must be a real likelihood rather than a mere possibility of litigation. Litigation privilege protects communications and documents prepared dominantly for use in litigation, including those involving third parties such as expert witnesses and consultants. The dominant purpose test is strictly applied to ensure privilege extends only to relevant materials (Citic Pacific Limited v Secretary for Justice & Anor (19/12/2011, HCMP767/2010)).

Does privilege apply to communications with in-house counsel? If so, does this apply to communications between in-house counsel and AI tools (eg, contract automation or compliance systems)?

In Hong Kong, LPP applies to communications with in-house counsel who are qualified lawyers acting in their legal capacity, as opposed to in a business or executive role. The communications must also relate to legal matters, as distinct from administrative or business matters. Most other common law jurisdictions such as the United Kingdom, United States, Australia and Singapore generally recognise legal privilege for communications with in-house counsel. On the other hand, under many European jurisdictions, communications with in-house lawyers are not protected by the privilege, as in-house lawyers are not generally regarded as being sufficiently independent from their employer, even if they are admitted to the national bar or law society and are licensed to practise. For instance, the European Court of Justice has confirmed that internal communications by company employees with in-house counsel are not legally privileged in competition law investigations by the European Commission (Akzo Nobel and Akcros Chemicals v European Commission Case C-550/07 P).

If in-house counsel inputs confidential information into AI tools over which it has no control (eg, open or public generative AI platforms), privilege is likely lost because confidentiality is waived. Human oversight over the AI tools and validation of the output and final work product is therefore critical.

Can legal privilege be waived? If so, how and by whom? And are there exceptions to legal privilege in your jurisdiction?

LPP belongs to and can only be waived by the client. Whether LPP has been waived is determined objectively (MK v Director of Legal Aid (Interested Party) [2024] HKCFA 6).

Voluntary waiver occurs when the holder of LPP intentionally discloses privileged material to a third party, thereby, relinquishing confidentiality. Hong Kong courts also recognise the concept of ‘limited’ or ‘partial’ waiver, which allows a party to partially waive privilege and disclose certain privileged documents for a specific purpose, while maintaining privilege against others (Citic Pacific Ltd v Secretary for Justice [2012] 2 HKLRD 701).

Inadvertent disclosure does not waive LPP, where LPP is not waived with an intention. In cases where privileged documents are accidentally disclosed, the lawyer should promptly retrieve the documents or rectify the error. If the recipient is aware or reasonably suspects the disclosure was inadvertent, they should avoid reading the documents and immediately notify the disclosing party. Hong Kong courts protect against parties taking unfair advantage of such mistakes. For instance, in Zheng Lie Lie v Prosperfield Ventures (No. 2) [2003] 2 HKC 47, the court ordered the return of inadvertently disclosed privileged documents and granted injunctions to prevent their use. This reflects a recognition that inadvertent disclosure, when clearly a mistake, should not result in a loss of privilege, provided corrective steps are promptly taken and the recipient acts appropriately upon learning of the disclosure.

When sharing privileged materials with third parties such as co-defendants or experts, maintaining privilege depends significantly on the nature of the relationship and the purpose of sharing.

Joint privilege arises when two or more parties jointly hire the same lawyer or share a joint interest in the subject matter of communications at the time they are made. All parties have equal rights to access these privileged communications and cannot claim privilege against each other regarding them. Mutual consent is required to waive joint privilege.

Common interest privilege protects confidentiality when privileged communications are shared between parties who have a mutual legal interest in the subject matter. Disclosure to a third party with such a common interest does not waive privilege, as the communication is considered necessary for protecting shared legal interests. Common interest privilege allows one party to waive privilege, potentially affecting all parties with a common interest

LPP is not an absolute right and may be overridden either explicitly or implicitly by statutory provisions, as recognised in MK v Registrar of High Court (No. 2) [2024] HKCFA 6. Moreover, communications and documents created to facilitate criminal or fraudulent activities are not protected by LPP (R v Cox and Railton (1884) 14 QBD 153; Citic Pacific Ltd v Secretary for Justice & Another [2012] 2 HKLRD 701).

Are third-party privilege reviewers used in your jurisdiction?

In large-scale regulatory investigations or disclosures, sometimes legal practitioners would jointly engage an independent external counsel or a specialist service provider to conduct privilege reviews, who will be granted a limited waiver for the purpose of reviewing the materials to determine if they are protected by LPP. These third-party reviewers are typically briefed by lawyers or legal teams and operate under strict confidentiality obligations. The privilege review exercise typically involves carefully delineating the scope of review, ensuring reviewers understand the privilege issues and act as agents of legal counsel and strictly controlling document flows to avoid waiver or leakage.

How is privilege treated in the context of cross-border investigations?

In cross-border investigations, Hong Kong courts principally apply the lex fori rule, meaning the law of the forum – Hong Kong law – governs the determination of LPP. This means that even if a privileged document originates from another jurisdiction, Hong Kong courts will assess its privilege status based on local privilege rules rather than the law of the place where the document was created or located. This approach can cause practical complications when privilege rules in the other jurisdictions differ from those of Hong Kong.

The Hong Kong Court of Appeal in RMBSA Corporate Services Ltd v Secretary for Justice [2010] 1 HKLRD 737 and Super Worth International Ltd v Commissioner of ICAC [2016] 1 HKLRD 281 acknowledged some flexibility in the rigid application of lex fori, suggesting that in appropriate cases, courts might take into account foreign laws or public interest considerations without overriding fundamental principles of Hong Kong privilege law. Nonetheless, the prevailing view is to apply Hong Kong law subject to public policy constraints. It is also important to understand that a document deemed privileged under Hong Kong law may not necessarily be protected as such in other jurisdictions and vice versa.

What is the position of regulators and enforcement authorities regarding privilege?

Regulators and enforcement agencies in Hong Kong generally cannot compel disclosure of documents subject to LPP, even in dawn raids or investigations. The Securities and Futures Commission (SFC), for example, explicitly recognises and respects claims of LPP and would not deem any bona fide refusal to waive LPP during dawn raids or investigations as uncooperative conduct. There are also specific rules under the Competition Ordinance and the Securities and Futures Ordinance that address privilege considerations during investigations conducted by the regulators. For instance, the Competition Commission’s guidelines provide for a mechanism for the commission to dispute any privilege claim and only return an item if it is satisfied that the item is privileged. Nevertheless, there are situations where LPP may be overridden by statute, but such intention to override must be expressly provided for or appear necessary by implication.

What are the key recent developments or notable case law affecting legal privilege in your jurisdiction? While AI is a very new and emerging area, is there yet any specific case law, regulatory guidance, or enforcement activity involving legal privilege and the use of AI or tech?

LPP remains firmly recognised as a fundamental and constitutional right under article 35 of the Hong Kong Basic Law. The recent decision of the Hong Kong Court of Final Appeal (CFA) in MK v Registrar of High Court & Anr [2024] HKCFA 6 serves as a reminder of key principles relating to waiver of LPP. The appellant challenged the Director of Legal Aid’s decision to revoke her legal aid certificate on the ground that the revocation had been based on information protected by LPP arising out of a meeting with her former lawyers relating to her financial situation that occurred prior to legal aid being granted. The CFA dismissed the appeal, finding that the appellant had waived LPP over information regarding her financial eligibility when she gave permission to her counsel to share it with the Director of Legal Aid, allowing the Director to rely on it to revoke her legal aid certificate.

As of the date of this publication, there is no reported Hong Kong case law or regulatory guidance that specifically addresses LPP issues arising from the use of AI or legal technology, but the Law Society of Hong Kong issued a Position Paper on the Impact of Artificial Intelligence on the Legal Profession in early 2024 highlighting concerns over client confidentiality and privilege protection in the era of AI. The Privacy Commissioner for Personal Data (PCPD) has also issued recommended practices and checklists for AI use, focusing on data protection but reinforcing the importance of safeguarding privileged information.

Looking ahead, what practical steps might lawyers in your jurisdiction consider taking to preserve privilege when using AI and legal tech?

Lawyers in Hong Kong should take practical, proactive steps to preserve LPP and client confidentiality when using AI and legal tech tools. The Law Society of Hong Kong’s January 2024 position paper highlights the need for caution given the risks of confidential data exposure and inadvertent privilege waiver when engaging generative AI technology, particularly cloud-based platforms.

Key measures include avoiding directly inputting confidential client information into AI or cloud systems without having strong data security and confidentiality protections in place. AI-generated content intended as legal advice should nonetheless be explicitly marked as privileged, with access to such data strictly controlled and to exercise human oversight when reviewing AI-generated work products.

In order to uphold the duty of confidentiality and to preserve data privacy and privilege, internal policies and clear guidelines for AI use are critical, as emphasised by the PCPD in its publication entitled ‘Checklist on Guidelines for the Use of Generative AI by Employees’, issued in March 2025. Such policies should define permissible AI tools, limit data input and sharing, mandate data retention and deletion protocols and ensure compliance with the Personal Data (Privacy) Ordinance (PDPO). Organisations must also ensure that legal professionals are provided with training on ethical and secure AI use.

The Inside Track

What impact has the evolution of AI and tech had on the way that you deal with privileged communications in your practice?

While the evolution of AI and tech have made certain administrative or mundane tasks such as producing summaries, translations or analyses easier, there is a risk that privileged and confidential communications may be inadvertently leaked when they are inputted to open and public generative AI platforms. In the Law Society of Hong Kong’s position paper titled ‘The Impact of Artificial Intelligence on The Legal Profession’ published in January 2024, the Law Society also warned that privileged legal data, client data privacy and sensitive information may not be secure if they are processed via cloud services.

If you could change one thing about how privilege in your jurisdiction, what would it be and why?

On 24 July 2025, the Judicial Committee of the Privy Council in Jardine Strategic Limited v Oasis Investments II Master Fund Ltd and 80 others (No 2) (Bermuda) [2025] UKPC 34 handed down a landmark decision, abolishing the long-standing shareholder exception to legal advice privilege. The Privy Council held that the exception, which previously allowed for the production of privileged legal advice to companies’ shareholders, should no longer be recognised, as a company has long been deemed a separate legal person and companies and shareholders do not necessarily share a joint legal interest. It remains to be seen whether this decision would be followed in Hong Kong, as decisions of the Privy Council made after the handover of Hong Kong to China are considered persuasive but not legally binding on Hong Kong courts.

What common mistakes do you see people make that undermine legal privilege – and how can they avoid them?

Parties may inadvertently waive LPP by sharing a privileged document with another party or with the court unintentionally. Care should be exercised before engaging in the sharing of privileged information because of the risk of losing control over further dissemination of the information and loss of confidentiality. Privileged information should be marked legally privileged and confidential and only be shared within a designated group of people who are tasked with giving instructions to or communicating with lawyers to preserve LPP.