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Such concerns were in the forefront of the reasons put forward by those opposing
Proposal 39(d).
The abrogation of legal professional privilege was opposed in
principle and the likelihood of parties having to incur the expense of a second set of
experts was thought by many to be a crucial flaw in the proposal. Some argued that
such a rule was unnecessary since adoption of Proposals 39(a) to (c) would make it
difficult or impossible for a respectable expert to make the required declaration or to
verify the report where his opinion had been subverted by instructions intended to
result in a misleading report.
A Basic Law concern was also raised by some respondents. Article 35 relevantly
provides :-
"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 ......" (italics supplied)
Would a rule contemplated by Proposal 39(d) violate BL 35 and so be
unconstitutional
It appears to the Working Party that the question is arguable. A rule of the kind
to confidential legal advice (instructing experts and obtaining their advice and
evidence being part of the process of obtaining such legal advice). However, as
previously discussed, the BL 35 rights are not absolute but may be subject to
appropriate restriction. A restriction would be valid provided that :-
(a)
it pursues a legitimate aim;
(b)
there is a reasonable proportionality between the means employed and the aim
sought to be achieved; and,
(c)
the restriction is not such as to impair the very essence of the right.
It is arguable whether a rule of the type envisaged by Proposal 39 would satisfy these
conditions and so constitute a valid restriction.
Notes
Including the Law Society, the BSCPI, the HKMLA, the BCC, the HKIS and three firms of
solicitors.
Section 3 above.
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