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The extent of the coverage of legal professional privilege was also examined in AAB No.

19/2009. In this case, an employee whose employment was terminated made a data

access request for her personal data contained in a report compiled by the in-house

legal counsel of the employer. In refusing her data access request, the employer stated

that the report was prepared by the in-house legal counsel for the purpose of giving

legal advice and so was exempt under section 60 of the Ordinance. The report also

contained attachments. The question before the AAB was whether legal professional

privilege applied to the advice given by the in-house legal counsel and whether it

extended to cover the documents attached to the report.


Having considered the fact that the right to confidential legal advice is protected under

the Basic Law


and common law, the AAB held that in-house lawyers enjoy the same

legal professional privilege as external lawyers in relation to legal communications. As for

the documents attached to the report, the AAB took the view that section 60 of the

Ordinance should not and does not give a blanket claim to any pre-existing documents

obtained by a solicitor for purposes of litigation or legal advice. The requested data in

this case was contained in: (i) a document created for the purpose of being shown to

the lawyer; (ii) a document prepared by the employee herself; (iii) a document filed by

the employee herself; and (iv) a judgment of the Court. The AAB took the view that item

(i) was covered by legal professional privilege; items (ii) and (iii) did not qualify for legal

professional privilege as they were prepared or filed by the employee; and item (iv) did

not qualify for any legal professional privilege as it was a document open to the public.


Section 60A— Self-Incrimination


Under common law, an individual has the fundamental right and privilege against

disclosure of any information that may incriminate himself. The Ordinance as originally

drafted did not, however, allow a data user to refuse to comply with a data access

request on the grounds that compliance with that request will incriminate himself. The

new section 60A introduced by the Amendment Ordinance serves to uphold the

common law principle of privilege against self-incrimination, and provides as follows:

(1) If, as a result of complying with a request under a provision of data protection principle

6 or section 18(1)(b) in relation to any personal data, a data user might be incriminated

in any proceedings for any offence other than an offence under this Ordinance, the

data is exempt from that provision or section.

(2) Information disclosed by a data user in compliance with a request under a provision of

data protection principle 6 or section 18(1)(b) is not admissible against the data user in

any proceedings for an offence under this Ordinance.


Article 35.


The discovery application was made again for the same document in a civil action brought by the employee against

the employer in


. The Court agreed with the AAB that item (i) is covered by legal professional privilege. It

was further ordered that while the other items would not by themselves qualify for legal professional privilege, they

should not be disclosed as they could shed light on the trend of the advice given by the in-house lawyer to the employer.