HONG KONG Law and Practice Contributed by: George Lamplough, Edward Beeley, Vanessa Cheng and Curtis Pak, Holman Fenwick Willan
against self-incrimination can be a reasonable excuse for non-compliance. That said, the privilege will not usually apply where the documents requested by the SFC are pre-existing materials that have existence independent of the will of the person claiming the privilege. 6.2 Undermining the Privilege Over Communications Exempt From Discovery Privilege will not protect anything said or done to further a crime. If communications that would other - wise be protected by legal professional privilege are made to further fraud, then the disclosing party can - not assert legal professional privilege. To trigger the exception, there must be a definite charge of fraud or illegality. Fraud here is used in a relatively wide sense, encompassing general iniquity and civil fraud. Therefore, legal professional privilege does not extend where, for example, a solicitor is consulted on how to carry out an illegal act. It is also worth noting that privilege is not lost if the purpose of the document was to ask, or warn against, the results of contemplated acts. 7. Special Rules and Laws 7.1 Rules for Claiming Punitive or Exemplary Damages The general objective of punitive or exemplary dam - ages is to punish, deter and denunciate ( Allan v Ng & Co (a firm) [2012] 2 HKLRD 160). It is not therefore possible to claim punitive or exemplary damages as a form of compensation. There are three situations where punitive or exemplary damages may be awarded: • in cases of oppressive, arbitrary or unconstitutional actions by the servants of government; • where the defendant’s conduct was “calculated” to make a profit for themself; and • where expressly authorised by statute.
A case of fraud may fall within the second of these categories, and therefore punitive or exemplary dam - ages may be awarded. It is important to note that exemplary damages are a remedy of last resort. Exemplary damages should be moderate and will only be awarded if the remedies available to the court are inadequate to punish and deter the defendant ( Allan v Ng & Co ). As a matter of procedure, the plaintiff must specifically plead their claim for exemplary damages, together with the facts on which they rely (RHC Order 18 Rule 8 (3)). 7.2 Laws to Protect “Banking Secrecy” Common Law Duty The leading case on banks’ duty of secrecy is Tourni- er v National Provincial and Union Bank of England (1924) 1 KB 461, where Atkin LJ defined the extent of the duty as going beyond the balance in the account, extending at least to all transactions that go through the account and any securities. He added that the duty extends to information obtained from other sources than the customer’s account if the information was obtained because of the relationship between banker and customer. The duty persists after the closure of the account. However, the duty of confidence that a bank owes to its customer is not absolute and is qualified where: • disclosure is required by law; • there is a duty to the public to disclose; • the interests of the bank require disclosure; and • disclosure is made further to express or implied customer consent. Statutory Duty of Secrecy Section 120 of the Banking Ordinance (Cap 155) sets out banks’ statutory duty to preserve the secrecy of customer affairs and circumstances where banks may share customer information with regulators. Section 120 (5) provides that the duty of secrecy does not apply in certain circumstances, such as:
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