MACAU SAR, CHINA Law and Practice Contributed by: João Nuno Riquito, Bruno Almeida, Bernice Kwok and Daniel de Senna Fernandes, Riquito Advogados
5.4 Alternatives to Discovery Mechanisms See 5.1 Discovery and Civil Cases and 5.2 Dis- covery and Third Parties . 5.5 Legal Privilege Lawyers and certain other professionals are sub- ject to legal privilege. In particular, client-attorney privilege is well protected under the Macau SAR law and only in very limited and exceptional cir- cumstances can the court allow testimony which breaches this privilege. The duty of secrecy may also be lifted by the Macau Lawyers Association upon a voluntary request by the lawyer involved, when it is justified for the purposes of defending the rights and legitimate interests of the lawyer or their clients. Any evidence obtained in breach of professional privilege is considered null and thus cannot be used in court. There is no distinction, as regards privilege, between external and in-house counsel, pro- vided they are both lawyers registered with the Macau Lawyers Association. 5.6 Rules Disallowing Disclosure of a Document Documents and other materials may be refused to be disclosed when their disclosure: • may cause the violation of a persons’ moral or physical integrity; • may cause an intolerable violation of some- one’s privacy, domicile, correspondence or other means of communication; • may cause a breach of legal privilege or secrecy; or • implies a general disclosure of business books, which is subject to certain restrictions.
There are limitations as to the maximum num- ber of witnesses allowed but the court does not exercise prior control over the witnesses’ knowledge of the facts or respective relevance. Witnesses called by the court must attend the hearing and the Macau SAR might, when neces- sary, be compelled to do so by the court, without prejudice to certain individuals’ right to refuse to testify or their prerogative to provide their state- ment in writing. The parties have the responsibil- ity to ensure that any witnesses living outside the Macau SAR attend the hearing to provide their statements, unless the party requests the court to issue a collaboration request to the relevant foreign authorities to obtain a witness statement. Should, during the hearing, any party become aware of additional relevant witnesses, it may make a request to the court for admission, which is subject to its discretion. The court may order, upon the request of either party, a third party to produce documents. This request can be included in the initial submission(s) or later, together with the evidence submission, which is to be presented after the court has established the facts proved or to be proven. The party needs to identify the docu- ment and explain its relevance. The court will decide after hearing all parties. 5.3 Discovery in This Jurisdiction See 5.1 Discovery and Civil Cases and 5.2 Dis- covery and Third Parties . As a general rule, parties shall produce the rel- evant documents with their respective submis- sions, but, without prejudice to rules on mala fides, documents can be submitted at a later stage, although likely subject to the payment of fines.
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