The Official Journal of The Law Society of Hong Kong – (Feb 2020)
【Privacy Within a Relationship and in Family Proceedings】
By Loretta Ho, Associate, Gall T his article examines the Court’s view on the use of confidential documents and information obtained by ‘self-help’ means. During a relationship, it is common for couples to allow each other to access their confidential documents and information. With modern day technology, these documents are readily accessible if they are stored in the virtual “cloud” storage. The documents are essentially “one click away” from their electronic devices. It also follows that it is easy for a party to access the other party’s communications with third parties, including their legal advisers.
Regrettably with relationship breakdown often comes a complete breakdown in trust. This leads parties being tempted to gather private and confidential documents belonging to the other party, with the view that the information they have obtained by ‘self-help’ means might advance their own case. Common examples are (1) obtaining copies of confidential documents belonging to the other party in the matrimonial home, (2) continuing to access the other party’s emails and confidential documents through virtual cloud storage, etc.
It is therefore important for parties to family proceedings to understand the Court’s view on how confidential documents and information are treated.
Fundamental Rights of Privacy
A person’s fundamental right of privacy is guaranteed by the following:
• Article 30 of the Basic Law provides that “[t]he freedom and privacy of communication of Hong Kong residents shall be protected by law. No department or individual may, on any grounds, infringe upon the freedom and privacy of communication of residents except that the relevant authorities may inspect communication in accordance with legal procedures to meet the needs of public security or of investigation into criminal offenses”.
• Article 14 of the Hong Kong Bill of Rights provides that “(1) [n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation; and (2) [e]veryone has the right to the protection of law against such interference or attacks”.
• A person is entitled to legal professional privilege and litigation privilege for communications with his/ her legal advisers.
Application of Imerman in the Hong Kong Courts
The Hong Kong Courts confirmed the application of Imerman in Sim Kon Fah v JBPB and Co  4 HKLRD 45.
Furthermore, accessing the other person’s confidential communication and information is itself a breach of Article 30 of the Basic Law, a breach of Article 14 of the Hong Kong Bill of Rights, a breach of confidence and a breach of privilege
How to Handle Confidential Documents Obtained by ‘Self-Help’ Means
Below is a guide on how to treat both hard and electronic copies of confidential documents:
1. If the information is contained within a locked compartment, it should not be break into by the party or anyone else on his/her behalf.
2. If the information has been left out openly and it is known that the other party would not consent to the information being copies, it should not be taken or copied.
3. Original documents should not be taken without consent under any circumstances.
4. If the information is password protected and the password is unknown, the party must not obtain access to this information or ask anyone else to do so.
5. If the information is unprotected or available with a known password, access to this information can only be obtained if it is known that the other party would agree.
6. If the information is freely available and it is known that the other party would not consent to this information being copied, it should not be copied.
Following Imerman, the Courts have established that privacy and confidentiality exist between spouses. There is now in place a restriction on the use of confidential documents of the other to be used in family proceedings.
Parties to family proceedings should be mindful of the law on the use of confidential documents and information and the consequences of breach of confidence.