Mrs. A v. A

HCMP 2338/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2338 OF 2010

(ON AN INTENDED APPEAL FROM FCMC NO. 15415 OF 2009)

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JUDGMENT

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Hon Tang Ag CJHC (giving the judgment of the Court):

1.  On 12 November 2010, we dismissed an appeal from District Judge Wong, who had refused leave to the Petitioner to file and serve a Further Supplemental Petition. The Further Supplemental Petition included allegations of misconduct towards certain minors of the family (“the allegations”).

2.  Our reasons were handed down on 30 November 2010 at 2:15 pm (“the Judgment”).  As was the usual practice, the Judgment was uploaded onto the Judiciary website.  In the Judgment, we referred to the allegations.

3.  Unfortunately, because of other proceedings (non-matrimonial) between the parties and/or members of their family, the identity of Mr A has been widely publicized.  As a result there was substantial media interest in the Judgment.  By a letter faxed to the Court after the Judgment was handed down on 30 November 2010, Messrs Chaine, Chow & Barbara Hung, solicitors for the Respondent, informed the court that they wished to make an urgent application for publication of the Judgment to be deferred pending the determination of the divorce proceedings.

4.  On 2 December 2010, we heard an urgent application by the parties for an order that:

“… the Reasons for Judgment … can be redacted before uploading to the Judiciary’s website so that the identities of the minors Y and Z will not be shown to the public.”

5.  Because the parties were unable to make substantive submissions to us, we were asked, as a temporary measure, to order that the Judgment which has been uploaded should be removed from the Internet.  We agreed to the request.  The Petitioner asked for and was given 14 days to make written submissions to us, and the Respondent 14 days thereafter to respond.  The submissions were provided to us on 16 December and 30 December 2010 respectively.

6.  In the written submissions, Mr Benjamin Yu, SC, for the Petitioner, noted that the Judgment has already been made public and has been reported widely in the press.  He submitted that what the Petitioner wanted is an order that the Judgment should not be made continuously available to the public through the Internet.

7.  He pointed out that we have power under Article 10 of the Hong Kong Bill of Rights to order that:

“… any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.”

8.  On behalf of the Respondent, Mr Johnny Mok, SC agreed with the Petitioner that some steps should be taken to protect the interests of minors. 

9.  Mr Mok submitted that, rather than adopting the purely negative measure of withholding Internet publication, a more effective solution would be a combination of:

“(1) redacting certain parts of the Judgment containing references to the children; and

(2) inserting a warning whenever the redacted Judgment is displayed on the Judiciary website (and, perhaps, even on the copy retained in the Judiciary and other public libraries) that publication of any information relating to this case is subject to an order – to be made by this Honourable Court (similar to that made by Judge Wong of the Family Court) – that no one shall publish or disclose any information or material including but not limited to any photograph in a manner that may lead to the identification of the names, address, school or other personal particulars of the minors mentioned in the Court of Appeal Judgment handed down on 30.11.2010.”

10.  On 9 December 2010, District Judge Wong ordered that:

“… no one shall publish or disclose any information or material including but not limited to any photograph in a manner that may lead to the identification of the names, address, school or other personal particulars of the great grand-daughters of the Petitioner and the Respondent referred to in the Petitioner’s answer by letter dated 8^th November 2010 …”.

11.  In R (on the application of Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] 4 All ER 91, the English Court of Appeal refused an application by the Secretary of State to redact certain paragraphs in a judgment on the basis of a long established understanding whereby a government providing sensitive intelligence information to another government expected to retain control over the use and dissemination of that maternal (the control principle).  The facts are far removed from our present case but their Lordships’ observations are of general relevance.

12.  Lord Judge CJ said at para. 41:

“… where litigation has taken place and judgment given, any disapplication of the principle of open justice must be rigidly contained, and even within the small number of permissible exceptions, it should be rare indeed for the court to order that any part of the reasoning in the judgment which has led it to its conclusion should be redacted. As a matter of principle it is an order to be made only in extreme circumstances.”

13.  Lord Neuberger MR said earlier in para. 134:

“… there is a very strong presumption indeed that a judgment, containing as it does the judge’s reasons for his decision, should be fully available for all to see. … But even this fundamental principle must occasionally yield to other factors, such as the need to safeguard children and other vulnerable people, the need to prevent the court’s orders being thwarted, and the need to protect the public interest.”

14.  We have no doubt that the court should safeguard the minors.  However, we do not believe it should take the form of redacting the Judgment.  Nor to order that the Judgment should not continue to be available on the internet.  We believe they should be protected by means of an order prohibiting the minors being identified.  Indeed, maybe that the order made by District Judge Wong on 9 December 2010 has given the minors adequate protection.  But for the avoidance of doubt, we would make an order similar to that made by Judge Wong, namely, that no one shall publish or disclose any information or material including but not limited to any photograph in a manner that may lead to the identification of the names, address, school or other personal particulars of the minors mentioned in our Judgment and to provide that all copies of the Judgment (whether on the judicial website or in the Court Library) should carry a statement that such an order has been made.  It follows that the Judgment as handed down, but carrying the statement that we have made such an order should be available on the judiciary Internet site.

15.  We so order.