XCHRX MESSRS GEORGE TUNG, JIMMY NG & VALENT TSE v. KIMBERLEY CRAIG ROBINSON

HCA5403/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.5403 OF 1999

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J U D G M E N T

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1. This is an application by the Defendant, Kimberley Craig Robinson, for either the unrestricted circulation of my judgment given on 22nd September 1999, or alternatively for a partially restricted circulation of my judgment.

2. The matter arose this way. On 22nd September, after a hearing before me between the Defendant, Mr Robinson, and the solicitors firm of George Tung, Jimmy Ng & Valent Tse, I made the Order that the solicitors firm, who were the former solicitors for the Plaintiff, should bear the costs personally arising out of the litigation whereby the Court granted an Ex parte Order at the instance of the Plaintiff against the Defendant. That Ex parte Order was discharged by the Court and costs order was made in favour of the Defendant.

3. At the conclusion of the hearing on 22nd September, due to the constraint of time, Mr Coleman, counsel for the solicitors firm, requested that consideration be given for the restricted circulation of my judgment and I indicated that I would give the firm of solicitors a chance to address me but in the meantime, I had acceded to the request for the temporary restriction of the circulation of the judgment.

4. Application is now made by Mr Robinson for the unrestricted circulation of the judgment. The application is put on three basis. First, that the rumours surrounding the granting of the Ex parte Order, followed by the subsequent collapse of Mr Robinson's business, require the open circulation of my judgment. Secondly, that the guidelines and the analysis of the duties of a solicitor set out in my judgment call for a public circulation of my judgment. Thirdly, it was put to me by Miss Lau that there is a doubt as to the jurisdictional basis of the Court to order restriction of the circulation of judgment.

5. Mr Bowers, in a very fair submission, informed the Court that he would not oppose to the making of an order in terms of paragraph 2 of the summons, namely, that the circulation of the judgment be unrestricted save with the obliteration of the name of the Applicant and that of Mr Ng therefrom. So what Mr Bowers, for the solicitors, is asking from the Court is anonymity with the open circulation of the judgment. Mr Bowers submitted to the Court that the open unrestricted circulation of the judgment as prayed for in paragraph 1 of the summons will cause hardship or embarrassment to his client and would damage the reputation of both the firm and Mr Ng.

6. It seems to me that there is no arguable case against open circulation of the judgment in the circumstances of the present case, both because of Mr Robinson's personal situation as well as because of the matters of both public and professional interest dealt with in my judgment.

7. There is the further matter of the jurisdiction of the Court. I think it is clear both from the case law as well as from the Judicial Proceedings (Regulation of Report) Ordinance that the Court's powers to order restriction of publications is limited to the secrecy categories, namely, where it involves national securities, children, mental patients, etc. This case certainly does not fall within that sort of secrecy category.

8. In my view, once it is accepted that there must be open circulation, then unless a special case can be made out for anonymity, the Court has no choice and it would be quite wrong to order anonymity. In the course of Mr Bowers' submissions, the Court put to Mr Bowers as to what are the special circumstances in this case as different from many many cases that come before the Court where reputation of a professional person or a high profile businessman might be damaged by the circulation of a report as to call for special treatment, requiring anonymity. Mr Bowers has been very frank and very honest, and as I see it, there is really no justification for anonymity in this case.

9. In my judgment, in all the circumstances, my discretion must be exercised in accordance with paragraph 1 of the summons. I therefore make an Order in terms of paragraph 1 of the summons.

Judgment on Costs

10. The parties are not agreed on the matter on costs. There is no doubt in my mind, having regard to the circumstances recited to me by the parties in the hearing and from the papers before me, that the Defendant is justified in taking out the application and in having costs awarded in his favour having won the application.

11. The question that is also in dispute is the quantum of costs. I have been given the gross sum bill, totalling $130,000 odd, but $12,000 of that is agreed to be taken off, so the total bill is $120,000 which includes $80,000 for counsel's brief and for considerable work undertaken by counsel. It seems to me that in all the circumstances, the amount is high. I do not belittle or under-estimate the considerable amount of work that had to be taken. This is an area of the law which is not easy. In my judgment thereof given on 22nd December 1998 in Yip Ku v. Kwan Kuk Lin, High Court Matrimonial Case No.5/1997, many of the difficult problems of this area of the law were canvassed and discussed, so I do not under-estimate the considerable amount of work that had been taken. But nevertheless it seems to me that the total costs of $120,000 is high. In my view, a proper sum by way of gross sum assessment in favour of the Defendant should be in the sum of $80,000, and that is the amount I assess by way of gross sum assessment in favour of the Defendant against the Applicant.