WORTH ACHIEVE ASSOCIATES LTD v. HUANG SHENG YI

HCA 2058/2005
HCA 2652/2006
(Consolidated)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NOS. 2058 OF 2005 and 2652 OF 2006 (Consolidated)

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R U L I N G

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1.  This is my ruling on the application of the Plaintiff for withholding my judgment of 6 February 2007 from the public domain.

2.  Shortly before the handing down of my judgment, the court received a letter signed by solicitors for both parties making the following request,

“Since the parties have been negotiating settlement of the Consolidated Action, we humbly ask His Lordship not to hand down his judgment in open court nor publish it in public domain.”

3.  That was not a request for adjourning the handing down of the judgment.  It was a request for not releasing the judgment to the public as opposed to releasing the same to the parties. 

4.  Further, it was not stated in the letter that the parties had reached a settlement.  It only stated that the parties were negotiating.  There was no indication whatsoever how close parties were to a settlement.

5.  As it transpired, the matter was not yet settled at the time when my judgment was handed down at 2:30 pm on that day.

6.  This court handed down the judgment on 6 February 2007 at 2:30 pm.  The judgment was not a draft or an advanced copy supplied to the lawyers.  In view of the request, this court directed that publication of the judgment to the public be withheld for the time being pending submissions on the request to withhold publication at 4:30 pm on 6 February 2007.

7.  In England, there is a practice of advanced copy of a judgment being supplied to the lawyers on a confidential basis for comments and preparation of draft orders before its formal handing down, see Practice Direction [1995] 1 WLR 1055 and Practice Statement [1998] 1 WLR 825.  It appears that such practice had been adopted by some English judges even before the publication of the Practice Direction and Practice Statement.

8.  We do not have a similar Practice Direction and Practice Statement in Hong Kong.  However, since it is a matter of practice governed by the inherent jurisdiction of the court to regular its own practice and procedures, I will not rule out the possibility of the practice being adopted by a judge in Hong Kong if he or she deems appropriate to do so.

9.  Regardless of the adoption of that practice in Hong Kong, this was not what this court did at 2:30 pm on 6 February 2007.  The judgment that was handed down took effect immediately upon its being handed down to the parties.  No duty of confidentiality had been imposed by the court at the time when the judgment was handed down at 2:30 pm.

10.  Hence, I was told by Mr Cheung for the Defendant that his firm had communicated my decision to someone in Shanghai between 2:30 pm and 4:30 pm on 6 February 2007.

11.  At 4:30 pm on 6 February 2007, I was told that action has been settled shortly before 4:30 pm.  Parties agreed to dispose of the action in terms of a draft consent order.  At the request of the parties, I made an order in terms of paragraphs 1, 4 and 5 of the draft.  The claims and counterclaims were dismissed with no order as to costs.

12.  On the withholding of the publication of the judgment, this court drew the attention of the parties to Article 10 of the Hong Kong Bill of Rights, in particular the following part of the article,

“… any judgment rendered … 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.”

13.  The solicitor appearing for the Plaintiff was unable to deal with that issue and at her request, this court granted the Plaintiff the indulgence of filing written submissions by 9 February 2007.

14.  The solicitor for the Defendant indicated that the Defendant did not pursue with the request.  In a letter dated 13 February 2007, the solicitor indicated that the position is covered by Article 10 and none of the exceptions provided therein is applicable.

15.  Mr Frederick Chan, counsel for the Plaintiff, conducted thorough research on the topic and helpfully provided this court with a very full written submissions on 9 February 2007.  I am indebted to counsel’s assistance in the deliberation of this question.

16.  Much of what counsel said and the cases he cited deal with the situation where parties reached full and final settlement before the judgment was handed down.  In that sort of scenario, I am in agreement with the following view expressed by Judge Peter Coulson QC in Gurney Consulting Engineers v Gleeds Health and Safety Ltd (2006) 108 Con LR 58, at para. 18,

“Many, perhaps most, cases are better settled than fought all the way through to a final judgment.  That principle holds good even after the conclusion of the trial itself, and if a late settlement means that a judge has done a good deal of work which thereby goes to waste, then that is simply an inevitable consequence of the process: judges just have to learn to live that that risk.”

17.  For reasons given above, we are not dealing with such a situation.

18.  Mr Chan referred to Economics Department of City of Moscow v Bankers Trust Co [2003] 1 WLR 2885 and [2004] 3 WLR 533.  That case dealt with arbitration claims.  Right of privacy is of course an important consideration in the handling of such claims.  More to the point in the present context, the issue of compatibility of private judgments with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms was discussed.  Mr Chan said Article 6 is in similar terms to our Article 10.

19.  Article 6 and Article 10 are materially different in respect of the dichotomy between the public nature of a hearing and the public nature of a judgment.  Article 10 clearly provides for a different set of exceptions for publication of judgment as compared with the exceptions for public hearing.  As set out above, Article 10 is very specific in that regard.

20.  On the other hand, Article 6 is more ambiguous,

“Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

21.  Hence it is open to interpret the exceptions provided for public hearings in Article 6 as equally applicable to publication of judgment.  This is what the Strasbourg jurisprudence as well as the English cases decided, see B v United Kingdom (2001) 34 EHRR 529 applied in Economics Department of City of Moscow v Bankers Trust Co [2003] 1 WLR 2885 and [2004] 3 WLR 533.

22.  In view of the clear and specific wordings in Article 10, I do not think one can apply the exceptions for public hearings to the publication of judgments when the Article has explicitly provided for that by reference to a different set of exceptions.

23.  In Article 10, the exception in respect of the private lives of the parties is only applicable to public hearings.  It does not apply to publication of judgment.

24.  None of the exceptions provided for publication of judgment under Article 10 is applicable in the present instance.

25.  Therefore, this court does not have any discretion to withhold the publication of a judgment that had already been handed down to the parties.

26.  Further, even if I were wrong on my interpretation of Article 10, I do not consider it appropriate to exercise my discretion to withhold publication.  The judgment was in respect of an application for interlocutory injunction and anti-suit injunction.  The hearing had been open to public.  The matters canvassed in the judgment had already been disseminated to the public through reports in the media during the course of the hearing.

27.  In addition, I have discussed some legal principles in my judgment that may have application in other cases.  I reiterate what I said in the last paragraph of my judgment in Young’s Engineering Co Ltd v The Hong Kong and Shanghai Banking Corporation Ltd HCMP 2676 of 2002, 18 June 2004.  In Prudential Assurance Co Ltd v McBains Cooper [2000] 1 WLR 2000, the judge’s decision to proceed with the handing down of his judgment despite the settlement of the disputes after the parties had sight of his judgment was upheld by the Court of Appeal.  After confirming that the judge had a discretion to continue with the process of handing down of judgment, Brooke LJ made this observation with regard to the exercise of discretion at p. 2009H,

“… although much of his judgment was of interest only to the immediate parties to the dispute, there were three rulings on points of law which were potentially of wider interest …” 

28.  I respect the parties’ right to settle their disputes.  Indeed, it is an approach I personally endorsed, see Paragraph 61 of my judgment of 6 February 2007.  However, I do not see any valid basis for not publishing the judgment that has already been handed down.  I must reject the application of the Plaintiff.

29.  To address the Plaintiff’s concern as regards the confusion that may be caused by the belated publication of judgment, I will reiterate again since the handing down of the judgment on 6 February 2007, the actions have been settled and the parties had already made a press release on terms set out in the Annex to this Ruling.  It would therefore be advisable for any press reports of the judgment (if there were still any interest on the part of the press to report on a stale subject) to include a reference to these developments after the handing down of the judgment. 

30.  Lastly, I wish to thank Mr Chan for his valuable assistance.