WSSA v. SYH

FCMC 4633 / 2020

[2023] HKFC 94

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 4633 OF 2020

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D E C I S I O N
(Rule 121 of MCR, Cap.179A)

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General Background

1.  The Petitioner is the wife (“W”) and the Respondent is the husband (“H”).   Parties married with each other on 28/9/2007.   There are 2 children born out of the marriage, a boy in 2009 and a girl in 2012.

2.  On 29/9/2017, W filed a Petition for divorce on the fact of “Unreasonable Behaviour” under FCMC No.12797/2017.  These divorce proceedings ended up with the consensual arrangement that a fresh petition for divorce on “Two Years Separation” to be filed.

3.  On 9/6/2020, W filed the Petition for divorce on the fact of “Two Years Separation”.   Decree Nisi was granted on 8/6/2021. Questions of custody and ancillary reliefs were adjourned for further disposal. 

4.  By an Order dated 29/7/2021, interim care and control of the 2 children was granted to W.  Interim defined and supervised access was granted to H which involved the services of “Rent-A-Mum” during the defined access.

5.  By an Order dated 7/9/2021, the interim defined and supervised access arrangement was varied on some logistics as to the time and place of pick up and return of the 2 children.

6.  Suffice it is to say that the parties are persistently in high-conflict momenta over children’s matter; in particular, over the elder child who was at the age of 12 in 2021.   

7.  There are various interlocutory application(s) which was pending to be resolved as a result of H having taken out a recusal application and the decision of which was pending (“Recusal Decision”).   Those “yet-to-resolve” interlocutory application(s) would be disposed of after the Recusal Decision was available.   H was seeking that I should recuse myself from further handling these proceedings.   

Chronology of events leading to W’s application

8.  On 26/4/2023, W’s lawyers Messrs. Ho & Ip (“HI”) wrote to the Duty Judge of the week (who was then Deputy Judge J Cheung) seeking an urgent date to be listed for hearing W’s application under Rule 121 of the Matrimonial Causes Rules, Cap.179A (“MCR”) and the inherent jurisdiction of the Court (collectively called the “Rule 121” application).   Attached with the letter was a draft of the Summons and the 17^th Affidavit of W sworn on the same day.   The letter was marked to copy to my clerk and H’s lawyers Messrs. Withers (“Withers”).

9.  In broad terms, W’s Summons sought for :

“General leave be granted to the Petitioner to use, produce and/or refer to

the documents and/or information disclosed or filed in the present proceedings under FCMC 4633 of 2020 and FCMC 12797 of 2017 and correspondences relating thereto and to provide the same to MRL for defence of the criminal charges in HKSAR v MRL under ESCC 108 of 2023 at the Eastern Magistrates Court.

The Petitioner be released from any implied undertaking in relation to the   abovementioned documents and/or information for the purpose stated in    the above.”

10.  On 27/4/2023, this Court granted directions as follows :-

“Please provide a schedule listing out which documents, information and correspondence in FCMC 4633/2020 and FCMC 12797/2017 sought to be disclosed in the said ESCC case.”

11.  On 28/4/2023, HI wrote in reply and attached with a 3-page schedule of documents categorized under different headings, namely, (A) Pleadings; (B) Affidavits; (C) Summonses; (D) Orders; (E) Reports; all of which in total 49 items (collectively called “the Documents”).

12.  On the same day, that is 28/4/2023, Withers wrote to HI and copied to this Court regarding HI’s requests made to this Court for issuing the intended “Rule 121” application where they said :-

-  Delay of HI in copying to them the letter dated 26/4/2023 sent to the Family Court until after this Court granted the directions on 27/4/2023.  They only received HI’s letter and attachment(s) at 1740 hours on 27/4/2023; and

-  The need of confidentiality to safeguard the privacy of parties in proceedings in the Family Court; protection of intimate disputes also involving private evidence especially when young children are involved.

13.  On 2/5/2023, Withers wrote to this Court stating their preliminary views on W’s intended “Rule 121” application where they said :-

-  As per HI’s schedule of documents, W was seeking disclosure of the majority of documents in the divorce proceedings which they estimated taking up approximately 10 bundles.  W was only making a blanket request and not answering this Court’s memo of directions dated 27/4/2023;

-  In light of the pending “Recusal Decision”, whether it is appropriate for this Court to hear and determine W’s intended “Rule 121” application;

-  H should be afforded sufficient time to prepare his response to W’s request for leave.  It concerns children and their privacy.  W’s application needs to be properly heard and not deal with in any rush manner.  It was W who chose to issue the application very late.

14.  This Court was informed by HI that there was a 3-day trial in the criminal case of ESCC 108 of 2023 commencing 17/5/2023 at the Eastern Magistracy which called for the urgency of dealing with W’s intended “Rule 121” application.

15.  On 5/5/2023, this Court arranged a 30-minute hearing for W’s Summons for the “Rule 121” application.   Specific directions were granted on the exchange of written submissions and the time allotted for oral submissions (if any) by each party within the 30-minute hearing.

16.  Parties’ legal teams complied with the directions given by this Court and produced their respective written submissions. In their submissions, each side referred to one authority as directed by this Court.  W referred to the unreported case of DJ v LRM, FCMC No.8507/2013.  H referred to the Court of Appeal decision in Secretary for Justice v FTCW [1].

The statutory provisions and related cases

17.  Rule 121 of the MCR provides :-

“121. Inspection etc. of documents retained in court

(1) A party to any matrimonial proceedings or his solicitor or the Secretary for Justice may have a search made for, and may inspect and bespeak a copy of, any document filed or lodged in the registry in those proceedings.

(2) Except as provided by rules 47A(3) and 95(3) and paragraph (1) of this rule, no document filed or lodged in the registry, other than a decree or order made in open court, shall be open to inspection by any party without leave of the court, and no copy of any such document, or of an extract from any such document, shall be taken by, or issued to, any person without such leave.”

18.  Matrimonial proceedings are largely private in nature.  The rationale of Rule 121 was for the protection of the parties involved in the matrimonial proceedings.   The documents filed in such proceedings shall not be disclosed in public unless leave of the court seized with the matrimonial proceedings has been obtained:  see Horst Joachim Franz Geicke v I-Onasia Ltd, HCA 2379/2009, 17 October 2011 §32, per DHCJ Lok (as he then was).

19.  In the case of Li Lihong v Choi Tung Chi & Anor[2], where it was said by DHCJ William Wong, SC., at paragraph 6 :-

“The proper forum to seek leave for the use of the documents covered by MCR Rule 121(2) and the implied undertaking …..……. is the Family Court (see Nayler v Beard [2001] 2 FLR 1346 per Wilson J (as he then was) at para 25 and per Hale LJ (as she then was) at para 49). The rationale of such practice is that the other party to the family proceedings (here, Mr Chan) should be allowed a voice in the debate, and this voice is likely going to be given proper attention in proceedings to which he is a party.

20.  In the unreported case of Wong Kwok Hin v Wong Lai Fan & Anor, date of decision: 13/6/2001, where Hon P. Cheung J (as he then was) had said :-

“2.  Rule 121 of the Matrimonial Causes Rules provides that a party to any matrimonial proceeding may, among other things, bespeak a copy of   any document filed in the registry of those proceedings.  As to non-  parties, Rule 121(2) provides that : “Except as provided by Rules 47A(3)   and 95(3) and paragraph 1 of this rule, no document filed or lodged in the  registry other than a decree or order made in open court, shall be opened to inspection by any person without leave of the court, and no copy of     any such document, or of an extract from any such document, shall be  taken by or issued to, any person without such leave,”

3.  The provisions of Rules 47(A)(3) and 95(3) are not relevant to this case.  By virtue of Rule 121(2), the affirmation is clearly confidential in    nature and intended to be so.

4.  ……

5.  ……

6.  Phipson on Evidence 15^th Edn, at para.22-07 stated that “..….once affidavit has been served and filed, it would have been hard to imagine     that it was possible to assert a claim for privilege even against the third party in subsequent proceedings.”   And also, “No implied undertaking      arose in the case of an affidavit once served not to use it for collateral    purpose, save in those situations where the affidavit will require for a   compulsion, where it was established that undertaking not to use the     affidavit for collateral purpose would be implied.”

7.  In my view, affirmations filed in matrimonial proceedings must      be subject to special treatment because of the terms of Rule 121(2).  It     would be absurd if a non-party which had not obtained leave in the first   place to inspect or copy the documents would nonetheless be able to use    the documents in subsequent proceedings as if Rule 121 does not exist.     (emphasis added).

8.  There were cases in which documents relevant to family  proceedings were supplied to a third party by either the immediate parties   or their privies in the matrimonial proceedings, examples are, Medway v  Doublelock Ltd [1978] 1 All ER 1261, where the wife in a matrimonial      proceeding supplied her husband’s affidavit of means to parties who were  engaged in litigation with the husband; S v S [1997] 3 FCR 1 and R v R   [1998] 1 FLR 922 are cases where the Inland Revenue received documents     of family proceedings in which there was evidence that the husbands had    under declared their income.  The court in these cases had to consider the     nature of the case before deciding whether the third party could make use of the documents. (emphasis added)

H’s point of concern

21.  Before giving consideration to W’s application substantively, it is pertinent for me to first address the concern of Withers as stated in their letter dated 2/5/2023[3] (although such concern was no longer raised in the written submissions dated 8/5/2023 by Senior Counsel Miss Anita Yip S.C. leading Mr. Ken Chan or at the oral hearing) about the suitability for me to hear and determine W’s “Rule 121” application in light of the “Recusal Decision” was pending.  

22.  In the case of Secretary of Justice v FTCW & Anor[4] which is a case on appeal by the 2^nd to 4^th defendants against an order granting access to the Secretary of Justice to inspect and take copies of documents which had been filed or lodged before the trial judge Saunders J in matrimonial proceedings HCMC 5 of 2008 and also in the case of HCA 566 of 2010.

23.  The learned trial judge had also released the 1^st defendant (the wife in the matrimonial proceedings) from her implied undertaking in HCMC 5 of 2008 for disclosing to and discussing with the Secretary of Justice and the Police on documents; in particular, an “Agreement for the Grant of a Loan Conversion Option” which may be required in the course of criminal investigation.   

24.  At paragraphs 16 to 19 of the judgment, Hon Lam VP (giving the judgment of the Court of Appeal) said :-

“B. The jurisdiction to grant access

11. …..

12. …..

13. …..

14. …..

15. …..

16. In our judgment, it is clear before peradventure that the court has inherent jurisdiction to control access to the documents placed in its custody in relation to legal proceedings, whether they are filed in accordance with the rules or produced as exhibits during the course of proceedings or simply lodged with the court or handed up to a judge by the parties for the purpose of the legal proceedings. Since control would include the power to restrict as well as the power to grant access. Whilst there are different rules governing specific areas of this power in the Rules of the High Court, e.g. Order 35 Rules 12 and 13 and Order 63 Rules 4 and 9, as well as the Matrimonial Causes Rules (Rule 121), they are not a comprehensive code. They only represent some facets of the general power of control exercisable by the court over access to documents within its custody. We do not accept the submission that those rules have the implied effect of abrogating any common law power of the court in granting or restricting access to documents. A similar contention based on rule 5.8 of the Criminal Procedure Rules 2011 were rejected by the English Court of Appeal in the Guardian News case. In that case, Toulson LJ considered the power to grant access as an incidence of open justice. Whilst we are in respectful agreement with that analysis, the underlying rationale for the exercise of such inherent power can also be explained by reference to the nature of the judicial process, which is of greater relevance in the context of the present appeals.

17. One significant difference between the adjudication of a dispute by a court of law and the resolution of such dispute by other means like arbitration or mediation is that the exercise of judicial power is one with public authority. The judicial process is a coercive one, meaning that it is not a consensual process. Rather a judicial decision is backed up by sanction imposed by a public authority. An order or a judgment of the court can be enforced coercively by means which are not available to other

private dispute resolution mechanism.

18. There is another facet to this public character of the judicial process: it is not up to the parties to decide consensually what the rules are. They have to follow the rules in the relevant set of rules of court and other directions given by the court in the conduct of their litigation. That is so irrespective of whether the court hears a case in open court or, like most first instance hearings in family cases, hears a case in chambers not open to public. The parties do not have control over the process. Thus, once a document has been filed, lodged or otherwise placed in the custody of the court, a party has no control over its use. Whilst he or she might advance submissions to the court as to whether there should be restriction on the access to the document, he or she cannot withdraw the document unilaterally. Nor can he or she dictate the terms as to which the document is supplied to the court. This does not mean that the court can exercise its control over the document arbitrarily. But it does have the power to determine to whom access should be given in respect of a document and to regulate the manner in which such access should be exercised.

19. Though the documents are sourced from the parties (or witnesses), once they come into the possession and custody of the court, they are   subject to the power of the court in terms of access to the same.  The court  does not exercise its power of possession or custody on behalf of the   person from whom the document is supplied.  The court has possession and custody of the document as part of the judicial process and it exercises   its power of control over the document with reference to the interest of   that process.  Whilst the primary interest of the process is the fair    adjudication of the dispute, the court also has a duty in safeguarding the     integrity of the process.”

25.  It is clear from the above that W’s present application falls within the judicial process of this Court to exercise its power of control over documents in its possession and custody.   This is in stark difference from this Court adjudicating upon the parties’ respective reliefs ‘vis-à-vis’, financial or otherwise, in these matrimonial proceedings. It is only in the latter scenario that the “Recusal Decision” was pending would be a matter of concern.  

26.  Moreover, it is trite that the filing of a recusal application against the judge in charge of a case and the decision of such recusal application was pending does not operate as a stay of the proceedings in respect of which the recusal was sought.   More importantly, the fact that there was a pending decision on recusal does not abrogate or inhibit the judge’s function or power to exercise control over access to the documents placed in its possession and custody in the proceedings.

27.  This is in analogy to cases of appeal whereby the filing of a Notice of Appeal or an application seeking leave to appeal does not, insofar as the proceedings are concerned, (i) operate as a stay of the decision being appealed against; and (ii) change or alter the state of the proceedings from where it last stands.

28.  In Withers’ letter dated 2/5/2023[5], it also referred to this Court’s decision at the last hearing to “adjourn” all of H’s parallel application(s) for the interim.    With respect, this was not the record of the Court.   There was no Order granted at the last hearing to “stay” these proceedings ending up with “adjourning” all of H’s parallel application(s) in the interim.   Nor was there any standalone adjournment order made at that hearing.   It was, however, a case management direction/decision that, in light of H’s recusal application being lodged in parallel to his other interlocutory application(s), it was usual and proper for all of H’s parallel interlocutory application(s) in the interim to be dealt with (emphasis added) after determination of H’s recusal application in order to see how things go.   This was so decided at the previous hearing.   With respect, it was incorrect, if not being unfair, to mis-interpret the situation as if this Court had made an order to “adjourn” all of H’s parallel interlocutory application(s) at that time but nonetheless deals with W’s application at this time.

29.  Being the docket judge overseeing the background of this case, and with a full picture of the many “yet-to-resolve” interlocutory application(s) in abeyance, I believe it is most suitable and proper for me as the docket judge to deal with W’s present application.  This would also be fair to the Duty Judge who quite often was required to seize upon a case on short notice. 

30.  Since Withers’ concern on this aspect was not taken further in their Counsels’ written submissions and at the oral hearing, I shall say no more on this.

The Balancing Exercise

31.  On top of Rule 121 of the MCR, the Family Court has the general power of control over access to documents within its possession and custody at common law (emphasis added), and the exercise of the inherent jurisdiction is subject to a balancing exercise in terms of weighing the relevant conflicting interests and rights: see Secretary for Justice v FTCW & Ors [2014] 1 HKLRD 849, at §§ 16, 27-28, per Hon Lam VP.

32.  In the Secretary for Justice v FTCW case (supra), the 2^nd to 4^th defendants in the case appealed against an order of the Court of First Instance granting leave to the Director of Public Prosecution (“DPP”) to inspect and take copies of documents which had been filed or lodged in the matrimonial proceedings HCMC 5 of 2008 and HCA 566 of 2010 for the purpose of carrying out criminal investigation.   The wife in the matrimonial proceedings was also released from her implied undertaking as to confidentiality for the sole purpose of disclosing to the Secretary of Justice and the police such documents as may be required for the criminal investigation.

33.  At paragraph 114 of the judgment, Hon Lam VP said :-

“E. The balancing exercise

114. After due consideration on the principal grounds of the Husband and STL to resist access being granted by the court to the Director, we can now come back to the balancing exercise. We repeat para 85 of Guardian News in which Toulson LJ set out the approach for balancing conflicting factors :

“In a case where documents have been placed before a judge and referred to in the course of proceedings, in my judgment the default position should be that access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong. However, there may be countervailing reasons…..…I do not think that it is sensible or practical to look for a standard formula for determining how strong the grounds of opposition need to be in order to outweigh the merits of the application. The court has to carry out a proportionality exercise which will be fact- specific. Central to the court’s evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others.” (emphasis added)

34.  As regards the scope of documents that are subject to the implied undertaking, it was said in Matthews & Malek, Disclosure (5^th Edn 2017) at 19.11 to 19.14 the following :-

“At common law the undertaking covers not only documents disclosed on discovery, but also any other documents disclosed by a party under compulsion of court process. Thus the undertaking has been held to apply to documents produced under a subpoena duces tecum, or under the Norwich Pharmaceutical procedure, or under an order made pursuant to s.7 of the Bankers’ Books Evidence Act 1879, or for the purposes of detailed assessment of costs, or under the procedure for giving effect to letters of request, as well as affidavits and exhibits produced only because the court has ordered them to be provided by way of discovery of assets pursuant to the asset-freezing (Mareva) jurisdiction or a search (formerly Anton Piller) order, or in matrimonial proceedings. The undertaking also extends to information in Lists of Documents given on discovery as well as to the documents themselves. It has even been held to apply beyond documents, but where an equivalent process of compulsory disclosure has been used by the court to order inspection of a machine or tests on samples, and, in Canada, to transcripts of oral discovery examination…..

The undertaking also applies to information supplied under the Norwich Pharmacal procedure. Similarly, r.31.22 applies to documents disclosed as a result of a Bankers Trust/Norwich Pharmacal order. But where the court making the original order is alerted to the possibility of subsequent proceedings (whether in this jurisdiction or some other) the court must be taken to have consented to the use of any documents obtained under the order in those subsequent proceedings.

The undertaking does not apply to documents voluntarily disclosed, such as affidavits and exhibits put in voluntarily and not by any order of the court in opposition to an application for asset freezing (Mareva) relief, or in support of a strike out application. This is consistent with the rationale of the implied undertaking. In relation to documents voluntarily disclosed, the court has not invaded the privacy of the party; it is the party himself who has destroyed the privacy of the documents. Nor does the undertaking apply to documents or information which belong to the claimant who recovers them as a result of the execution of a “search and seize” (Anton Piller) order. More curiously, it seems that it does not apply to information disclosed pursuant to an interim receiving order under the Proceeds of Crime Act 2002.”

35.  So much has been said on the law and legal principles, I will now move on to the substantive reasons put forward by W for her “Rule 121” application.

W’s application in context

36.  In her 17^th Affidavit, W deposed that her domestic helper MRL was charged by the Police for 3 counts of “common assault” of which H was the alleged victim.   MRL was facing a 3-day trial in the Eastern Magistrates’ Court in less than a month’s time commencing 17/5/2023 (the “Criminal Proceedings”).   All the offences were said to have taken place in 2020 and 2021 at the former matrimonial home when H was still residing there. Shortly before today’s oral hearing, I was informed by HI that the 3-day criminal trial has now been adjourned for a mention hearing on 26/6/2023.  

37.  I was also informed previously that Mr Eric Kwok S.C. had been instructed to defend for MRL at the said 3-day trial of the Criminal Proceedings.  W said she was given to understand lately by MRL’s legal team that MRL could only properly conduct her defence to the 3 charges with access to the materials in these divorce proceedings.[6]   Hence, W could only apply to this Court on short notice.

38.  W said MRL was one of her witness in these divorce proceedings and had filed affidavit evidence on the dynamics within the former matrimonial home at the material time.  MRL’s affidavit evidence could show H’s aggressive behavior towards MRL and her as well as his bad influence on the 2 children of the family[7].

39.  The reasons provided by W[8] for her “Rule 121” application and release from her implied undertaking could be summarized as follows :-

(a) The incidents of the former matrimonial home which are now the subject of the 3 charges laid upon MRL have been detailed in a number of affidavits of H and herself in these divorce proceedings;

(b) It is important for the criminal court to be apprised of the broader background to the alleged assaults as deposed to in the parties’ affidavit evidence; as well as other documents and correspondence; (c)  An overview of the background of the parties would shed light on the incidents leading to the 3 charges laid upon MRL;

(d) The criminal court had known the existence of these matrimonial proceedings.   H in his statement to the Police had said MRL would gather evidence against him in these matrimonial proceedings;

(e) As one of MRL’s defence witness in the Criminal Proceedings, she would be cross examined on broader context surrounding the 3 alleged incidents of assault.  It may become necessary for her to refer to documents and/or correspondence in these matrimonial proceedings;

(f) The use of the documents, correspondence and information in these matrimonial proceedings would be limited to assisting MRL in properly defending the 3 charges, there would be no prejudice caused to H.

40.  In the following paragraphs of this Decision, I will refer to W’s reasons by their alphabetical numbering of (a) to (f).

Discussion

41.  One of the feature in this application was that the access to and disclosure of documents sought by W was not for herself but to facilitate the non-party MRL in defending the Criminal Proceedings.   As H’s Senior Counsel Miss Yip S.C. pointed out in her submissions at the oral hearing, which I agree, why should W be in the “driver seat” for MRL for this application ?   Why, and to what extent should, MRL be given the information and materials, which are not only substantial in quantity, but also covering confidential materials relating to parties and children, even contained personal materials covered by medical confidentiality be disclosed to MRL and be used, but only if she was so advised, in her defence in the Criminal Proceedings ?

42.  W’s Counsel Miss Theresa Chow replied and submitted that upon research there was no local authority on a non-party intervening in matrimonial proceedings to seek for disclosure of documents and information although there are some overseas authorities on such point.   Counsel Miss Chow in reply conceded the “non-party” point and came up with a “fall-back” position that W would accept that leave be granted for her to send over to MRL’s legal team the list of requested documents for them to consider if they would come forward to seek leave from this Court. 

43.  Given that such belated “fall-back” position only came up ad hoc and was not stated as an alternative reliefs sought in W’s Summons, it would be unfair for me to deal with such belated “fall-back” position at this stage and in this hearing.

44.  In the case of DJ v LRM, unreported, FCMC No.8507/2013, the Rule 121 application was allowed to enable the wife in that case to prepare her written representation to the Department of Public Prosecution (“DPP”), to invite them to reconsider their decision to prosecute her on child abuse.   The learned judge rightly decided the application under the open justice principle and, upon his balancing exercise, he came to the conclusion that an overview of the background of the ongoing matrimonial disputes between the husband and the wife would probably shed light enabling the DPP to have an objective evaluation of the incident upon which prosecution was decided.  In the judgment, the learned judge said :-

“22. As can be seen from the above authorities, the default position is that access to documents filed in court proceedings should be permitted on the open justice principle, subject to the proportionality exercise. The fact that these are matrimonial proceedings does not detract from such a position but represents only one factor to be taken into account in the balancing exercise.

23.   In the present case, obviously it is in public interest to enable W    to properly conduct her defence against a criminal charge laid against her.   No doubt it is in the interest of justice that W should have access to relevant and necessary materials for the purpose of conducting her defence     in the criminal proceedings.”

45.  In my view, the facts of this case are different from the DJ v LRM case (supra).    Here it was MRL (W’s domestic helper and a non-party to these matrimonial proceedings) who was being prosecuted and not W. I have not been assisted by either one of the legal teams whether it is permissible, in the criminal law context, for a defence witness to “inter-twin” with the defendant by providing the defendant additional information and materials other than performing his or her duty to give truthful oral testimonies in the Criminal Proceedings as a witness of fact.

46.  I must confess that with my limited experience in criminal cases, I have reservation on such peculiar situation since the applicant for access or disclosure was a party to the marriage who seeks to assist a non-party’s defence to criminal charges whilst the alleged victim of those charges was the other party to the marriage.   W would also be giving evidence as one of the defence witnesses in the criminal trial.   This is different from the case of Medway v Doublelock Ltd (supra) which involved civil claims referred to in the judgment of Wong Kwok Hin v Wong Lai Fan & Anor (supra)[9]. It also differs from S v S (supra) and R v R (supra) where the recipient of documents was the Inland Revenue for enforcement under due process of law.

47.  Assuming it was permissible for W (defence witness) to assist MRL (defendant) in the criminal law context, I would still refuse W’s application on the open justice principle with the balancing exercise properly done from the public interests and confidentiality perspective and also from the criminal procedure perspective.    

48.  Prosecution in criminal proceedings are conducted by the DPP under a set of rules and procedure different from civil cases in many aspects.   First and foremost, unless otherwise provided by statute or at common law, the burden of proof in criminal cases always rests upon the prosecution and the requisite standard of proof is that of “beyond reasonable doubt”.   It is not for the defence to prove innocence.     

49.  That said, the defendant has the right to make the submission of “no case to answer” after the prosecution case was closed.   Further, the defendant also has to right to elect not giving evidence even after “a case to answer” was ruled in by the criminal court on the prosecution evidence.    With all these in mind which was not ascertainable at this stage, nor was W capable of managing MRL’s strategy of defence,the balancing exercise must lean towards protecting the confidentiality of the parties in the matrimonial proceedings rather than affording the non-party MRL to use confidential materials in these matrimonial proceedings at her ease and convenience under the shield of “public interests”.

50.  Besides, in the criminal law context, the privilege against self-incrimination (“PSI”) at common law available to MRL was something which this Court must consider when deciding whether to grant access or disclosure.  However, as MRL’s defence witness, W was in no position to address this Court on the issue PSI on behalf of MRL.  Such issue could only be brought up for this Court’s consideration by the defendant in the Criminal Proceedings (that is MRL) who was not the applicant in this Rule 121 application.

51.  At paragraph 29 of the Secretary for Justice v FTCW case (supra), where it was said :-

“29. Before we turn to the balancing exercise, we must examine two principal grounds relied upon by Mr. Pointer and Mr. Thomas in resisting permission to grant access :

(a) Privilege against self-incrimination [PSI]; and

(b) Legal professional privilege [LPP].

In the course of doing so, we must also consider (if such privileges can      be relied upon) whether the privilege concerned present an absolute bar   against the grant of access instead of being one weighty factor in the   balancing exercise.”

52.  Finally, there was no affirmation from MRL to provide the reasons (if any) as to why she did not seek leave herself from this Court or was she aware of W’s “Rule 121” application.    Given the acrimony between H and W in these proceedings, it would be important for W when seeking leave for access and disclosure of documents and information, in particular in assisting a non-party, to convince this Court that her application was a bona fide one and not taken out mala fide or any concerted effort with MRL to vandalize H.    Such information would assist the Court’s proportionality exercise to evaluate the purpose of using the documents and information and any risk of harm to the legitimate interests of H.[10]

W’s grounds of application[11]

53.  On ground (a), I failed to see how the incidents of the former matrimonial home could not be revealed, if so required, during the course of trial of the Criminal Proceedings and need to be checked upon the contents of the parties’ affidavits filed in these proceedings.   This ground is not accepted.

54.  On ground (b), the importance and relevance of the broader background to the alleged assault(s) are matters within the decision of the criminal court and not for W, a defence witness, to decide or say so.  This ground is not accepted.

55.  On ground (c), this is a replicate of ground (b).   The need (only if so required) and importance to have an overview of the background are matters within the decision of the criminal court and not to be dictated by W.   This ground is not accepted.

56.  On ground (d), whether the criminal court was aware of these matrimonial proceedings is neither here nor there.  Granting or refusing access and disclosure under Rule 121 of the MCR does not premise upon the awareness of the criminal court of these proceedings where documents or materials were obtained.   This ground is not accepted.

57.  On ground (e), when being cross examined at the trial of the Criminal Proceedings, W was only required to tell the truth from the best of her memory and recollection.   W failed to show that she was incapable or unable to give oral testimonies without the aid of the documents and materials which she now sought for access and disclosure.   This ground is not accepted.

58.  On ground (f), the need to safeguard confidentiality of parties in these proceedings outweighed MRL’s right to use the documents, correspondence and information sought by W.   This ground is not accepted.

H’s areas of concession

59.  I noticed that at paragraph 15 of H’s Written Submissions, H proposed that leave be granted to W to disclose items 11 to 16 (properly redacted) of her 3-page schedule of documents.   This was not accepted by W who pressed for access to and disclosure of all the items in the 3-page schedule.

60.  The Court’s jurisdiction to control access to the documents and information placed in its possession and custody in relation to legal proceedings is a judicial process in respect of which the parties do not have control.[12]   Hence, there is no room for H to concede to W’s access and disclosure if such application was not accepted by the Court under the open justice principle, not to also mention failing in the balancing exercise.

61.  With my decision on W’s application unsuccessful in its context and entirety rather than on the scope of documents, I do not grant leave to use those documents which are conceded by H.

62.  With such decision, I do not need to venture into each and every one of those 49 items of documents in W’s 3-page schedule.

Uplift of Implied Undertaking

63.  On W’s application for uplift of the implied undertaking, I also stand by my decision against W in respect of her application made under the statutory provisions of Rule 121 of the MCR.

Decision

64.  For all the above reasons above, I decided that W’s “Rule 121” application fails.

Costs

65.  Given the fact that W completely fails in her application, it is fair and reasonable for her to bear H’s costs of and incidental to her application.

66.  And I will so order.  

67.  This is a standalone application unrelated to the parties’ ancillary reliefs, or to any of the “yet-to-resolve” interlocutory application(s), I decided that H’s costs to be taxed if not agreed, and to be paid forthwith by W.

68.  W’s application does not involve any difficult points of law or any complexity which called for the assistance of Senior Counsel.   Hence, I would only grant Certificate for one Counsel for H.

Orders

69.  I now grant the following orders:

(a)  W’s Summons dated 26/4/2023 be dismissed;

(b)W do pay to H the costs of and occasioned by her Summons dated 26/4/2023 to be taxed if not agreed, and to be paid forthwith; and

(c)  There be Certificate for one Counsel.

70.  This is a costs order nisi which would become absolute if no application to vary the same was filed within 14 days from the date of this Decision.

[1] [2014] 1 HKLRD 849

[2] [2018] HKCFI 2344

[3] See paragraph 13 of this Decision

[4] [2014] 1 HKLRD 849

[5] See paragraph 13 of this Decision

[6] See paragraph 7 of W’s 17^th Affidavit

[7] See paragraph 5 of W’s 17^th Affidavit

[8] See paragraphs 9 to 14 of W’s 17^th Affidavit

[9] See paragraph 20 of this Decision

[10] §114 of Secretary for Justice v FTCW & Ors [2014] 1 HKLRD 849

[11] See paragraph 24 of this Decision

[12] §18 of Secretary of Justice v FTCW & Anor [2014] 1 HKLRD 849