TCWF v. LKKS

CACV 166/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 166 OF 2012

(ON APPEAL FROM HCMC NO. 5 OF 2008)

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BETWEEN

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REASONS FOR DECISION

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Hon Lam JA (giving the reasons for decision of the Court):

1.  There are 2 summonses before us,

(a)  Petitioner’s summons dated 1 November 2012 [“P’s summons”] seeking (i) leave to disclose documents for enforcement proceedings in other jurisdictions and (ii) a Hadkinson order against the Respondent regarding this hearing;

(b)  2^nd and 3^rd Interveners’ summons dated 26 November 2012 [“I’s summons”] seeking (i) to strike out / expunge Petitioner’s 2^nd Affidavit and (ii) an order that the hearing of the Petitioner’s summons take place in private.

2.  As regards whether we should hear the application in private, we are of the view that as long as one focuses on legal submissions and the principal issues that need to be decided (and the court can exercise its case management power to ensure the parties focus on the same), there is no justification for hearing in private as far as P’s summons is concerned.  As it has been held in the recent decision in ATV v Communications Authority CACV 258 of 2012, 7 December 2012, in view of Article 10 of the Hong Kong Bill of Rights, this court should generally sit in open court unless there is sufficient justification for ordering that the matter be heard in private.  For present purposes, it suffices to say given the scope of the arguments that are germane to the relevant issue in this application, we do not think there are reasons of morals, public order (order public) or national security in a democratic society, or that the interest of the private lives of the parties require us to hear the matter in private.  Whatever might be said in this hearing should not (and we have made sure it did not) reveal to the public personal information about the parties more than that which is already in public domain. Nor do we see any ground for believing that in the present case publicity would prejudice the interests of justice.

3.  As regards the Hadkinson application, we are the view that it is a matter of discretion: see Jademan (Holdings) Ltd v Tony Wong Chun Loong CACV 71 of 1990, 8 June 1990.  Bearing in mind the constitutional right to a fair hearing, in the present circumstances, we regard it as disproportionate to bar the Respondent from making any submissions notwithstanding his partial non-compliance with the order of Saunders J.  In this respect, we very much have in mind the approach set out by Ryder J in Mubarak v Mubarik [2004] 2 FLR 932 at para 59.

4.  In any event, a Hadkinson order cannot bar the Interveners from making submissions.  As we shall see below, the crucial point here is the jurisdiction point and it is a point taken by both the Interveners and the Respondent.

5.  On the substantive application for disclosure of documents, it is necessary for the Petitioner to seek leave because of the implied undertaking with regard to the use of documents obtained by discovery in the proceedings below and the restriction imposed by Saunders J in terms of the publication of his judgment.

6.  Having read the skeleton submissions of the parties, we took the view that we should first focus on the jurisdiction point. Thus, at the beginning of the hearing, we directed the parties to address us on that point and, as it turned out, we were able to dispose of the summonses based on our conclusion on this point. 

7.  Mr Coleman SC and Mr Manzoni SC argued on behalf of the Respondent and the Interveners that the Court of Appeal, as an appellate court, has no jurisdiction to entertain the application for disclosure which is an original application in substance.  Even if it does have jurisdiction, counsel submitted that we should not hear it as a matter of discretion.  They referred to section 13(2) of the High Court Ordinance [“HCO”] and Great Perfect Investment v Leung Yat Wah [1990] 2 HKC 219.  In that case, the Court of Appeal declined to exercise the power to entertain a striking out application on the following basis,

“…Mr Fung invites us now to hear the striking out applications. This, in so far as we have any discretion in the matter, we decline to do. The other parties should not be deprived of the normal avenues of appeal merely because, on the arguments addressed to us, the plaintiffs’ case appears to be particularly strong. Further, if we were to entertain the substantive applications, we might well be exercising an original jurisdiction which is not conferred upon us …”

The court then referred to section 13(2).

8.  On the other hand, in her skeleton submissions, the Petitioner relied on section 35 of HCO and inherent jurisdiction.  She also referred to the observation of Saunders J  that he would leave it to the Court of Appeal to decide whether the non-publication of his judgment should continue pending appeal. 

9.  At the hearing, she further referred to section 34B(4)(ab) of the HCO and Order 59 Rule 14(4). She contended that her application is an interlocutory application in the appeal as it related to an issue in the appeal, namely the publication of the judgment. 

10.  We were also told that there is to be a hearing in February 2013 in the Court of First Instance in respect of the release of documents in the proceedings below to the Secretary for Justice.

11.  In our judgment, the disclosure now sought by the Petitioner is of a different nature from that of the disclosure to be dealt with in February.

12.  It is also different from the general publication of the judgment which, as mentioned, Saunders J decided to leave it to the Court of Appeal for determination and it is also one of the issues raised in a Notice of Appeal.  

13.  As to the reason why the present application of the Petitioner should be heard by the Court of Appeal, the Petitioner submitted that as Saunders J had retired and would not be available for hearing her application in the near future, it would constitute exceptional circumstances rendering it appropriate for the Court of Appeal to hear her application under Order 59 Rule 14(4). She also referred to the Interveners’ criticism of the impartiality of Saunders J in their Notice of Appeal. She cited Ayala International Finance Ltd v Caine Tai investment Co Ltd CACV 111 of 1983, 22 Aug 1983 and Re HY & HT Lee Brothers HCCW 275 of 1998, 23 Nov 2000 in support of her contention.

14.  Section 13(2) is in the following terms,

“(2) The civil jurisdiction of the Court of Appeal shall consist of-

(a) appeals from any judgment or order of the Court of First Instance in any civil cause or matter;

(b) appeals under section 63 of the District Court Ordinance; and

(c) any other jurisdiction conferred on it by any law.”

15.  It should be read together with section 13(4),

“(4) For the purposes of and incidental to-

(a) the hearing and determination of any appeal to the Court of Appeal; and

(b) the amendment, execution and enforcement of any judgment or order made on such an appeal,

the Court of Appeal shall have all the authority and jurisdiction of the court or tribunal from which the appeal was brought.”

16.  These statutory provisions show that the primary jurisdiction of the Court of Appeal is an appellate one though subsidiary to it, for the purposes set out in sub-section (4), the Court of Appeal may have the same authority and jurisdiction of the courts below.   

17.  We do not think section 35(1) takes the matter further.  It reads,

“Subject to subsection (3), in pursuance of the civil jurisdiction of the Court of Appeal, any order or direction not involving the determination of an appeal to the Court of Appeal (including an order or direction giving leave to appeal to the Court of Appeal) may be made or given by a single judge sitting in court or in chambers, and a single judge may likewise make any interim order which he may think fit to prevent prejudice to the claims of any party pending an appeal.”

18.  The power of the single judge must be exercised in pursuance of the civil jurisdiction of the Court of Appeal and that civil jurisdiction is governed by section 13.  Section 35(1) does not confer any additional civil jurisdiction to a single judge which the Court of Appeal as a whole has no jurisdiction to entertain.

19.  The same can be said in respect of Section 34B which deals with the composition of the Court of Appeal. Section 34B(4) spells out matters which can be heard by 2 Justices of Appeal and these include the following matter specified under sub-para (ab),

“hearing or determining any interlocutory application in relation to a cause or matter pending before it;”

20.  But Section 34B(4) must be read together with Section 34B(1) which refers to the Court of Appeal “in the exercise of its civil jurisdiction”. And that takes us back to Section 13.

21.  We do not think Order 59 Rule 14(4) can assist the Petitioner. First, the Rules of the High Court, being subsidiary legislation in nature, cannot confer jurisdiction on this court if such jurisdiction has not been conferred by the primary legislation in the form of Section 13. Second, as Mr Coleman submitted, this particular rule only deals with how one should proceed in cases of concurrent jurisdiction (viz where both the lower court and the Court of Appeal have jurisdiction to deal with the matter). It does not address the question of whether the Court of Appeal has such jurisdiction.

22.  Third, we do not agree that if the Petitioner’s application were to be heard by the court below, it had to be heard by Saunders J. In the present context, the court below means any judge in the Court of First Instance. In this respect, we respectfully disagree with the construction of Order 59 Rule 14(4) in Re HY & HT Lee Brothers HCCW 275 of 1998, 23 Nov 2000. We can envisage circumstances where urgent relief has to be granted in the course of the hearing an appeal that rendered it impossible or impracticable for the matter to be heard by the court below. But the present case does not come anywhere close to that situation.

23.  In her skeleton submissions, the Petitioner cited Baker & Mckenzie v Grande Holdings Ltd CACV 102 of 2011, 14 December 2011 (a case dealing with the power of the Court of Appeal to grant unless order); Bank of China v Twin Profit Ltd CACV 94 of 2010, 18 October 2010 (a case on conditional stay of execution pending appeal); Koon Wing Yee v Insider Dealing Tribunal CACV 358 of 2005, 7 Dec 2006 (a case on a single judge’s power to strike out an appeal); Shiu Wing Steel Ltd v Director of Environmental Protection FACV 28 of 2005, 3 May 2006 (a case on leave to adduce further evidence at the hearing of the appeal); Credit Lyonnais v SK Global Hong Kong Ltd CACV 167 of 2003, 30 July 2003 (a case on stay of execution and it is not about the power of the Court of Appeal exercising any original jurisdiction).    

24.  We do not find any of these cases to be directly relevant for present purposes. In all those cases, the powers exercised by the Court of Appeal were within the scope of Section 13(4).

25.  We cannot say the same in respect of the present application for disclosure. Unlike the “unless order” sought in the Baker & Mckenzie case and the striking out or the stay of execution situations, the order now sought by the Petitioner would not impinge upon the prosecution of appeal. It is not an application for the preservation of the subject matter of the appeal. The outcome of the application would not result in the determination, directly or indirectly, of the appeal. It is not incidental to the hearing or the determination of the appeal.  Nor is it incidental to the enforcement of a judgment or order made by this court.

26.  As regards the publication of the judgment being an issue in the appeal, we have already pinpointed the difference between the present application of the Petitioner and the lifting of the restriction on the general publication of the judgment.  The grant of leave to disclose the judgment for the limited purpose of enforcement of the judgment (which would itself be subject to implied undertaking if not express) would not impinge on the determination of appeal as to the general publication of the judgment.

27.  In essence, the Petitioner’s application is a step in the process of enforcement albeit enforcement outside this jurisdiction.  As in other procedural steps for enforcing a judgment, even though a matter is pending appeal, in cases where no stay of execution has been granted, the party who seeks to enforce a judgment should make application in the courts below instead of coming to the Court of Appeal to seek orders relating to enforcement.

28.  Further, even assuming we have jurisdiction, we do not think this court should exercise such jurisdiction.  As observed in Great Perfect Investment, there is no reason why this court should deprive the other parties of the normal avenues of appeal.  This is not a case where there are exceptional circumstances warranting a departure from the norm.  We do not see any urgency in the matter, at least not such urgent that mandates this court’s exercise of a power which should be exercised by a court of original jurisdiction.

29.  For these reasons, P’s summons was dismissed with costs.

30.  Having reached this conclusion, it is not necessary to make any order on I’s summons regarding the second affidavit.  It has not been read in the course of the hearing and there is no automatic right to inspect the same under Order 63 rule 4.  Actually, none of the affidavits has been read at the hearing. As the determination of the jurisdiction point does not involve the deployment of the affidavits, they have not been used at the hearing. As such, there is no question of them having entered into the public domain by the public nature of this hearing for the purpose of considering any issues relating to the relaxation of the restriction imposed on the Petitioner by her implied undertaking as to documents disclosed below.

31.  We made no order on I’s summons and no order as to costs relating to it.