HUANG HSIN YANG v. BANK OF CHINA (HONG KONG) LTD

CACV 186/2007 & CACV 219/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 186 AND 219 OF 2007

(ON APPEAL FROM HCSD NO. 3 OF 2005)

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DECISION

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1.  This is Mr Huang, the applicant’s application for leave to appeal to the Court of Final Appeal.  It is said that the question involved in the appeal is one which by reason of its great general or public importance or otherwise ought to be submitted to the Court of Final Appeal for decision.

2.  On 17 August 2007, we ordered that the hearing of the application by the applicant that the Deputy Judge L Chan should recuse himself should be open to the public.  There is no appeal from that decision.

3.  The recusal application has been heard.  The hearing was open to the public.  The learned judge has reserved his decision.

4.  However, we also decided on 17 August 2007 that the applicant’s appeal against the learned judge’s refusal to grant leave to publish transcripts should be dismissed.  That decision is the subject of the present application.  The transcripts were the transcripts of the applicant’s application to set aside the statutory demand issued by the respondent which, I may add, was issued as long ago as 24 May 2004.

5.  We were told by counsel then appearing for the applicant that the applicant intended to provide the transcripts to the media so that they could report on the proceedings.

6.  Hearing of an application to set aside a statutory demand falls within Schedule 2 of Practice Direction 25.1, and as such they would normally not be open to the public.  The reason for that is obvious.  Publicity that a statutory demand has been issued may severely damage a person’s reputation or credit.

7.  As we have said in our judgment of 17 August 2007, the court has nevertheless a discretion to allow the hearing to be open to the public.

8.  However, normally, if the hearing was not open to the public, that would be a good reason why the transcript of the hearing should not be available to the public.  However, whether the transcript should be made available to the public after a decision has been rendered in the application to set aside the statutory demand would depend on the circumstances.

9.  In the present case, the respondent had submitted that they might have or had disclosed confidential information in the proceedings to set aside the statutory demand on the understanding that those proceedings would not be open to the public.  That may be a relevant consideration if and when the court comes to decide whether or not the transcripts should be made public, and if so, how much of the transcripts should be made public.

10.  However, this is what we said in our judgment regarding the transcripts.  In paras. 32 to 34 of our judgement, we said:

“	32.	The applicant appeared to be willing not to publish the transcript until after the recusal proceedings have been concluded.  So there is no urgency in the matter.
	33.	Pending the final disposition of the application to set aside the statutory demand and since we have not been supplied with the transcripts nor adequate submission by counsel, I am not satisfied that on the material before us the learned Deputy Judge’s exercise of discretion was wrong.
	34.	Whether any future application should be granted must depend on the circumstances.”

11.  As can be seen, our decision was not a decision which involved any determination of any question of great general or public importance.  Even though the circumstances under which transcripts of proceedings which were not open to the public should be made available to the public may involve questions of great general or public importance and that, in a suitable case, should be submitted to the Court of Final Appeal for decision, this is not such a case.

12.  The application for leave to appeal to the Court of Final Appeal is dismissed with costs.

Hon Le Pichon JA:

13.  I agree.

Hon Tang VP:

14.  The application for leave to appeal as well as the Motion of CACV 186/2007 are dismissed with costs.