XCHRX AXA CHINA REGION INSURANCE CO. LTD. AND ANOTHER v. LI YU PING, ELLEN

HCA 9975/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 9975 OF 2000

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R U L I N G

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1. This is an application by the Plaintiffs for leave to publish my order of 27 December 2000 made after an inter partes hearing in Chambers in which I granted an interlocutory injunction against the Defendant, a former agent of the Plaintiffs, restraining the disclosure and use by her of documents allegedly belonging to the Plaintiffs relating to present or former policy holders of the Plaintiffs, together with consequential orders concerning delivery up of documents and disclosure.

2. The application is made to me under the terms of Practice Direction 25.1 which states that:

"No report should be made of any proceedings (including the judgment) held in Chambers (which are private proceedings) without the authority of the master or the judge before whom the proceedings were conducted. If the master or the judge considers that the report of the judgment should be released for publication he should afford the parties an opportunity to make representations to him upon the matter before so declaring."

3. A significant feature of this case is that if the Plaintiffs had proceeded to publish the order without seeking my authority to do so, section 5 of the Judicial Proceedings (Regulation of Reports) Ordinance, Cap.287 provides that such publication would not of itself have amounted to a contempt of court.

4. The Plaintiffs' primary position is that in the light of the terms of section 5 of the Judicial Proceedings (Regulation of Reports) Ordinance, Cap.287, there is no legal requirement for leave to publish an order of the court delivered in chambers. They say that they bring this application purely as a courtesy to the court because of the terms of the Practice Direction. They contend that they do not have to make out a case for the granting of leave and that the relevant principles are laid down in recent cases in England (in particular Forbes v. Smith [1998] 1 All ER 973, Hodgson v. Imperial Tobacco [1998] 1 WLR 1057 and Trustor AB v. Smallbone & Others [2000] 1 All ER 811).

5. In the alternative, they argue that even if it is necessary for them to be granted leave then the issue for the court is whether there is any reason why leave should not be granted. It is for the Defendant to establish that there is such a reason and the court should still apply the principles laid down in the cases to which I have referred.

6. Mr Bell for the Defendant argues that there is a divergence between the practice in Hong Kong and that in England. In contrast to England, Judges in Hong Kong habitually use their court rooms as Chambers. Unlike England, there is therefore ample room to accommodate members of the public but they are forbidden access. Judgments and rulings given in Chambers are not put into the High Court Library as a matter of course. The divergence of practice is exemplified by the Practice Direction. Mr Bell argues that the practice described by Harman J over 40 years ago in Alliance and Perpetual Building Society v. Belrum Investments Ltd [1957] 1 WLR 720 in the following terms (though now disapproved of in England) still applies in Hong Kong "interlocutory matters proceed in private; the public has no right to attend them nor has anyone, as I conceive, any right to give any account of them while the action is pending and has not been adjourned into court". Mr Bell contends that in Hong Kong the burden lies upon the party seeking publication to justify why there should be a departure from the ordinary principle of privacy regarding matters in Chambers.

7. If Mr Bell's argument is correct, it leads to the curious position that whereas the hearing and ruling or judgment of a judge or master in Chambers would normally be secret any proceedings before the Court of Appeal in relation to the same ruling or judgment would be public.

8. Having heard argument I am satisfied that the principles applicable are based on Common Law and, subject only to Practice Direction 25.1, are the same in Hong Kong as in England.

9. The fact that in a Chambers hearing a judge or master sits in private does not of itself mean that the proceedings are secret. Courts sit in chambers or in open court generally merely as a matter of administrative convenience (see Jacob J in Forbes v. Smith [1998] 1 All ER 974). As Lord Woolf MR said in Hodgson v. Imperial Tobacco Ltd [1998] 1 WLR 1056:

"Hearings in private in chambers already make an important contribution to the administration of justice. They allow issues to be determined informally and expeditiously. They allow less strict rules as to representation to apply. They allow matters to be discussed which the parties might not wish to discuss in open court. They encourage openness. They are less intimidating to litigants which is particularly important in the case of the small claims jurisdiction. With the movement which is now taking place in relation to case management chambers hearings are likely in the future to make a greater contribution to the administration of justice than they do already."

10. He went on to say this:

"... it remains a principle of the greatest importance that, unless there are compelling reasons for doing otherwise, which will not exist in the generality of cases, there should be public access to hearings in chambers and information available as to what occurred at such hearings. The fact that the public do not have the same right to attend hearings in chambers as those in open court and there can be in addition practical difficulties in arranging physical access does not mean that such access as is practical should not be granted. Depending on the nature of the request reasonable arrangements will normally be able to be made by a judge (of course we use this term to include masters) to ensure that the fact that the hearing takes place in chambers does not materially interfere with the right of the public, including the media, to know and observe what happens in chambers."

11. Later he summarised the position in the following words:

"In relation to hearings in chambers the position may be summarised as follows. (1) The public has no right to attend hearings in chambers because of the nature of the work transacted in chambers and because of the physical restrictions on the room available but, if requested, permission should be granted to attend when and to the extent that this is practical. (2) What happens during the proceedings in chambers is not confidential or secret and information about what occurs in chambers and the judgment or order pronounced can, and in the case of any judgment or order should, be made available to the public when requested. (3) If members of the public who seek to attend cannot be accommodated, the judge should consider adjourning the proceedings in whole or in part into open court to the extent that this is practical or allowing one or more representatives of the press to attend the hearing in chambers. (4) To disclose what occurs in chambers does not constitute a breach of confidence or amount to contempt as long as any comment which is made does not substantially prejudice the administration of justice. (5) The position summarised above does not apply to the exceptional situations identified in section 12(1) of the Act of 1960 or where the court, with the power to do so, orders otherwise."

12. Section 12 of the Administration of Justice Act 1960 is in similar terms to section 5 of the Judicial Proceedings (Regulation of Reports) Ordinance, Cap.287.

13. It is therefore unnecessary to go beyond the principles of Common Law to ascertain the principle that is applicable, though section 5 of the Judicial Proceedings (Regulation of Reports) Ordinance, Cap.287 and Article 10 of Hong Kong Bill of Rights Ordinance, Cap.383 support that principle.

14. The position therefore is that except in the five circumstances set out in section 5(1) or in other circumstances where the court so orders the publication of information relating to proceedings in Chambers including the order of the court, may be made public subject only to the requirements of Practice Direction 25.1.

15. It must always be borne in mind that Practice Directions are simply rules of practice issued under the inherent power of the court to regulate its own process in order to ensure the efficient expeditious and economical despatch of the court's business. Practice Direction 25.1 should not be construed as affecting the right of public access to hearings in chambers and information as to what occurred at such hearings except insofar as that is necessary to ensure the efficient expeditious and economical despatch of the court's business.

16. The Practice Direction requires the authority of the judge or master before a report is made of proceedings held in chambers. In my view, the function of the Practice Direction must be construed as simply requiring that the judge or master should have an opportunity before publication to consider, after hearing representation from the parties, whether exceptional circumstances have arisen which would justify him prohibiting the publication of a report of proceedings in chambers.

17. The requirement of the Practice Direction to seek the authority of the judge or master before publication does not affect the principles which should guide the judge or master.

18. It is only in exceptional cases where public knowledge of the proceedings is likely to defeat the paramount object of the court which is to do justice in accordance with the law that the court would be justified in preventing publication of proceedings in chambers including the order of the court.

19. As Rimer J said in Trustor AB v. Smallbone & Others [2000] 1 All ER 811:

"The guiding principle is whether a secret hearing and judgment are necessary in order to do justice in the particular case."

20. Given the guiding principle to which I have referred, it must be for the party opposing publication (in this case the Defendant) to satisfy the court that the proper administration of justice requires a bar on the publication of my order (see Rimer J in Trustor AB v. Smallbone [2000] 1 All ER 811, 821 at C). If that party fails to do so and there is no apparent reason for ordering otherwise then the court is bound to authorise publication.

21. That does not mean that the intentions of the party seeking authority to publish are necessarily irrelevant if it can be shown that the publication that person intends may frustrate the attainment of justice. Mr Hok Man Choy in his third affirmation has put forward reasons why, if it is necessary for him to do so, he would justify publication in this case. It is not necessary for me to comment on these factors as there is nothing to suggest that publication in the manner proposed by the Plaintiff would prejudice the attainment of justice in this case. Even Mr Bell was obliged to concede that publication in the manner suggested by Mr Hok Man Choy would not prejudice the trial of the action. The most he could suggest is that publication might affect the minds of potential jurors if there was to be a future prosecution of the defendant in the High Court. I am satisfied that that would be no more prejudicial than publication of the writ or indeed of a report of the civil trial.

22. The Defendant alleges that disclosure of my order would cause serious prejudice to her. She argues that she has a genuine defence to the Plaintiffs' claim and that publication would affect her reputation and career and also the morale of her subordinates in the company for whom she is now working.

23. I am satisfied that the reasons advanced by the Defendant are not such as to show that the attainment of justice might be frustrated and are insufficient to outweigh the public interest in enabling members of the public to see that justice is properly administrated by the court.

24. In Scott v. Scott [1913] AC 417, Lord Atkinson said:

"The hearing of a case in public may be, and often is, no doubt, painful, humiliating or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to be found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect."

25. In Trustor AB v. Smallbone [2000] 1 All ER 811 Rimer J said that it was not the function of the court to protect the litigant before it from embarrassment or from the risk that his or her conduct might be brought to the attention of prosecuting authorities.

26. I accordingly order that the Plaintiffs be authorised to disclose the order of this Court made in Chambers on 27 December 2000. At the request of the Defendant, I order that that disclosure shall not occur until after the time limited for appeal of this order has expired or, if a notice of appeal is filed, until the determination, abandonment or dismissal of such an appeal. I would observe that the Plaintiffs' undertaking in damages although not expressly part of the written order, is as much part of that order as the other recitals at the commencement of the order.

27. I make the following order as to costs that unless either party gives notice that they wish to be heard on the question of costs within 14 days, the costs of this application be taxed and paid by the Defendant.