H v. W

FCMC 8332/2017

[2022] HKFC 212

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 8332 OF 2017

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J U D G M E N T
( Extempore Decision on Leave to Provide Documents to Third Party )

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A.   INTRODUCTION

1.  W says she found out from the child of the family on January 9^th 2022 that H had previously touched her inappropriately in or around March 2020. A police report was filed about the same on 12 April 2022. 

2.  The Police has since started investigating the alleged incident. H has been arrested, cautioned, but not charged. The Police had scheduled an interview with H for August 2022, but that interview has been postponed pending the outcome of this hearing.

3.  This is H’s application for leave to provide copies of the following documents to the Police Department and the Department of Justice (“H’s Documents”), to assist their investigation:

3.1.  A Memo on Access Arrangement by Dr. JB dated 15 March 2018;

3.2.  The Social Welfare Reports dated 8 November 2019 and 22 June 2020, and the updated Social Welfare Report dated 7 April 2022;

3.3.  Ms. LL’s (“L”) psychological reports dated 15 November 2019 and 22 June 2020, as well as its addendum dated 24 July 2020;

3.4.  A Psychological Report prepared by the Social Welfare Department dated 16 March 2022;

3.5.  A transcript of the CDR hearing held on 21 April 2022 (“Transcript”); and

3.6.  H’s 26th Affirmation.

4.  W initially objected to leave being granted for each of these items, primarily because she was of the view that they would not assist the Police in its investigation, especially since (in her view) they have been cherry picked.

5.  However, after H disclosed in his 32^nd Affirmation that the Police, in a letter dated 29 July 2022, says H’s Documents would be relevant to its investigation; W amended her position, agreeing to leave being granted for those documents, and also asking for leave to provide the Police Department and the Department of Justice the following additional documents: (“W’s Documents”), in order to give them a fuller picture:

5.1.  The Court’s transcript for the relocation trial (“Relocation Transcript”);

5.2.  HHJ Melloy’s Judgment for the Relocation Trial (“Relocation Judgment”);

5.3.  HKPS’ letter dated 26 April 2022, which states that L has prima facie breached a number of Codes of Professional Conduct (“HKPS Letter”); and

5.4.  W’s 31^st Affirmation.

6.  I have decided to give this judgment on an ex-tempore basis, as there is urgency to the matter. The allegations against H are serious, and the Police understandably wants to proceed with its investigation expeditiously.

B.   LEGAL PRINCIPLES

7.  The Family Court has power to control access to documents within its custody. The exercise of this power is subject to a balancing exercise in terms of weighing the relevant conflicting interests and rights, bearing in mind the overall demands of justice: MRS. A by LPCR her next friend v The Executors of the Estate of A [2018] HKFC 196 §§8-10 per Deputy District Judge D. Cheung.

8.  In that regard, leave should be granted to a person to provide court documents to third parties to facilitate criminal investigations, unless there are good countervailing reasons not to: Secretary for Justice v FTCW at §§16, 114-116 per Lam VP (as he then was).

C.   DISCUSSION

C1.  H’s Documents

9.  As mentioned, W now agrees to H having leave to provide H’s Documents to the Police Department and the Department of Justice.  As such, I will give H leave accordingly, save that to avoid unnecessarily overwhelming the Police Department:

9.1.  For H’s 26^th Affirmation, I will give leave for the affirmation but not for the exhibits thereto (“H’s Exhibits”);

9.2.  For the Transcript, I will only give leave for pages 22 to 44, which covers the discussion concerning the reported incident.

10.  If the Police Department asks for H’s Exhibits and a full copy of the Transcript, H can come back to this court and seek leave for them.

C2.  W’s Documents

11.  As mentioned, W asks to give the Police Department and the Department of Justice a full picture. On that basis, she asks for leave to provide them the Relocation Transcript, Relocation Judgment, HKPS Letter, and her 31^st Affirmation.

12.  I agree with W’s submission in principle. With a view to not overwhelming the Police Department:

12.1.  I grant W leave for the Relocation Judgment. I will also additionally give the Parties leave for the Court of Appeal’s judgment on the relocation [2021] HKCA 733;

12.2.  I grant W leave for her 31^st Affirmation, but not for the exhibits thereto;

12.3.  HKPS’ letter dated 26 April 2022 is not a Court document, and W can provide it to the Police Department and the Department of Justice without leave from this Court;

13.  In my view, the three sets of documents above documents are sufficient to give the Police Department and the Department of Justice a full picture. As such, I will not additionally grant W leave to provide them with the Relocation Trial’s Transcript.  On this latter point, I specifically do not wish to inundate the Police with the transcript of a 6 day trial.

14.  W has further asked that the Order made on 28 June 2022 be made available, I am not of the view that this is relevant, and will therefore not grant leave for this.

15.  If the Police asks for the Relocation Trial’s Transcript or the exhibits to W’s 31^st Affirmation specifically, W can come back to this court and seek leave for them.

16.  The Police should also receive a copy of this Judgement.

D.   COSTS

17.  H asks for costs of his application, which has been successful.

18.  While W initially objected to H’s application, to be fair to her, the Police letter stating H’s Documents are relevant to its investigations was only made available to her after she filed her affirmation in opposition to the H’s Summons, and she has taken the first available opportunity to amend her position to a more reasonable ask.

19.  I therefore make no order as to cost for his application.