Y v. K

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1999, No. 1
(Civil)

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J U D G M E N T

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Mortimer V-P (giving the judgment of the Court):

1. Last November Waung J began hearing ancillary relief proceedings between a husband petitioner and his wife. There are cross applications for lump sums, period payments or transfer of property, and an application by the husband to set aside a large number of dispositions by his wife and himself in favour of two trusts. As can be seen from the judgment below, it is a complicated matter in which the judge is invited to unravel an empire of companies and properties.

2. After counsel put their heads together to decide upon the length of the hearing to be requested, it was set down for eight weeks. The case is now continuing. By the time this application was made, it seems only one minor witness had been called out of turn by way of a "dry run" to familiarise the unrepresented husband with the proceedings. He is no longer represented by counsel. He now pleads poverty and he has run out of money.

3. As is the practice, the hearing below was set down in chambers. Usually these ancillary relief matters are heard in chambers in the District Court, but because of the potential amount of money involved, this matter came to the High Court.

4. At the outset, the judge raised with senior counsel on both sides the question whether these ancillary relief proceedings should be heard in public in spite of the long standing practice that they are heard in chambers. Counsel for both parties opposed the suggestion and the matter was left there. However, on 11 December, the husband was no longer represented by counsel. He continued to conduct proceedings in person. On 16 December, no doubt encouraged by the judge's earlier suggestion, he made an application that the hearing should be in open court. Following this, the judge heard the application. It took three days of argument, 16, 17 and 18 December, which were a Thursday, Friday and Saturday. He then gave his judgment on the following Tuesday. This application is properly characterised as satellite proceedings. In other words, they are proceedings which do not and are not intended to resolve the main issues between the parties. The consequence inevitably is that the costs of the action are increased. The final resolution of the real issues is delayed. That is not in any way to suggest that this matter is anything but of great importance.

5. Having considered the matter, the judge decided that the proceedings should continue in public. They should continue, in other words, in open court. The wife appeals against this decision. Hearings of this nature are provided for by r.81 of the Matrimonial Causes Rules. That reads as follows:

"Arrangements for hearing of application etc by a judge

(1) Where an application for ancillary relief or any question arising thereon has been referred or adjourned to a judge, the registrar shall fix a date and time for the hearing or the application or the consideration of the question and give notice thereof to all parties.

(2) The hearing or consideration shall, unless otherwise directed, take place in chambers."

It is subsection (2) which was the subject of the judge's first decision. He decided that that rule was made ultra vires. In other words when the Chief Justice made the rule, or because of statutory changes since, the Chief Justice had no power to make the rule, or because of changes to the relevant Ordinances, the rule no longer has a statutory base. What the judge said about it was this:

"It is accepted at the hearing that no relevant Rules had been made by the Chief Justice pursuant to section 32 of MPPO or more pertinently for the purpose of this judgment, that Rule 81 of the Matrimonial Causes Rules ("MCR") was not made pursuant to Section 32 of MPPO. It follows therefore that so far as the statutory provisions conferring the right of the parties to obtain from the court the relevant financial reliefs arising out of marriage are concerned, namely MPPO, there is nothing which permits the Court to hear the Trial in Chambers let alone which compels or restricts the power of the Court to hear ancillary relief in Chambers."

Finally he said,

"Rule 81 is the key provision which Miss Leong relies on in objecting to the Open Court Trial. Rule 81 of the MCR is in the following terms:-

'(1) Where an application for ancillary relief or any question arising thereon has been referred or adjourned to a judge, the registrar shall fix a date and time for the hearing or the application or the consideration for the question and give notice thereof to all parties.

(2) The hearing or consideration shall unless otherwise directed, take place in chambers."

There is no dispute by Miss Leong that Rule 81 of MCR was created pursuant to section 54 of the MCO. My copy of Issue 12 of MCO in fact at page A6 shows immediately under the heading Matrimonial Causes Rules the words Cap. 179, section 54 indicating that the authority of these MCR are derived from section 54 of MCO. I should also note in passing that section 54A of MCO validating the Matrimonial Causes (Amendment) Rules 1982 (L.N. 324 of 1982) which provided that the particular amended Rules are deemed to be also made pursuant to section 32 of the MPPO in addition to section 54 of MCO made it even more clear that Rule 81 was made not pursuant to MPPO rule making power as page B827-8 of LN325/82 indicates that Rule 81 of MCR was not one of the rules in MCR purported to be amended in 1982.

From the above analysis, I conclude therefore that there is nothing in either MPPO or MCO which provides or compels or restricts the High Court to hear this Trial in Chambers. In fact having regard to the provisions of section 32A of the High Court Ordinance, the Court prima facie is directed to hold the hearing in Open Court.

6. In my judgment on this, the judge was wrong. Rule 81 was originally made under powers given to the Chief Justice in s.54 of the Matrimonial Causes Ordinance (Cap. 179). That Ordinance dealt, among other things, with ancillary relief. Later, the Matrimonial Proceedings and Property Ordinance (Cap. 192) was passed. This dealt with ancillary relief and replaced the provisions of the earlier Matrimonial Property Ordinance dealing with ancillary relief which were repealed. There remains, however, in s.32 of the Matrimonial Proceedings and Property Ordinance the power for the Chief Justice to make rules of court "for the better carrying out of the purposes and provisions of this Ordinance". The effect of the rules was preserved by s.28(1)(a) of the Interpretation and General Clauses (Cap. 1) which provides:

"(1) Where an Ordinance confers power on a person to make subsidiary legislation, the following provisions shall have effect with reference to the subsidiary legislation -

(a) when any subsidiary legislation purports to be made in exercise of a particular power or powers, it shall be deemed also to be made in exercise of all other powers that enable its making;"

So when the judge decided that r81 was ultra vires, in my judgment, he was wrong. But there is a further matter to which the judge made reference, that is the provisions of s.32A of the High Court Ordinance (Cap. 4) which provides:

"Proceedings in court and in chambers

Business in the Court of First Instance shall be heard and disposed of in court except insofar as it may, under this or any other enactment or in accordance with the practice of the Court, be dealt with in chambers."

On that matter, it is important to note the words "in accordance with the practice of the Court".

7. There is no doubt that in ancillary proceedings for at least a century the practice of the court has been to hear ancillary relief matters in chambers. Although the judge took the view that section requires these proceedings prima facie to be held in open court, in my judgment, he was wrong.

8. However, the judge did not entirely base his decision on that view of the law. He also turned to exercise the discretion which he unquestionably has to order the ancillary proceedings to be heard in open court under r.81(2).

9. Mr Paul Shieh, who appears on this appeal for the appellant, submits that the judge's exercise of his discretion was plainly wrong. He takes three points. The first relates to article 10 of the Bill of Rights Ordinance (Cap. 383) which makes provision for the hearing of cases in public. He also submits that the judge relied upon article 10 although in the course of submissions, he had specifically said that he would not. He decided the point therefore, Mr Shieh submits, without hearing argument.

10. For my part, I would not decide the appeal on this ground though it seems to me that two matters could have been argued successfully in front of the judge. The first being that as appeals from decisions in chambers in ancillary relief matters are heard in open court that the right of appeal is curative. Secondly, there is clear exception to article 10 in which applies to this type of proceeding. I would hold that article 10 does not assist the judge in his decision.

11. Turning to Mr Shieh's second point, he submits that some of the matters which the judge took into account in exercising his discretion were either irrelevant, neutral, or militated against the way in which he exercised his discretion. It is not necessary to set all of these matters out. There were 19 separate points that he made. It suffices to say that I accept Mr Shieh's categorisation. For example, the judge stated that this is a trial in the High Court and not in the District Court where the bulk of ancillary relief applications are heard. That seems to me to be quite irrelevant to the question whether the hearing should be in open court or in chambers. He said further that:

"This was not a case falling into the secrecy category."

That also is true but not relevant. Another point he makes is that

"This is a case where the Petitioner in person will have to cross-examine his five grown up children in addition to his former Wife."

That seems to me to militate strongly in favour of a hearing in chambers for reasons which I will turn to in a moment.

12. The judge's decision was in these terms - having set out the matters argued by Miss Leong for the wife:

"She ...urged me to take heavily into account that this is really only a family matter, that it is unprecedented for ancillary relief to be heard in Open Court, that the evidence will deal with many intensely personal and private issues such as Petitioner's black market activities in China, the parties' humble start in Hong Kong, the gambling activities of the parties, the adultery of the Petitioner and the incident with Filipina maid, the allegations of forgery, the question of tax evasion and tax investigation, matters relating to the Trusts and allegations against third parties in connection with the Trust and many other factors which should point to the wisdom of holding the Trial in Chambers. I of course take into account what Miss Leong said in favour of Chambers hearing and against Open Court. But I do not believe it is right that I should ignore all the other factors which I had listed earlier."

Finally, he said:

"With the greatest respect to Miss Leong, it seems to me that she and Mr. Rodway both live in a different world where the coziness of matrimonial practice can be cocooned forever and the mystery of the matrimonial business of the court is shielded totally from public view. (Difficulty of access to Hong Kong matrimonial judgments is one of the reasons I understand of the long delay in the publication of the Hong Kong Halsbury Volume on Family Law). This is not the world of Jacob, J. or of Lord Woolf or of the High Court business that I know and I regret that I am not sympathetic to her vision of how matrimonial ancillary relief disputes should be resolved. In my judgment, the matrimonial jurisdiction of Hong Kong has lived far too long in a world which is not in accordance with the fundamental principle of open and public justice and it is time for major changes to take place."

In the terms used, the judge was moving far beyond the particular case which he had before him. So far his reliance upon the factors which he took into account and which he rejected, it is my judgment that in rejecting the matters advanced by Miss Leong, the judge was plainly wrong. In rejecting the court's practice and in deciding to exercise his power under r.81(2) to order a trial in open court in this case, he was plainly wrong. There were no features of it sufficiently relevant and unusual upon which he could rely.

13. The judge relied also upon passages in Lord Woolf's judgment in Hodgson v Imperial Tobacco Ltd [1998]1 WLR 1056 at 1071C:

"... 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. Sometimes the solution may be to allow one representative of the press to attend. Another solution may be to give judgment in open court so that the judge is not only able to announce the order which he is making, but is also able to give an account of the proceedings in chambers. The decision as to what to do in any particular situation to provide information for the public will be for the discretion of the judge conducting the hearing. As long as he bears in mind the importance of the principle that justice should be administered in a manner which is as open as is practical in the particular circumstances, higher courts will not interfere with the judge's decision unless there is good reason for doing so."

14. One always begins with the principle rooted in history that proceedings in court in principle should be heard in public. No one would ever gainsay that fundamental principle. Sometimes, however, justice requires that hearing should be in private. As Lord Woolf said in an earlier passage in the same judgment at 1070H:

"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."

Lord Woolf there touched on some of the matters. But in his judgment in that case, ancillary relief applications following matrimonial proceedings were not, either in his mind or mentioned. It was a case concerning the tobacco industry, a matter of vital interest to the public, in which a body of litigants were seeking to bring proceedings. It would be quite wrong to follow the general principles laid down there to suggest that the longstanding practice in ancillary matrimonial proceedings should for that reason be heard in public.

15. The reasons are perhaps obvious. The matters dealt with in ancillary relief proceedings are private, family matters. They are not usually of any public interest. The personal relationships between the parties and the family, their personal relationships with others, and their financial matters are more effectively dealt with in chambers. When dealing with such matters parties may become inhibited in dealing with them properly if not dealt with in chambers.

16. In my judgment, the judge was plainly wrong. I would allow this appeal.

Godfrey JA:

I agree.

Rogers JA:

I only wish to add a few words to what has already been said with which I agree.

17. The Matrimonial Causes Rules were initially dated 1st April 1972, that predates the Matrimonial Proceedings and Property Ordinance (the "MPPO"), Cap. 192. Those provisions of the Matrimonial Causes Ordinance, Cap. 179 which related to ancillary relief were almost entirely replaced by the MPPO when that was brought into existence. Turning to the Matrimonial Causes Rules, the part of those which is headed "Ancillary Relief", commences at Rule 68 and concludes at Rule 84. Rule 68 provides for the method of claiming ancillary relief. Rule 68(1) lists 7 of the 9 forms of ancillary relief which are referred to in the Definition rule, Rule 2 of the Rules and the remaining methods are dealt with in Sub-Rule (2) and Sub-Rule (3). It is manifestly clear that those Rules must have been made under the provisions of the MPPO and under that authority. The Rules which follow Rule 68 all deal with the mode in which the claims for ancillary relief are dealt with. It is in that context that Rule 81, to which reference has already been made, appears. To my mind, there can be no doubt, therefore, that Rule 81 must also derive its authority from the MPPO.

18. Equally important is section 32A of the High Court Ordinance which provides the exception that the business in the Court of First Instance may be dealt with in Chambers if that is in accordance with the practice of the Court.

19. Volume 2 of the White Book at p.1661 under reference 20A-450 contains the following with reference to those final words which appear in Section 67 of the Supreme Court Act 1981 which is the equivalent section to Section 32A :-

"The practice of the Court

This expression, as used in this section, is a new statutory term and it seems to be equated with Rules of Court as a source of civil procedural law. It recognises the old common law maxim that 'the practice of the Court is the law of the Court, on the basis that the later Court will follow the practice applied by earlier Courts."

20. Not only has the practice of the Court been, that applications for ancillary relief should be heard in Chambers but there are obviously clearly good reasons for it. The applications concern intensely personal matters which the parties can be expected to be reticent to have aired in public.

21. In the passage from Sir Jack Jacob's Hamlyn Lecture, The Fabric of English Civil Justice which is cited in the case of Hodgson v. Imperial Tobacco, reference is there made, for example, to hearings before the Commissioners of Inland Revenue relating to tax affairs and such like matters as being those which might be expected not to be heard in public. The reasoning which would apply to dictate that those proceedings should be in Chambers would similarly apply in the present case.

22. In my view, the need for the applications for ancillary relief to be heard in Chambers far outweigh any of the other considerations which have been aired and have been put to us by the Petitioner. The factors which the Petitioner has put before us to-day do not show that there is any public interest in having the parties private affairs ventilated in public. Justice is far more likely to be achieved if the proceedings are in Chambers.

23. I too would allow this appeal.

Mortimer V-P:

There is an application for costs. There is no reason that we can see why the losing party to these satellite proceedings should not be ordered to pay the costs. We say no more about the matter, save that such costs of these proceedings should not be taxed until the end of the proceedings for ancillary relief.

24. We express the hope that those proceedings will come to an end long before the estimate that counsel now has given us that they will take most of 1999. That would be a very unfortunate situation indeed. We would urge all parties concerned to concentrate their minds in seeking to resolve the issues in these proceedings long before the end of 1999. This case was set down for eight weeks. That must have been a proper and careful estimate of counsel on both sides.