TCWF v. LKKS

CACV 154/2012 &
CACV 166/2012

(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS 154 and 166 OF 2012

(ON APPEAL FROM HCMC NO 5 OF 2008)

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REASONS FOR JUDGMENT

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Hon Lam JA (giving the Reasons for Judgment of the Court):

1.   In this judgment, we shall refer to the parties as the wife, the husband and the father.  The two appeals against the orders of Saunders J on 1 December 2011 and 6 July 2012[1], CACV 154 of 2012 being an appeal by the father and CACV 166 of 2012 being an appeal by the husband, shall be heard together in October 2013.  We have two summonses before us:

(a)                 A summons dated 11 June 2013 by the husband seeking the hearing of the appeal to be conducted in chambers (not open to the public).  He also seeks directions as regards indices and content of the appeal bundles; and

(b)                A summons dated 25 June 2013 by the father seeking some parts of the appeal to be conducted in chambers (not open to the public).  The summons identified the parts which should be so heard as follows:

“(i) §§25-139 of the judgment of the Honourable Mr Justice Saunders in HCMC 5/2008 dated 1 December 2011 as reissued on 6 July 2012 (the “Main Judgment”);

(ii) §§55-103 of the Reasons for Decision the Honourable Mr Justice Saunders in HCMC 5/2008 dated 6 July 2012 (the “Barrell Judgment”); and

(iii) §§145-161, §§163-174, §§175-193, §§194-197, §§198-199, §§200-235, §§256-289 and §§336-348 of the Main Judgment, which the Honourable Mr Justice Saunders considered to be commercially confidential information (the “Commercially Confidential Information”); and

(iv) the disputed documents as defined in the judgment of the Honourable Mr Justice Ng in HCMP 188/2012 dated 14 May 2013 (the “Disputed Documents”)”

2.   We did not see any need to read in public the contents of the documents or the controversial parts of the judgments of Saunders J for the purpose of the arguments before us and, despite Mr Thomas SC’s and Ms Cheng’s submissions, we see no good reason why these summonses should not be heard in open court.  The mere fact that this was not the hearing of the substantive appeal does not justify a hearing in camera.  As has been emphasized in the past, there is a strong public interest in open administration of justice and if a hearing is to be conducted in camera, the public has a right to know why it is so.  As such, the public has an interest in following the debate in an application for hearing in camera and the court should only exclude members of the public from it when it is necessary to do so in circumstances where conducting such hearing in open court would defeat the purpose of the application. Since we were not satisfied that it would be necessary to read the contents of the controversial materials in dealing with the summonses, and we were confident that counsel would exercise good judgment in that regard, we directed that the summonses be heard in open court.   

3.   For reasons given below, after hearing all the submissions, we came to the conclusion that the appeals shall be heard in open court. We now give reasons for coming to such conclusion.   

4.   The orders of the Judge were made in respect of ancillary relief proceedings in HCMC 5 of 2008.  The order of 1 December 2011 was the order providing for the substantive relief granted to the wife.  The order of 6 July 2012 was made pursuant to what the parties called the Barrell Judgment.  In the appeals, the husband and the father seek the following orders as set out in their respective notices of appeal,

(a) In CACV 154, the father seeks:

“1. An order that the Appellants should have leave to appeal the judgment and order, if such leave is required.

2. That the judgments of Mr Justice Saunders shall remain private.

3. A stay on the order pending the appeal.

4. That the Judgement and Order should be set aside and this Court do substitute that Order with its own Order and/or order a retrial before a Judge other than Deputy Judge Saunders.”

(b) In CACV 166, the husband seeks:

“1. The appeal be allowed.

1A. The award to the Petitioner (“the Wife”) be set aside, and the matter be remitted to the Court of First Instance for re-trial.

2. The award to the Wife of HK$1,470.4 million be set aside, and an award in the sum as is apt be made in its place.

3. The orders made consequential upon that award of HK$1,470.4 million be set aside, and new consequential orders as are apt for the correct award be made in their place.

4. The referral of the Judgment and the Supplemental Judgment to the DPP be revoked.

5. The Judgment and the Supplemental Judgment shall remain private and not be published.

6. The Wife pay the Husband’s costs of the Appeal, with no order as to the costs below.”

5.   To understand the bases for the applications to have the appeals conducted in camera, it is necessary to refer to some findings by the Judge in his judgment of 1 December 2012.  As explained below, the fact that the judgments below had not been published cannot prevent this court from referring to it in a judgment handed down in open court. We shall briefly refer to those findings below.  Before we do that, we need to set out some backgrounds.

6.   Unlike other first instance hearings of ancillary relief, the ancillary relief proceedings in the present case were, though heard in chambers, also open to public.  There had been an action by the father suing the wife for fraud, first by way of an action in England, and then in Hong Kong in HCA 566 of 2010.  That action was directed to be tried together with the wife’s s 17 application in HCMC 5 of 2008 to set aside what is called the “2006 CLA”.  On 17 September 2010, the Judge directed that such trial would be conducted in open court.  As regards the other parts of the ancillary relief proceedings, the Judge directed that they would be heard in chambers, open to the public.  The Judge explained why he took such unusual course in his Reasons for Ruling of 27 September 2011.  Further background and reasons can be found in the Judge’s Ruling on 17 September 2010.  Those reasons set out why the case called for hearing to be conducted openly.  Whilst the reasons were given in chambers (not open to public), we are of the view there is no good justification now for withholding these from the public.  We asked the parties whether there were any reasons why these reasons should not be made public. There was none.  We would append these two documents (with the names of the parties anonymized in the usual manner) to this judgment and they would be handed down as part of this judgment, as such they would enter into the public domain as a judgment handed down in open court.

7.   The trial of HCA 566 of 2010 and the s 17 application was scheduled to take place on 23 February 2011.  When the matters came on for trial, what happened was described by the Judge at para 7 in a summary of his main judgment in HCMC 5 of 2008 which he had released to the public on 1 December 2011:

“7. The wife’s s 17 application, the father’s fraud proceedings and the wife’s conspiracy counterclaim came on for trial before the Judge in February 2011.  The husband and  the father consented to the setting aside of the dispositions.  The father discontinued the fraud claim, and the husband and the father consented to judgment against them in the wife’s conspiracy counterclaim, with the assessment of damages reserved to be tried later.  The husband and the father agreed to pay the wife’s costs in respect of all those proceedings, on an indemnity basis.”

8.   Notwithstanding that, submissions on the 2006 CLA were advanced in the ancillary relief when the proceedings were heard in October and November 2011.  At that hearing, which was open to the public (apart from the part dealing with other matters), allegations of serious nature were advanced in respect of the 2006 CLA.  In the judgment of 1 December 2011, the Judge made findings against the husband and the father in respect of the 2006 CLA, which was summarized at para 9:

“9. The court held that, judged on the civil standard of proof, that is on the balance of probabilities, the husband and the father had forged the 2006 CLA, which they had then used to attempt to defeat the wife’s claim in ancillary relief. The court further held that the husband and the father were likely to have committed perjury in numerous affidavits in relation to the 2006 CLA, in the proceedings.  The court held that the husband and the father were persons whose evidence was not capable of belief.”

9.   The Judge also directed the Registrar to forward a copy of the judgment of 1 December 2011 to the Director of Public Prosecutions for such action as he considers appropriate.

10.  The proceedings, including the allegations and finding by the Judge in respect of the 2006 CLA, were widely reported in local newspapers.  Thus, these allegations and finding had already entered into the public domain.

11.  In the appeals, one of the main issues is whether the Judge was correct to make such finding. In his Amended Notice of Appeal, the father alleged that the Judge was biased and that he was misled by the Judge in respect of the relevance of the allegations pertaining to the 2006 CLA. He said he had not been given a fair opportunity to defend himself with regard to those allegations. Similar criticisms are advanced by the husband in his Amended Notice of Appeal.  It is also contended that the Judge should not have referred the case to the Director of Public Prosecutions.

12.  There are other issues raised in the appeals. For present purposes, it suffices to note that the consideration of some issues will involve the consideration of documents concerning the business of the father and the husband which they regarded as confidential, and would not have been disclosed but for the purposes of the ancillary relief proceedings.

13.  The Barrell Judgment of 6 July 2012 was the Reasons for Decision in respect of a number of post-judgment applications brought before the Judge.  The hearing, which took place on 5 to 7 June 2012, was not open to the public.  The Judge explained why that hearing took place in private at paras 3 to 9 of the Barrell Judgment.  Because the hearing took place in private, the Barrell Judgment was not released for public circulation. The reason why the Judge held the hearing in private and withheld the publication of the Barrell Judgment was (apart from the protection of commercial confidentiality) the preservation of the rights of the husband and the father in respect of the extent of redaction.    

14.  We understand that a copy of the Barrell Judgment had been given to the Director of Public Prosecutions.

15.  The Barrell Judgment dealt with, amongst other things, whether the judgment of 1 December 2011 should be published and if so, whether there should be any redaction and the extent of redaction.  The Judge concluded that the judgment should be published but there would be redaction in certain respects.  At paras 119 to 122 of the Barrell Judgment, the Judge said,

“119. In §510 of the judgment I set out the paragraphs which I considered might appropriately be redacted prior to publication of the judgment, to protect the matters which were heard in private to protect commercial confidentiality.  I remain of the view that those are the appropriate paragraphs that should be redacted.

120. The husband and the father sought the redaction of the paragraphs in relation to the finding as to forgery and their credibility. They seek that redaction because they say that the publication of those paragraphs would impact upon any criminal trial that might subsequently take place following the referral of the judgment to the DPP.

121. Those portions of the trial relating to the attack on their credibility were heard in public.  The judgment makes it clear that the findings are on the balance of probabilities only.  The executive summary published following the handing down of the judgment set out the fact of the findings of forgery, the basis on which the findings were made and the fact of the reference to the DPP.

122. The matter already being in the public arena, I am satisfied that there will be no adverse impact on any subsequent trial.  The question of any prior publicity can be dealt with in the usual way by the trial judge by appropriate direction to a jury.  Should the matter go to a District Judge for trial by judge alone I have no doubt at all that such a judge would be perfectly capable of putting out of his mind any findings made by me on the balance of probabilities.

16.   These should be read together with paras 508 to 510 of the main judgment:

“508. Pursuant to an order made by me prior to the commencement of hearing, the trial was held in public, save that certain portions of the evidence and submissions were closed to the public in order to protect the husband and father in respect of certain matters of commercial confidentiality.  It follows, the trial having been in public, that the judgment must be published.  I have endeavoured to structure the judgment in a way that it could be published, but I have found it simply impossible to draw the judgment in such a way that there should be no redaction.

509. In the supplementary submissions filed following the conclusion of the oral hearing Mr Howard pressed for the entire judgment to be made public but acknowledged that there was a question as to whether certain passages should be “exempted”.  Mr Pointer said that the evidence concerning the business structure and management, property valuations, and tax was heard in private.  I accept that in respect of those matters that were heard in private, it would be proper to redact from public application paragraphs referring to those matters.

510. I have reviewed the judgment and, on a preliminary basis, consider that the following passages could be redacted prior to publication: §§145-161, “The Framework Agreement”; §§163-174, “The Husband’s right to repay the balance of the gift”; §§175-193, “Has or can the father exercise his rights under the Framework Agreement”; §§194-197, “The Aoyama Project”; §§198-199 “The real issue in respect of the Framework Agreement”; §§200-235, “Would the father exercise his rights against the husband”; §§256-289, “The Japanese property”; and §§336-348, “The taxation issues”.”

17.   We do think it is remotely arguable that our references to these paragraphs of the main and Barrell judgments would in any way prejudice any party over the issues that we have to decide in the appeals.

18.   After the referral to the Director of Public Prosecutions was made, the Secretary for Justice applied to the court for the release of some documents [“the Disputed Documents”] which are in the court file for the purpose of criminal investigation by the Hong Kong Police.  There was also an application by the wife for leave to disclose such documents to the Secretary for Justice and the Hong Kong Police and to be released from her implied undertaking as to confidentiality in HCMC 5 of 2008 for the purpose of discussing those documents with them.  The applications were heard by Ng J in HCMP 188 of 2012 in February 2013 and judgment was delivered on 14 May 2013.  The hearing was conducted in chambers (not open to the public) and the judgment was not released to the public.  Ng J granted the applications of the Secretary for Justice and the wife.

19.   The husband and the father appealed against the judgment of Ng J in CACV 101 and 107 of 2013.  They applied for stay of execution of the order of Ng J. The application was heard on 19 June 2013 and this court (Lam JA and Barma JA), after hearing the parties, decided to conduct the hearing in camera. The reasons for such decision were set out in the Reasons for Ruling handed down on 21 June 2013.  The Reasons were not released to the public.  The main reason was to preserve the position pending the determination by the Court of Appeal in the context of CACV 154 and 166 of 2012 on the extent of publication of the judgments in HCMC 5 of 2008. It was made clear in that judgment that such question may be considered at this hearing (viz. 16 July 2013 in CACV 154 and 166 of 2012) and nothing said in that judgment would pre-empt this court’s determination of the two summonses before us. It was also made clear that the court did not accept the other grounds put forward on behalf of the father and the husband for holding the hearing in camera.

20.   The court granted a stay of execution in respect of the order of Ng J, the reasons for such decision were set out in a judgment handed down on 5 July 2013.  That judgment was not released to the public.

21.   The substantive appeals against the order of Ng J will be heard on 29 and 30 October 2013.  There are applications for those appeals to be heard in camera, which were considered by us in the afternoon of 16 July after we had heard the present applications.  For reasons set out in another judgment to be handed down on the same date as this judgment, we decided that that appeal should also be heard in open court.

Some general principles

22.   As recently stated by the Chief Judge in ATV v Communications Authority [2013] 2 HKLRD 354 at para 19:

“… Open administration of justice is a fundamental principle of common law … It is of great importance, from the perspective of administration of justice, for a number of reasons.  The public nature of proceedings deters inappropriate behaviour on the part of the court.  It also maintains the public’s confidence in the administration of justice … It makes uninformed and inaccurate comment about proceedings less likely.”

23.   At para 23, His Lordship also set out matters which do not by themselves justify any restriction on open administration of justice:

(1)             Publicity of litigation leading to embarrassment and inconvenience;

(2)             Publicity leading to economic damage, even very severe economic damage;

(3)             Professional embarrassment and possible damage to professional reputation;

(4)             The parties’ agreement that the proceedings be held in private; and

(5)             The mere fact that the subject proceedings which gave rise to a judicial review application were held in private.

24.   To that list, one can add this: in respect of cases heard in the Court of Appeal, the mere fact that the proceedings at first instance were heard in private.  This has special significance for matrimonial appeals, in particular appeals in relation to ancillary relief.  The usual practice in Hong Kong is that ancillary relief proceedings are to be heard in chambers (not open to public).  Similar practice in England was held to be compliant with the right of public hearing under the article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, see B v United Kingdom (2001) 34 EHRR 529.

25.   However, when an appeal against a first instance judgment on ancillary relief is brought to the Court of Appeal, as in England (see Clayton v Clayton [2006] Fam 83 at para 28) it is invariably heard by our Court of Appeal in open court.  There are several reasons for such distinction.   First, arguments in an appeal should be more focused and only submissions related to the grounds of appeal will be entertained. Even in an appeal on facts, the Court of Appeal is not to assume the role of a first instance judge to revisit every aspect of the evidence.  The question for the Court of Appeal is whether the primary judge was plainly wrong in his assessment of the evidence: whether because he misunderstood some evidence or failed to have regard to some material evidence or otherwise.  Skeleton submissions are placed before the court beforehand and judges would have read them before the hearing.  It is rarely necessary to have the evidence or documents read in extenso in open court.  The court usually exercises firm control over needless reading of materials which were already fully canvassed in skeleton submissions.  In an appeal on laws, the public has an interest in following a debate on the legal issues decided by the Court of Appeal, which will be a binding precedent on lower courts.

26.  Second, as submitted by Mr Howard QC on behalf of the wife, from the point of view of maintaining public confidence in the administration of justice, the public has an interest in following the appellate process in order to understand why a primary judge’s decision is upheld or reversed.  This is particularly so when, as in the present case, it is contended that the judge was prejudiced or biased and did not give a fair opportunity to some parties to present their case.  One of the reasons why justice should be administered openly, as mentioned by the Chief Judge, is the public interest in deterring improper judicial behaviour.  It is not conducive to the maintenance of public confidence in the judicial process if appeals based on serious allegations of judicial impropriety are heard in camera.  The judge, as much as the aggrieved parties, has a right to open and public vindication of his professional reputation. As a matter of convention, it is not appropriate for judges to make any extra-judicial statements to defend their decisions or refute allegations against their professional integrity advanced by a dis-satisfied litigant.  An open hearing in the Court of Appeal is an important safeguard to facilitate the correction of any unfair and inaccurate allegations against a judge as a matter of public record.  At the same time, if the complaints were found to be valid, a public vindication in open court provides the complainants with the best redress in terms of the clearing of the imputations cast against them by the errors in first instance judgments.  To the question quis custodiet ipsos custodes – who will guard the guards themselves – the answer must lie in the transparency of the legal process, and “open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse.”  (R (Guardian News & Media Ltd) v Westminster Magistrates’ Court [2012] 3 WLR 1343 at para 1)

27.  Third, and it may be a point related to the second, the judicial process, even if it is held in the first instance in private, is still very much the exercise of the power of the judicial arm of the government. Whilst the judiciary is independent from the other arms of the government, the exercise of judicial power is a public act.  Unlike other modes of resolution of dispute by private process (like arbitration or mediation), the determination of a dispute by the court is coercive in the sense that it is enforceable by the public power of the government.  A judgment derived its authority not from the agreement of the parties to submit a dispute for the court’s adjudication. Its authority stems from the judicial authority of the government.  Hence, the public has an interest in the proper administration of justice which transcends the private interests of the parties in the dispute.  An appeal, even in the matrimonial context, invariably examines the correctness of a first instance judgment and it is an important element in our rule of law for such process to be conducted openly.                

28.  We do not suggest that all appeals have to be heard in open court.  We only try to explain why there are good reasons for an appeal to be heard in open court even though the case was heard in chambers (not open to the public) at the first instance.  As explained in ATV v Communications Authority, supra., in an application for a hearing to be conducted in camera, the court needs to balance the various rights and interests involved.

29.  It also follows that the mere fact the first instance judgment is not published would not prevent the Court of Appeal from referring to it in its judgment which would be handed down in open court.  Thus, we have referred to some parts of the judgments of Saunders J and appended his Ruling of 17 September 2010 and Reasons for Ruling of 27 September 2011 to this judgment as we consider it is important to set out those matters in this judgment.

30.  At this juncture, it is useful to identify different aspects of open justice which, although related, may involve different balances being struck.  First, open justice implies members of the public (including the public media)  would have access to the hearing. Second, members of the public may seek access to the documents filed and used at the hearing but not expressly read out at the hearing.  Third, members of the public may report or publish information on what actually happened at the hearing. Fourth, the judgment of the court is published generally without any redaction.  Fifth, open justice also means that the names of the parties would be made known to the public without any anonymity.

31.  The curtailment of one aspect of open justice does not necessarily dictate the curtailment of another aspect. The most obvious example is that the grant of an anonymity order (restricting the disclosure of the identity of a party) in children or torture claimant cases will not dictate that the proceedings shall be heard in camera.  Take another example, the court may grant an injunction to restrict the reporting of a certain part of the proceedings without excluding members of the public from attending the same.  Actually, in the application of the test in Re S (A Child)(Identification : Restrictions on Publication) [2005] 1 AC 593, the court must consider whether the balance is to be struck by less draconian measures and very often the legitimate interest of the parties for privacy can be adequately served by an anonymity order.

32.  In the matrimonial context, the practice in Hong Kong is that even though an appeal is heard in open court, the names of the parties are anonymized in the daily cause list and the judgment of the court.  This is particularly so in children cases.  This gives some protection to the privacy of the parties. However, unless the court grants a specific injunction, it is not against the law to publish the names of such parties if their identities were known. This is the position even if the proceedings take place in private, see Sections 3 and 5 of the Judicial Proceedings (Regulation of reports) Ordinance, Cap 287[2].

33.  Even in the context of the same aspect of open justice, the court may exercise its power differently with regard to different parts of the proceedings.  Thus, as recognized by Mr Thomas (appearing for the father) and Ms Cheng (appearing for the husband), the court may order certain parts of the appeal to be heard in open court and the other parts to be heard in camera.

34.  In the present context, it is important to recognize that the exercise of control over the extent to which a judgment should be made available to the public cannot dictate whether the appeal is to be heard in open court or in camera.  The court can deal with a particular aspect of the case by granting an injunction with regard to the dissemination of information to the general public without excluding members of the public or at least members of the public media from attending the hearing, see Re S [2005] 1 AC 593; Clayton v Clayton [2006] Fam 83; Spencer v Spencer [2009] 2 FLR 1416; Huang Hsin Yang v Bank of China CACV 186 of 2007, 17 Aug 2007, para 25.

35.  Moreover, the judgment may contain detailed information which is taken from documents or other materials placed before the court without being read at the open court hearing. There could be redaction of that part of the judgment and the court may properly decline any request for access to such documents or materials even though the hearing was conducted in open court, see Guardian News v City of Westminster [2012] 3 All ER 551.

36.  As mentioned, different balances may be struck with regard to different aspects of open justice being subject to restrictions when other competing fundamental rights are engaged.  Restrictions on access to court hearing and the judgment of the court are more inimical to the open administration of justice than restrictions on identification of the parties and the freedom to publish such information though the latter could still be important in the exercise of the freedom of expression. 

37.  Thus, in most cases where the court deems it necessary to give some protection to the rights of the parties in curtailing the open nature of court proceedings, it would be sufficient for such purposes to grant anonymity order and to restrict the publication of some highly sensitive information.  Even in that connection, the court would have regard to what had been said by the Chief Judge in ATV v Communications Authority, supra. at para 23.

38.  Section 5(1) of the Judicial Proceedings (Regulation of Reports) Ordinance identifies 5 categories of cases where generally the balance would be struck in favour of prohibiting publication,

(a)                 Proceedings relate to wardship, adoption, guardianship, custody, maintenance or upbringing of an infant, or access to an infant;

(b)                Proceedings under some parts of the Mental Health Ordinance Cap 136;

(c)                 Proceedings in private for reasons of national security;

(d)                Proceedings concerning secret process, discovery or invention; and

(e)                 Where the court, having power to do so, expressly prohibits the publication of all or particular information relating to the proceedings.

39.  As it is clear from Section 5(1)(e), the list is not exhaustive. Also, even in those categories of cases, the court may grant leave for information related to the proceedings to be published and if such leave is granted, it would not be contempt to publish, see Section 5(3).  A recent example can be found in the English case of Doncaster Metropolitan Borough Council v Haigh [2011] 3 FCR 397.

40.  The power of the court to restrict publication of information pertaining to hearings which are open to the public is well established.  In Re S, supra., para 23, Lord Steyn said:

“The House unanimously takes the view that since the 1998 Act came into force in October 2000, the earlier case law about the existence and scope of inherent jurisdiction need not be considered in this case or in similar cases.  The foundation of the jurisdiction to restrain publicity in a case such as the present is now derived from convention rights under the ECHR.  This is the simple and direct way to approach such cases.  In this case the jurisdiction is not in doubt.  This is not to say that the case law on the inherent jurisdiction of the High Court is wholly irrelevant.  On the contrary, it may remain of some interest in regard to the ultimate balancing exercise to be carried out under the ECHR provisions.  My noble and learned friend Lord Bingham of Cornhill invited the response of counsel to this approach.  Both expressed agreement with it.  I would affirm this approach.  Before passing on I would observe on a historical note that a study of the case law revealed that the approach adopted in the past under the inherent jurisdiction was remarkably similar to that to be adopted under the ECHR.  Indeed the ECHR provisions were often cited even before it became part of our law in October 2000.   Nevertheless, it will in future be necessary, if earlier case law is cited, to bear in mind the new methodology required by the ECHR as explained in Campbell v MGN Ltd [2004] 2 AC 457.”

41.  In the Hong Kong context, the power to restrain publicity is derived from the rights under the Hong Kong Bill of Rights.

42.  In the context of matrimonial proceedings, there has been substantial revision of the practice in England in terms of access to hearing.  Even though hearings at first instance are still conducted in chambers, representatives of the public media and relatives of the parties are now usually permitted to attend, see Practice Direction: Attendance of Media Representatives at hearings in Family Proceedings, 20 April 2009 [2009] 2 FLR 157 and President’s Guidance [2009] 2 FLR 167. 

43.  Whilst we have not introduced similar practice in Hong Kong, the significance of the English practice is to demonstrate that even in the context of matrimonial proceedings, parties’ right to family life, reputation and privacy do not dictate secrecy in such proceedings.  The modern trend is to recognize the importance of open justice in family proceedings.  More circumspection is applied in proceedings relating to children: see D v D [2009] 2 FLR 324; Spencer v Spencer [2009] 2 FLR 1416; Re Child X [2009] 2 FLR 1467.  It should also be noted even in children matters, when a case is heard in the Court of Appeal, it is usually heard in open court though protection is given by anonymizing any references to the parties and the names of the children.  

44.  Mr Howard referred us to the very recent English Court of Appeal decision in Global Torch Ltd v Apex Global Management Ltd [2013] EWCA Civ 819, 10 July 2013.   Though it is not a matrimonial case, the judgment of Maurice Kay VP is illuminating in terms of the analysis as to how the fundamental right to open justice should be balanced against other rights and how the test in Re S [2005] 1 AC 593 should be applied. We would come back to this authority when we discuss the father’s submissions on the prejudice that an open court hearing may cause to him in view of the very serious findings made against him which he said to be unfair.

45.  At para 22 of that judgment, His Lordship made reference to several paragraphs in the Guidance given by Lord Neuberger MR in a Practice Guidance (Interim Non-disclosure Orders) [2012] 1 WLR 1003 dealing with the proper approach to the general principle of open justice regarding any application for interim injunctive relief to restrain the publication of information in a variety of situations.  Paragraphs 10 to 14 of that Guidance state:

“10. Derogations from the general principle can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice.  They are wholly exceptional: R v Chief Registrar of Friendly Societies, ex parte New Cross Building Society [1984] Q.B. 227 at 235; Donald v Ntuli [2011] 1 WLR 294 at [52] – [53]. Derogations should, where justified, be no more than strictly necessary to achieve their purpose.

11. The grant of derogations is not a question of discretion. It is a matter of obligation and the court is under a duty to either grant the derogation or refuse it when it has applied the relevant test: AMM v HXW [2010] EWHC 2457 (QB) at [34].

12. There is no general exception to open justice where privacy or confidentiality is in issue.  Applications will only be heard in private if and to the extent that the court is satisfied that by nothing short of the exclusion of the public can justice be done. Exclusions must be no more than the minimum strictly necessary to ensure justice is done and parties are expected to consider before applying for such an exclusion whether something short of exclusion can meet their concerns, as will normally be the case: Ambrosiadou v Coward [2011] EWCA Civ 409 at [50] – [54]. Anonymity will only be granted where it is strictly necessary, and then only to that extent.

13. The burden of establishing any derogation from the general principle lies on the person seeking it.  It must be established by clear and cogent evidence: Scott v Scott [1913] AC 417 at 438 – 439, 463 and 477; Lord Browne of Madingley v Associated Newspapers Ltd [2008] 1 QB 103 at [2] – [3]; Secretary of State for Home Department v AP (No2) [2010] 1 WLR 1652 at [7]; Gray v UVW [2010] EWHC 2367 at [6] – [8]; and JIH v News Group Newspapers [2011] EWCA Civ 42 (JIH) at [21].

14. When considering the imposition of any derogation from open justice, the court will have regard to the respective and sometimes competing Convention rights of the parties as well as the general public interest in open justice and in the public reporting of court proceedings.  It will also adopt procedures which seek to ensure that any ultimate vindication of Article 8 of the Convention, where that is engaged, is not undermined by the way in which the court has processed an interim application. On the other hand, the principle of open justice requires that any restrictions are the least that can be imposed consistent with the protection to which the party relying on their Article 8 Convention right is entitled. The proper approach is set out in JIH.”

46.  With great respect, we take the view that the law set out in those paragraphs stated succinctly the fundamental principles which are equally applicable in Hong Kong.       

Any bases for seeking hearing in camera in the present case?

47.  The present appeals do not relate to any issue with regard to children. The husband relied on two grounds to seek an order that the appeal be heard in camera.  At para 7 of the skeleton submissions of Mr Coleman SC[3], the two grounds were stated as follows:

(a)              Commercial confidentiality and sensitivities; and

(b)             The deployment of material which, if the appeal is to be heard in public, would render the appeal nugatory.

48.  He also referred to the risk of pre-empting the outcome in respect of the appeal as to the publication of the judgments of Saunders J and the need to read certain documents at the appeal which, according to the husband, should not be admissible or were not properly before Saunders J.   Counsel also referred to the prejudice that an open hearing of the appeal may cause to the husband if there were to be criminal proceedings against him in the future.

49.  The father essentially relied on the same grounds though Mr Thomas advanced his submissions on his behalf with greater elaborations. After referring to the alleged errors of Saunders J in coming to his findings regarding the 2006 CLA, counsel highlighted the need to refer extensively to the judgments of Saunders J and the Disputed Documents at the hearing of the appeal.  Mr Thomas submitted that this would release the details of the “improper findings” of Saunders J into the public arena and members of the public would be entitled to discuss and publish details of those issues.  That would frustrate the appeal in respect of the publication of the judgments.

50.  In respect of the commercial confidentiality, Mr Thomas relied on Saunders J’s decision to redact the relevant paragraphs from the judgment to be published.  He contended that there is no legitimate public interest in the details of the commercially confidential material and it is proportionate and appropriate to order those aspects of the appeal to be heard in camera.

51.  In the course of hearing, it was observed that there is no evidence to explain to this court how the matters concerned are regarded as commercially confidential.  Mr Thomas referred us to the submissions advanced before Saunders J when application was made for part of the hearing to be conducted in private.

52.  Mr Thomas also contended that the reference of the Disputed Documents in open court will release the wife from her implied undertaking and the Secretary for Justice and the Director of Public Prosecutions would then have access to the Disputed Documents.  Counsel identified several categories of documents under the Disputed Documents which would inevitably be referred to and considered at the hearing of these appeals.  In that way, the conduct of these appeals in open court, Mr Thomas submitted, would also frustrate the appeals against the order of Ng J.  It would also circumvent the stay pending appeal granted by the Court of Appeal in those appeals.  In that connection, counsel referred to the irreversible effect of the release of such information to the Director of Public Prosecutions in terms of their contents leading on a chain of enquiry.

53.  Mr Thomas was at pains to emphasize that it is not contended by the father or the husband that simply because the findings against them were serious and they challenge such findings, the appeals should be heard in camera.  Needless to say, such an argument is plainly wrong. There is nothing more serious than a finding of guilt in criminal proceedings and invariably appeals against convictions are heard in open court.  In Global Torch Ltd v Apex Global Management Ltd [2013] EWCA Civ 819, the English Court of Appeal accepted that the reference to allegations of grave misconduct in open court is likely to cause reputational damage to the person subjected to such allegations if such allegations were eventually held to be ill-founded.  But that would not be sufficient to persuade the court to conduct hearing in camera. As observed by Maurice Kay VP at para 28:

“The judicial process will determine whether and to what extent [the allegations] are established. Public airing of the allegations may embarrass one side or the other. It often does, but that is not in itself a good reason to close the doors of the court.”

54.  In the present context, we are not dealing with allegations raised by a party.  We are dealing with findings made by a judge after trial. And the summary of such findings has already been published. Whilst the father and the husband enjoy rights to be protected from unlawful attacks on their reputation under Article 14 of the Hong Kong Bill of Rights, we do not think that rights could, in the present case, outweigh the other fundamental rights involved: the right of the wife to have a public hearing under Article 10 in the vindication of her name in respect of the father’s allegations of fraud against her on which he relied in his grounds of appeal, the public interest in open justice under Article 10 and the right of the public and the media in freedom of expression under Article 16.  As submitted by Mr Howard, the finding against the father and the husband has already entered into the public domain through the conduct of that part of hearing in open court and the publication of the summary of the Judge. Whether the appeals are to be heard in open court or in camera would not generate much difference in terms of additional interference with their Article 14 rights.  Insofar as the attacked finding or judgments are referred to at the hearing, members of the public in Hong Kong are intelligent enough to appreciate that there are submissions advanced in an appeal which challenged the same.  The best redress for them is to have the appeals heard in open court in order to have a public vindication of their reputation if Saunders J were wrong in coming to his findings. In this connection, it is pertinent to have regard to para 27 of the judgment of Maurice Kay VP in Global Torch, supra.:

“I should add that Lord Steyn’s reference to an ‘intense focus’ does not mean that every time a litigant waves an Article 8 flag in support of an application for a private hearing there will have to be a protracted and expensive hearing to determine the issue. Often, indeed usually, experience suggests that the application can be determined very quickly. It also shows that, in most cases falling outside the area of recognized exceptional circumstances … the open justice principle will prevail.”

55.  Instead of simply relying on Article 14, Mr Thomas submitted that the present case is different because Saunders J had violated the father’s fundamental right of presumed innocence under Article 11, his right to a fair trial and his right to be tried by an impartial tribunal under Article 10.  These are indeed matters that have to be debated in the appeals.  But as happened in many cases, these could be debated in open court.  However, counsel contended that because those rights are at stake, this court should strive to protect them and if the appeals are heard in open court, we would be perpetuating the infringement of such rights.  He submitted the distinction between our case and the situation in Global Torch is that there had been a complete failure of law and due process in our case whilst the parties in Global Torch would have a fair trial. Ms Cheng adopted those submissions on behalf of the husband.

56.  With respect, we are not persuaded by these submissions. We do not understand how it can be suggested that there is a continued infringement of these fundamental rights simply because the question whether there had been due process before Saunders J made those findings is to be debated in open court.  The purpose of the public debate in open court is to facilitate the adjudication by this court on the regularity of the proceedings before Saunders J.  Until the determination of the appeals, the findings by Saunders J and his judgments had to be regarded as findings and judgments under appeal. Nothing more. Thus, it is illogical to suggest that the reference to those findings and judgments in open court in the course of submissions is the perpetuation of infringement of these fundamental rights of the father.   In his submissions, Mr Thomas agreed that the judgment of this court can be published. If that were so, we fail to understand why the hearing itself should be conducted in secret.   

57.  As regards the arguments based on commercial confidentiality, we do not discern any suggestion that the commercial transactions in question were of such a nature that the revelation in public would be akin to the revelation of a secret process which the court proceedings sought to protect. Notwithstanding what was said in the submissions by Mr Pointer QC on behalf of the husband before Saunders J, we are not satisfied that such confidentiality can outweigh the public interest in having the appeal heard in open court.  As accepted by Mr Thomas, his skeleton submissions for the appeals (which had been lodged) did not raise any point regarding any matters which falls within that part of the case which was heard in private.    

58.  As said above, we agree with Lord Neuberger that generally confidentiality and privacy are not grounds for ordering hearing in camera.  The documents which are said to be confidential are not that different from other commercial documents which the courts have to consider in open court when dispute arose out of a commercial transaction.  For the purpose of the balancing exercise, assuming that the right of privacy under Article 14 is engaged, we do not see any distinction in principle between a claim of commercial confidentiality in a commercial action and a similar claim advanced in the context of ancillary relief in matrimonial proceedings.  Neither is there any difference between such a plea advanced by a modest proprietor of a small enterprise and that advanced by wealthy businessman in control of a large business empire.

59.  In this respect, it is of no avail that Saunders J had been prepared to redact his judgment for publication by excluding the references to these documents.  As we have explained, for good reasons, our Court of Appeal usually sits in open court even though proceedings below are heard in private and the judgment below is not published.

60.  As observed by Viscount Haldane LC in Scott v Scott [1913] AC 417 at p.439:

“A mere desire to consider feelings of delicacy or to exclude from publicity the details which it would be desirable not to publish is not, I repeat, enough as the law now stands.  I think that to justify an order for hearing in camera it must be shown that the paramount object of securing that justice is done would really be rendered doubtful of attainment if the order were not made.”

61.  Putting the analysis in terms of the test of Lord Steyn in Re S [2005] 1 AC 593 at para 17, though the court should recognize that the right to privacy under Article 14 may be interfered with if the appeals are heard in open court, given the background of this case and the publicity already given to matter in terms of materials already in the public domain, and the way in which arguments are likely to be advanced in the appeals with limited references to sensitive documents, this is clearly a case where the father’s and the husband’s right of privacy cannot outweigh the public interest in open justice.  The consequential interference with their Article 14 rights is justified and proportionate.

62.  That leaves the father and the husband with the arguments based on frustration of the purpose of appeals and the frustration of the appeals against the order of Ng J.  In respect of the matrimonial appeals, we do not accept for one moment that the appeals against the findings of Saunders J on the 2006 CLA would be rendered nugatory if they are heard in open court.  As explained, the public vindication of the challenges to such findings by the father and the husband is the best and fairest means to correct any wrong findings at the court below.

63.  If one examines the contentions of Mr Thomas and Mr Coleman carefully, putting aside the other submissions which we have dealt with above, their arguments on frustration of the purpose of these appeals are founded upon one and only one aspect of the appeals: the appeals against the decision to publish the judgment and the extent of redaction. And they seized upon what was said by this court in the Reasons for Ruling of 21 June 2013 at para 10 in the stay application in the appeals against the order of Ng J.  The crux of the argument is that once the judgments have been read in open court, the court cannot control its dissemination.

64.  However, what was said at para 10 of that Reasons for Ruling must be read together with paras 4 and 11.  It is plain that the court there was anxious to preserve the position pending the proper consideration of the matter at this hearing of 16 July in the context of the matrimonial appeals.  In hearing that stay application, the court has no jurisdiction to deal with the matrimonial appeals and that division was understandably concerned about not having all the relevant considerations before it and as such decided to take a more cautious approach.

65.  We are not so handicapped and we also have the benefit of further research on the relevant authorities as to the court’s power to grant injunction with regard to the information revealed in an open court hearing.  As stated above, the court does have the power to grant injunction to such effect.  Thus, the extent of publication of the judgments should not dictate whether these appeals should be heard in open court.

66.  Moreover, there is an element of circularity in the argument. The appeal against the decision to publish the judgment and the extent of redaction, as far as we can see, is very much consequential to the challenge to Saunders J’s finding on the 2006 CLA.  In that sense, it can be described as parasitic and it cannot have a life of its own.  Once it is appreciated that the substantive challenge to the findings cannot justify the appeals being heard in camera, to hold that the consequential challenge to the publication and redaction of the judgments could have that effect is unsustainable.  Thus, as properly accepted by Ms Cheng, the appeals regarding publication of the judgment and the extent of redaction cannot be an independent ground for seeking a hearing in camera.  

67.  In short, we do not think the appeals would be rendered nugatory by being conducted in open court. Thus, we do not see how the appeals should be required to be heard in camera in the interest of justice.

68.  Turning next to the arguments with regard to the frustration of the appeals against the order of Ng J.  Once we have reached the conclusion that there is no good reason in the matrimonial appeals themselves to warrant the hearing to be conducted in camera, we do not regard the appeals against the order of Ng J could lead us to a contrary conclusion.  The short answer to the arguments of Mr Thomas and Mr Coleman is that our prior conclusion on the matrimonial appeals per se implies that the public has a right to attend those hearings.  The Director of Public Prosecutions or his representatives or agents are entitled to attend those hearings as much as other members of the public.  Subject to any specific order made by the court to restrain dissemination of information at such hearings, they are at liberty to make whatever use they deem fit in respect of what they learn from those hearings. That would be the position had there been no application by the Secretary for Justice for disclosure of the Disputed Documents from the court.  Why should there be any difference simply because Ng J had made an order for disclosure and the father and the husband had exercised their right of appeal against such order?

69.  The appeals against the order of Ng J (and the stay granted in those appeals) cannot have the effect of preventing the Director of Public Prosecutions, or the police, from taking other legitimate steps to investigate the allegations pertaining to the 2006 CLA.  Attending the hearing of the matrimonial appeals, like making enquiries with other persons who might have relevant information on the matter, is a legitimate means to gather more information. Perhaps it is an alternative means to achieve similar objectives as the application before Ng J.  But it does not follow that by permitting this legitimate means to be pursued, the court is frustrating the purpose of the appeals against the order of Ng J.

70.  In any event, we do not believe the information that can be gathered at the open court hearing of the matrimonial appeals would be on a par with the execution of the orders of Ng J.   We do not believe there is any need to read all the Disputed Documents extensively at the hearing. Further, the concern about the wife being released from her implied undertaking is adequately addressed by her offer in her summons of 13 June 2013 as modified at footnote 35 of the skeleton submissions of Mr Howard.  At the hearing, at our invitation, the wife reduced her undertaking into writing as follows:

“Notwithstanding that documents may have been read and/or referred to, and to the extent that they are read and/or referred to, in open court and/or read in advance by the court from 21^st to 25^th October 2013 and from 29^th to 30^th October 2013 at the hearing of the appeals in CACV 154 and 166 of 2012 and CACV 101 and 107 of 2013 before the Honourable Madam Justice Kwan, the Honourable Mr. Justice Lam and the Honourable Mr. Justice Lam and the Honourable Mr. Justice Barma, JJA (“Hearing”), Tsang Chiu Wing Florence undertakes to the Court that such documents remain subject to any implied undertaking binding on her that applied to such documents immediately prior to the Hearing until both Judgments on the Appeals have been handed down to the parties and subject to such judgements.

This undertaking is irrevocable until a contrary order of this court.”

71.  There were some disagreements about the efficacy of the undertakings by reason of its wordings.  As we understand, at the end, Mr Howard was happy to accept that the undertaking should be extended to the time when our orders in disposing of the appeals were sealed.  In our view, her undertaking in such modified form should be sufficient. 

72.  As regards the argument based on chain of enquiry, once it is accepted it is legitimate for the Director to gather information by being present at an open court hearing, there is nothing wrong for him to embark on any further investigation based on such information.

73.  Mr Thomas relied on R v K [2010] QB 343.  We do not think that authority has much bearing on the questions we have to decide. Whether this court should conduct the appeals in open court is a separate question from whether information obtained under compulsion can be used for the purpose of criminal prosecution.  We are not dealing with the latter question.  It is important that these two questions should not be confused. Otherwise, all civil appeals involving allegations of fraud or forgery or the giving of false evidence would have to be heard in camera.

74.  For these reasons, we do not consider that in the interest of justice the appeals should be heard in camera and we accordingly dismissed the applications of the father and the husband.

75.  Before we conclude, we would echo the observations of Maurice Kay VP at para 34 of his judgment in Global Torch, ibid, and modify it in the present context as follows : [If the approach of the husband and the father can prevail in the present case], “it could equally be applied to countless commercial and other cases in which allegations of serious misconduct are made.  That would result in a significant erosion of the open justice principle.  It cannot be justified where adequate protection exists in the form of vindication of the innocent through [the appeal process].”

Appendix

[1]   By the time when he made the order on 6 July 2012, Saunders J had retired and heard the matter as a Deputy High Court Judge. In this judgment, we shall refer to the learned judge as the Judge.

[2]   See also Clibbery v Allan [2002] Fam 261 paras 19 and 51

[3]   The skeleton submissions was signed by Mr Coleman, Mr Jeremy Chan and Ms Bonnie Cheng.  At the hearing, Mr Coleman and Mr Chan were unavailable until the afternoon and before they arrived, the husband was represented  by Ms Cheng only.