X v. Y

HCA 2023/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2023 OF 2014

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Introduction

1. I have before me a summons taken out by the plaintiff on 13 October 2014 (“the Summons”) for continuation of the ex parte injunction order granted by Fung J on 12 October 2014 (“the Ex Parte Order”).

2. By a consent summons signed by the solicitors for the plaintiff and the defendant acting in person dated 15 October 2014, the parties are agreed that paragraphs 3 to 8 of the Ex Parte Order be continued until the final determination of the proceedings herein or further order of the court.

3. On 15 October 2014, I informed the parties that I was prepared to make an order in terms of the consent summons save that I was not prepared to make an order that paragraph 7 of the Ex Parte Order be continued in its present form by way of consent order.  I also indicated that the plaintiff was at liberty to pursue paragraph 7 of the Ex Parte Order at the inter partes hearing of the Summons today if the plaintiff so wished.

4. Paragraph 7 of the Ex Parte Order states as follows:

“Save with the leave of the Court to be granted only after an inter partes hearing held in camera in chambers (not open to the public):-

(1) all further hearings in the Proceedings be held in chambers or court not open to the public;

(2) the court file in relation to the Proceedings be sealed and not be available for inspection by any third party;

(3) the Proceedings be referred to and identified in the daily cause list issued by the Registry of the High Court by its action number and not by reference to the names of the parties, who shall be referred to as X as the Plaintiff and Y as the Defendant.”

5. I pause to add that by paragraphs 1 and 2 of the Ex Parte Order, the plaintiff was permitted to issue the proceedings herein with the plaintiff being named as “X” and the defendant as “Y” in the writ, and the “Proceedings” is defined to mean the present action.

6. In this decision, I shall consider whether it is appropriate to make, effectively, a blanket order that all further proceedings herein be held in chambers or court not open to the public.

Background facts

7. For reasons which will become apparent later in this decision, it is neither necessary, nor appropriate, for me to set out the facts leading to the present application in any great detail.  I need, however, to give a very brief outline of the background in order to explain the decision.

8. The plaintiff is a well known person in Hong Kong.  According to his affirmation, he met the defendant in around January 2012 and soon afterwards developed an intimate relationship with the defendant for a period of some months up to about August 2012.  The plaintiff said that although he had some acts of intimacy with the defendant during his dates with her, he never had any sexual intercourse with the defendant.  In the course of that relationship, some photographs of the plaintiff (in some of which the defendant also appeared) were taken privately at restaurants.  Gifts were occasionally exchanged between them. Apparently, the plaintiff once issued a cheque for the amount of $300,000 to the defendant, but it was never presented by the defendant for payment.  The plaintiff also said that he took the initiative to end the relationship with the defendant in around August 2012.

9. Since October 2014, the plaintiff started to receive many messages from the defendant through “Whatsapp”, which threatened to disclose her relationship with the plaintiff as well as the aforesaid photographs and cheque (“the Alleged Confidential and Private Information”) to the defendant’s family members, unless the plaintiff acceded to the defendant’s demand which the plaintiff considered to be unreasonable and without foundation.

10. After taking legal advice, the plaintiff applied to the court for an ex parte injunction against the defendant to restrain her from disclosing the Alleged Confidential and Private Information to any third party.  As mentioned above, on 12 October 2012, Fung J granted the Ex Parte Order, which expressly enjoined the defendant not to use or disclose to any third party or otherwise exploit the following information without the plaintiff’s knowledge and consent, namely:

(1) information regarding the existence of the past intimate relationship between the plaintiff and the defendant; and

(2) details relating to the relationship, including (but not limited to) details of a personal, intimate or sexually explicit nature.

11. Included within the scope of the ex parte injunction were the aforesaid photographs and cheque.

12. The plaintiff’s causes of action advanced against the defendant are, as I understand them, breach of confidence and/or misuse of private information.

Principles for restriction on open administration of justice

13. The principle of open administration of justice is a fundamental one in our legal system and cannot be emphasised too strongly.  The applicable principles for restriction on open administration of justice have recently been considered comprehensively by the Court of Appeal in Asia Television Ltd v Communications Authority [2013] 2 HKLRD 354.  The following principles were stated in the judgment of Cheung CJHC (with whom Lam JA, as he then was, agreed):

“19. First and foremost, ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done’: R v Sussex Justices, Ex parte McCarthy [1924] 1 KB 256, 259, per Lord Hewart CJ. Open administration of justice is a fundamental principle of common law: Scott v Scott [1913] AC 417; R v Chief Registrar of Friendly Societies, Ex parte New Cross Building Society [1984] 1 QB 227; Re BU [2012] 4 HKLRD 417. 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 can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties’ or witnesses’ identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely. R v Legal Aid Board, Ex parte Kaim Todner [1999] QB 966, 977E/F‑G.

20. Second, from the litigants’ perspective, open justice also gives effect to their rights to a public hearing guaranteed in article 10 of the Hong Kong Bill of Rights.

21. Third, from the public’s point of view, open justice, which carries with it the freedom to attend proceedings and to report on them, gives substance to the media’s right to freedom of expression including the freedom to seek and impart knowledge, guaranteed under article 16(2) of the Hong Kong Bill of Rights. Likewise, it enables the public to enjoy their right to seek and be imparted with knowledge guaranteed under the same article.

22. Fourth, all this means that any restriction on open administration of justice necessarily represents a compromise of these important interests, rights and freedoms, and must be justified by considering and balancing all pertinent interests, rights and freedoms, including in particular those mentioned above.

23. Fifth, the case law has firmly established that the following considerations or matters do not by themselves justify any restriction on open administration of justice:

(1) Publicity of litigation leading to embarrassment and inconvenience: Re Wong Tung‑kin [1989] 1 HKLR 93; Ex parte New Cross Building Society, at p 235F.

(2) Publicity leading to economic damage, even very severe economic damage: R v Dover Justices, Ex parte Dover District Council and Wells (1992) 156 JP 433.

(3) Professional embarrassment and possible damage to profession reputation: Ex parte Kaim Todner, at pp 975H‑976C.

(4) The parties’ agreement that the proceedings be held in private: Ex parte Kaim Todner, at p 977 C/D‑D/E.

(5) The mere fact that the subject proceedings etc which gave rise to a judicial review application were held in private: Re The Takeovers & Mergers Panel [1996] 3 HKC 379; Sit Ka Yin Priscilla v Equal Opportunities Commission [1998] 1 HKC 278.

…..

26. Sixth, however, open justice is, from the perspective of proper administration of justice, just a means, albeit an important one, to an end, that is, the doing of justice between the parties concerned: Scott v Scott, at p 437; Ex parte New Cross Building Society, at p 235E. It therefore follows that where open administration of justice in a case would frustrate that ultimate aim of doing justice, it is a most important if not decisive consideration to take into account when balancing the relevant interests, rights and freedoms involved, to decide whether open justice should be restricted, and if so, by what means and to what extent.

27. The case law has very often expressed this in terms of a requirement of ‘necessity’, that is, where justice would be frustrated if open administration of justice in a particular case is not restricted, then, to the extent necessary to prevent that from happening, there may be restriction on doing justice openly.

…..

31. Seventh, apart from the interests of justice, there are other similarly important considerations that may justify restriction on open justice. Thus article 10 of the Hong Kong Bill of Rights also mentions ‘reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of all parties so requires’ as exceptions to the requirement of a public hearing. See, for instance, In re Guardian News and Media Ltd [2010] 2 AC 697 (right to respect for private and family life).

32. Eighth, where justice can be administered openly in the case itself, but to do so would or might jeopardise some right or interest of one or both of the parties outside of the case, whether open justice should be restricted and if so, the manner and extent of restriction, must be considered by conducting the balancing exercise already described. One common example is cases concerning refugees or torture claimants where it is said that the life, limb or liberty of the refugee or torture claimant or their family is or may be put at risk in the absence of some form of restriction on open justice: R (on the application of Kambadzi) v Secretary of State for the Home Department [2011] 4 All ER 975; Re BU.

…..

34. Ninth, there are other miscellaneous but by no means insignificant considerations that, if relevant, should be taken into account in conducting the balancing exercise. For instance, the nature of the proceedings is relevant: Ex parte Kaim Todner, at p 978C‑D/E. In particular, proceedings by way of judicial review relate to decisions made in the public field, and as a general rule, they must be held in public, as the public has a legitimate interest to be informed about them, unless justice would be denied: Re The Takeovers & Mergers Panel, at p 381I; Sit Ka Yin Priscilla v Equal Opportunities Commission, at p 281D. This is an additional consideration to the general consideration about the media’s and the public’s right to know based on article 16(2) of the Hong Kong Bill of Rights discussed in paragraph 0 above.

35. Moreover, it is not unreasonable to regard the person who initiates the proceedings as having accepted the normal incidence of the public nature of proceedings: Ex parte Kaim Todner, at p 978D/E‑G.

36.  Tenth, where restriction on open justice is justified, it may take many forms, depending on how all pertinent interests, rights and freedoms should best be balanced.  For instance, in the present case, the applicant asks for a blanket order for the hearing to be held in camera.  Alternatively, it asks for a partial censor of the contents of the submissions to be ventilated in open court.  Sometimes, a court may impose reporting restrictions on proceedings held in public.  At other times, the court may simply restrict the identification of the parties involved in the proceedings: In re Guardian News and Media Ltd [2010] 2 AC 697; Re BU.”

Paragraph 7 of the Ex Parte Order

14. Mr Kerby Lau (for the plaintiff) submits that there are three limbs to paragraph 7 of the Ex Parte Order:

(1) the “Private Hearing Limb”, a reference to sub‑paragraph (1) thereof;

(2) the “Restriction of Court Files Limb”, a reference to sub‑paragraph (2) thereof; and

(3) the “Anonymity Limb”, a reference to sub‑paragraph (3) thereof.

15. On the facts of the present case, I have no difficulty with the second and third limbs of paragraph 7 of the Ex Parte Order.

16. In support of the first limb, ie the “Private Hearing Limb”, Mr Lau relies on the following matters:

(1) The plaintiff and his family’s right to protection of privacy and family life.

(2) The risk of “jigsaw identification”, ie the public or the press picking up snippets of information and putting them together, will greatly increase if proceedings are held in public.

(3) The defendant is currently acting in person.  If she should choose to appear in public court in person, her identity will be revealed, together with the fact that an injunction had been made against her to restrain disclosure of information.  It is said that this will inevitably lead to questions being asked, and it is very likely that further investigations will link the defendant with the plaintiff.

(4) Even if all reasonable care is taken, realistically there is nothing to prevent inadvertent or erroneous slips of tongue in the courtroom which may disclose the identity of the parties and the plaintiff in particular to the public.

(5) If the matter is heard in public, this may inhibit the arguments that may be made in court and have a detrimental effect on the plaintiff’s case and may amount to a denial of justice to the plaintiff.

(6) In future hearings, the evidence which may reveal the identity of the parties may be disclosed, thereby defeating the purpose of the proceedings in the first place.

(7) The defendant has already indicated that she does not intend to defend the present proceedings.  It is therefore unlikely that the proceedings will lead to a full blown trial or produce any substantive reasoned judgment regarding the disputes between the parties.  Hence the consideration of “allowing interested observers and legal practitioners … to monitor the court’s processes and form a view as to whether judges are applying a consistent, fair and balanced approach” is of less weight, and the value of having all future hearings in public so that there may be public scrutiny of the court process is very limited.

17. As earlier observed, the Private Hearing Limb effectively imposes a blanket order that all further proceedings herein would be held behind closed doors.  On the face of it, it will mean that even the trial of the action, should there be one, will be so held, which I regard as highly unusual and can only be justified in the most exceptional circumstances.

18. In my view, it is not necessary for me to deal with the above matters relied upon by Mr Lau individually.  The present application can be disposed of on a simple basis, namely, that it seems to me to be wrong in principle to make a blanket order at this stage that all further proceedings herein be held behind closed doors.  In view of the present stance of the defendant, it is questionable whether there will be any further hearing, whether in chambers or in court, in this matter. Should there be any in future, one cannot tell now what information may become public knowledge at that time.  Also, one cannot tell in advance what may be in issue in any future application, and whether there is any real risk that the identity of the parties would be revealed should be the application be heard in public.  It seems to me far more appropriate that each application for a court hearing to be held in private should be considered in light of its prevailing circumstances, and appropriately justified.

19. Moreover, even if there should be any departure from the principle of open administration of justice, the departure should, in my view, be no more than the minimum which is reasonably necessary to protect the legitimate interests which it is said would justify a private hearing.  At this stage, I consider that the protection afforded by sub‑paragraphs (2) and (3) of paragraph (7) of the Ex Parte Order would provide sufficient protection to address the plaintiff’s interests or concerns.

20. I appreciate that paragraph (7) of the Ex Parte Order provides exceptions to be made with the leave of the court which may only be granted after an inter partes hearing held in chambers (not open to the public).  However, that seems to me to be putting the matter in the wrong order.  The prima facie position is that court hearings should be held in public (save in relation to well recognised exceptions), and any departure from this position ought to be justified, not the other way round.

21. In all, I am not prepared to make any order which continues sub‑paragraph (1) of paragraph 7 of the Ex Parte Order.

22. Lastly, for the avoidance of the doubt, I should make it clear that I have not considered whether, had the application been fully argued, I would have considered it right to make an order to restrain the defendant from disclosing her previous relationship with the plaintiff to the public.  While it may be right to restrain her from disclosing photographs taken of the plaintiff in private, there could be different considerations involved when it comes to disclosure of the defendant’s own relationship with the plaintiff.  However, not having heard full arguments on this matter, it would not be right for me to express any view in this decision.  This is an issue which may have to be resolved in some other cases in future.