DJ (also known as DJJ) v. LRM (also known as LRMJ)

FCMC 8507 / 2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 8507 OF 2013

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Reasons for Decision
(Rule 121(2) MCR Application)

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Background

1.  This is the hearing of the Petitioner wife (hereinafter called “W”)’s summons filed on 4 June 2015 seeking leave to use documents filed in these proceedings for purposes relating to the criminal charge against her under ESCC No 1397 of 2015.

2.  The background of the parties and the history of the present proceedings are set out in D v L (Non-Molestation order), FCMC 8507/2013 (13 March 2014) and D v L (Maintenance Pending Suit), FCMC 8507/2013 (10 July 2014).

3.  W and the respondent husband (hereinafter called “H”) were married in 1991.  Three children were born out of the marriage, namely T (a daughter born in 1995), C (a daughter born in 1996) and M (a son born in 2000) (hereinafter called “the Children”).

4.  W and H separated in May 2011 when he and the Children moved away from the former matrimonial home.

5.  W commenced the present divorce proceedings in June 2013.

6.  Care and control of C and M was granted to H by consent on 4 December 2013.  An order for joint custody with reasonable access to W was made on 17 March 2014.

7.  W took out a summons on 3 December 2014 applying for a variation of the previous order by seeking the care and control of M.

8.  W was contacted by the police on 29 January 2015 in relation to a case of child sexual assault.  It later transpired that on 9 January 2015, T, C and the Children’s carer, a Ms Poon, had accompanied M to report to the police that M was suspected to have been sexually assaulted by W some 7 years ago.

9.  W was charged on 30 April 2015, and appeared before Eastern Magistracy on 5 May 2015.  The criminal case was adjourned to 30 June 2015 for mention.

10.  By the present application W is seeking the following:

(a) Leave to use, produce and refer to documents filed or disclosed under FCMC No 8507 of 2013, the particulars of which are set out in the schedule annexed to the minutes of order lodged, for the purposes of:

i. making written representation to, and/or discussing with the Department of Justice to invite the Director of Public Prosecutions (“DPP”) to reconsider the decision to prosecute W under ESCC No 1397 of 2015; and/or

ii defending the criminal charge against W under ESCC No 1397 of 2015; and

(b) W be released from any implied undertaking in relation to the above-mentioned documents for the purposes stated in the above.

11.  H is absent from today’s hearing. As evidenced by the 8^th affirmation of Ng King Fung filled on 22 June 2015, W’s legal representative has given H notice of today’s hearing by a letter dated 16 June 2015 sent by ordinary post to H’s usual and last known address.  Having carefully considered, I am satisfied that I should proceed with the hearing of W’s present application in the absence of H.

12.  At the end of the hearing today, I made an order in terms of W’s application, with reasons for decision to be handed down.  I now give the reasons for my decision.

Applicable legal principles

MCR rule 121(2)

13.  Rule 121(2) of the Matrimonial Causes Rules, Cap. 179A (hereinafter called “MCR”) provides that no document filed in the matrimonial proceedings, other than a decree or order made in open court, shall be open to inspection by the public without the leave of the court. 

14.  The rationale of such rule is that matrimonial proceedings are private in nature.  For the protection of the parties involved in the proceedings, the documents filed in such proceedings shall not be disclosed in public unless leave of the court seized with the matrimonial proceedings has been obtained: see Horst Joachim Franz Geicke v 1-Onasia Ltd, HCA 2379/2009, 17 October 2011 §32, per DHCJ Lok (now Lok J).

15.  On top of MCR rule 121, the Family Court has the general power of control over access to documents within its custody in common law, and the exercise of the inherent jurisdiction is subject to a balancing test in terms of weighing the relevant conflicting interests and rights: see Secretary for Justice v FTCW & Ors [2014] 1 HKLRD 849, at §§16, 27-28, per Hon Lam VP.

16.  At §114 of the abovementioned judgment, Lam VP at 85 referred to R (Guardian News and Media Ltd) v Westminster Magistrates’ Court [2013] QB 618 and adopted Toulson LJ’s approach as follows:

“In a case where documents have been placed before a judge and referred to in the course of proceedings, in my judgment the default position should be that access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong. However, there may be countervailing reasons. … I do not think that it is sensible or practical to look for a standard formula for determining how strong the grounds of opposition need to be in order to outweigh the merits of the application. The court has to carry out a proportionality exercise which will be fact-specific. Central to the court’s evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others.”

17.  In the context of an application for disclosure of wardship documents for the purpose of criminal investigation, it was held in In re D. (Minors) (Wardship: Disclosure) [1994] 1 FLR 346 per Sir Stephen Brown P at 350-351:

“…the judge hearing an application for leave to disclose such documents must in the exercise of his discretion conduct a balancing exercise―that is to say, he has to balance the importance of confidentiality in wardship proceedings and the frankness which it engenders in those who give evidence to the wardship court against the public interest in seeing that the ends of justice are properly served. In relation to criminal proceedings it is clear that the wardship court should not, as it were, seek to erect a barrier which would prejudice the operation of another branch of the judicature. There have been a number of cases where the discretion of the judge has been exercised to give leave to disclose to the Crown Prosecution Service matters which are part of the wardship file. Similar considerations will apply to defendants because it is in the interests of justice that a defendant in a criminal trial should have available all relevant and necessary material for the proper conduct of his or her defence.”

Implied Undertaking

18.  The general principles as to when an implied undertaking arises in relation to documents disclosed in civil proceedings can be found in Shun Kai Finance Co Ltd & Others v Japan Leasing (HK) Ltd (No 2) [2000] 3 HKLRD 539 where the Le Pichon JA stated the majority judgment at 542C-546B that:

“Compulsion was the bedrock of the undertaking. In determining whether the undertaking applied or not, a distinction was drawn between documents produced voluntarily and those produced under compulsion. Where documents were produced under compulsion, there was an invasion of privacy and it was this invasion that gave rise to the undertaking. The normal discovery process was not voluntary inasmuch as parties were compelled to disclose their private documents. Where a party voluntarily chose to refer to a document in his pleading or an affidavit, it was he who destroyed the privacy of the document. Further, even though a party in breach of any order made pursuant to O.24 r.11 might face committal under r.16(2), that did not mean that production under r.11 was within the compulsion principle: there was no compulsion even though the consequence of the choice to refer to the document was that it had to be disclosed.”

19.  However, in the same judgment, Keith JA at 557E-558D gave the following dissenting judgment:

“It was a fiction to describe a litigant’s decision to waive the privacy in a particular document by referring to it in a pleading, as voluntary. Rules of court required all material averments to be pleaded. Litigants had no choice in the matter. Thus, references to a document in a pleading which triggered the obligation to produce the document for inspection was as involuntary a waiver of privacy, as the waiver of privacy under the normal processes of discovery.”

20.  It is also stated in Matthews & Malek, Discovery (2012) at 19.11:

“At common law the undertaking covers not only documents disclosed on discovery, but also any other documents disclosed by a party under compulsion of court process. Thus the undertaking has been held to apply to documents produced under a subpoena duces tecum, or under the Norwich Pharmacal procedure, or under an order made pursuant to s.7 of the Bankers’ Books Evidence Act 1879, or for the purposes of detailed assessment of costs, or under the procedure for giving effect to letters of request, as well as affidavits and exhibits produced only because the court has ordered them to be provided by way of discovery of assets pursuant to the asset-freezing (Mareva) jurisdiction or a search (formerly Anton Piller) order, or in matrimonial proceedings. The undertaking also extends to information in Lists of Documents given on discovery as well as to the documents themselves. It has even been held to apply beyond documents, but where an equivalent process of compulsory disclosure has been used by the court to order inspection of a machine or tests on samples, and, in Canada, to transcripts of oral discovery examination….”

My ruling

MCR rule 121(2)

21.  Applying the above legal principles to the present case, I am persuaded that this is an appropriate case for leave to be granted whether under rule 121(2) of the MCR or the inherent jurisdiction of the court for the following reasons.

22.  As can be seen from the above authorities, the default position is that access to documents filed in court proceedings should be permitted on the open justice principle, subject to the proportionality exercise.  The fact that these are matrimonial proceedings does not detract from such a position but represents only one factor to be taken into account in the balancing exercise.

23.  In the present case, obviously it is in public interest to enable W to properly conduct her defence against a criminal charge laid against her.  No doubt it is in the interest of justice that W should have access to relevant and necessary materials for the purpose of conducting her defence in the criminal proceedings.

24.  W’s legal representatives are in the course of preparing written representations to the Department of Justice to invite DPP to reconsider the decision to prosecute.  Given the procedural history of these proceedings and the proximity in time between W’s application for care and control of M and the complaint made to the police, it is probable that an overview of the background of the parties and the history of the ongoing matrimonial disputes between H and W would shed light on the complaint of sexual assault made by the Children to the police abovementioned.  I accept W’s submission that the documents that she seeks to be open to inspection by DPP are capable of enabling DPP to have an objective evaluation of the alleged incident of sexual assault.

25.  On the evidence before me, I cannot see that H would be prejudiced in any way by permitting W to use the documents in the manners abovementioned.

26.  In Secretary for Justice v FTCW & Ors, supra, the husband and the intervener in the action objected to the production of some of the documents on the ground of privilege against self-incrimination.  As far as I can see, no issue relating to privilege against self-incrimination arises in the present application.

27.  Last but not least, I am given to understand that the handling magistrate has already made an anonymity order under ESCC No 1397 of 2015 prohibiting publication of the name of the victim or any information that will enable the public to identify the victim.

Implied Undertaking

28.  The present application does not concern any documents that were disclosed by any party on discovery.  In breach of several orders made by the Family Court in these proceedings, H has not made any discovery.  Even the filing of his Form E is still outstanding. Other than those documents filed by or on behalf of W and orders/judgments made by the Family Court, the documents that W seeks to be open to DPP are mostly related to (a) children’s matters, or (b) W’s non-molestation injunction application. The filing and service of lists of documents were ordered under W’s two section 17 applications that were dealt with by the Family Court as preliminary issues but the present application does not concern any documents relating to the said s.17 applications.

29.  It therefore seems that the documents that W seeks to be open to DPP do not attract any implied undertaking.

30.  Nevertheless, as there is no exhaustive list of what categories of documents are covered by implied undertaking, and in view of Keith JA’s dissenting judgment in Shun Kai Finance Co Ltd & Others v Japan Leasing (HK) Ltd (No 2), supra, and the discussion on the subject in Matthews & Malek, Discovery abovementioned, I accept W’s submission that it may be open to H to argue, for example, that he was under compulsion to file his affirmations (or the exhibits thereto) in opposition to W’s applications for the non-molestation injunction or joint custody.

31.  The court certainly has power to release an implied undertaking given to the court in appropriate cases. In the exercise of the discretion, the court may take into account a number of factors including the nature of the document, the nature of the information in the document, any prejudice the author of the document may sustain and the likely contribution of the document to achieving justice in the second proceedings: see Secretary for Justice v FTCW & Ors, supra, §§122-146, per Lam VP.

32.  Insofar as it may be necessary, the paragraphs 21 to 27 in the above are repeated.

33.  Having carefully considered, I regard that W should be released from any implied undertaking such that she may conduct her defence fully in ESCC No 1397 of 2015.

34.  For reasons stated in the above, I make an order in terms of W’s application with no order as to costs.