CHAN SING CHUEN v. YUNG MEI CHUN

CACV 69/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 69 OF 2003

(ON APPEAL FROM DCCJ No. 15756 OF 2000)

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J U D G M E N T

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Hon. Cheung J.A. :

The proceedings

1. On 31 December 2002 Deputy District Judge W. Chan gave judgment for the plaintiff against the defendant in the sum of HK$135,000.00 together with interest and costs.

2. By a summons dated 28 February 2003 the defendant asked for the following relief :

“ 1. the Defendant do get back the originals of exhibits she has filed with the District Court during the trial in September and October 2002;

2. the Judgment dated 31 December 2002 be removed from the Government's website and other related website; and

3. an extension of time to apply for leave to appeal be granted to the Defendant pending the discovery of all the papers and files in relation to the District Court Action 15756 of 2000."

3. The judge heard the summons on 6 March 2003. He ordered that leave be granted to the defendant to obtain a copy of all the exhibits produced at the trial upon payment of the prescribed fee. He dismissed the applications for the other relief sought by the defendant.

4. On 7 March 2003 the defendant issued a summons asking for leave to appeal against the order of the judge in respect of paragraphs 2 and 3 of her earlier summons.

5. On 13 March 2003 the judge granted leave to the defendant to appeal against his earlier order of 6 March 2003. This is the hearing of the appeal.

6. On 19 March 2003 the defendant issued another summons seeking leave from the judge to appeal against the judgment dated 31 December 2002. On the hearing of the summons on 14 April 2003 the judge adjourned the summons to await the outcome of this appeal.

Publication of judgment

7. Judgments of cases heard in open court are published on the judiciary website. Hong Kong is not alone on this. The publication of the judgment on the website is essentially an administrative decision and not a judicial decision.

8. Judgments of cases heard in open court can be published without any restriction.

9. The present case involves a commercial dispute in which there is no question of sensitive or confidential information being disclosed. This is unlike cases involving matrimonial disputes, children, secret process or confidentiality the nature of which will necessarily restrict the publication of the judgment.

10. The defendant claimed that as she is a qualified accountant, the contents of the judgment affects her professional reputation and her employment. She claimed that she has a strong ground of appeal. It would be to her prejudice if her appeal is eventually successful. Damage to her reputation will be done if the judgment is allowed to be published on the website.

11. A judgment will necessarily involve findings by a judge on the actions and conduct of the litigants. It may contain criticisms of them or these may reflect badly on their actions or conduct. A party to an action, however, just has to accept that this is part of the process of the litigation. He also has to accept the consequence of the court's decision being published to the public. The publication of the judgment on the website of the judiciary is just another form of publication.

12. The judge pointed out that under Order 42, Rule 5B(4) of the Rules of the District Court ("the Rules"), a copy of the judgment handed down by the court is required to be lodged in the High Court Library, and the District Court is required to make a copy thereof available for public inspection in the registry.

13. While there is no specific provision regarding the publication of judgments on the website, there is likewise no restriction on this form of publication. The publication on the website is consistent with the principle of making judgments of cases heard in open court available to the public. The posting of the judgment on the website is the means, by way of modern technology, of making the judgment available to the public. The number of readers who may come across this judgment on the website and those who read it in the library or registry cannot be determinative of the issue.

14. This specific appeal is without merits and must be dismissed.

Extension of time

15. Under Order 58, Rule 2(4) of the Rules, the application for leave to appeal against a judgment must be made not later than the expiration of 28 days beginning on the day immediately following the day of the sealing of the judgment. The judgment in this case was sealed on 15 January 2003.

16. When the defendant issued the summons of 28 February 2003, she was not asking that she might be granted leave to appeal out of time. Rather, what she was seeking was an open ended order which will enable her to go back to the District Court to apply for leave to appeal against the judgment of 31 December 2002. The merits of the appeal was not an issue before the judge.

Reason for the extension

17. The basis of her application is that the 'papers and files' in relation to this action have been kept by her former solicitors ("the solicitors"). The documents include notes made by her counsel and solicitors during the trial, correspondence between solicitors and her instructions to the solicitors. She had commenced a High Court Action against the solicitors. She would seek discovery of those documents from them. Without those documents she claimed that she would not be able to advance her grounds of appeal.

Means to obtain the documents

18. It is unlikely that the defendant's solicitors would not have supplied her with copies of all relevant documents including pleadings in the course of the preparation of the case for trial.

19. In any event, as a party to the action, the defendant is entitled to inspect the court file and take copies of the filed documents upon payment of the required fee. She may also apply for the transcripts of the hearing. She has already obtained an order for the release of the copies of the exhibits.

20. These documents would clearly be sufficient to enable her to advance the grounds of appeal for the purpose of applying for leave to appeal.

21. She claimed that the costs of obtaining the transcript would be very high and this is not something she could afford. We were not provided with information about her financial condition. In any event in this case, she had previously obtained the tape recording of some of the hearings. Identifying the relevant parts of the proceedings on the tape and obtaining a transcript of those parts would help to reduce the costs.

Pending action

22. Further, the fact that the defendant may be able to obtain discovery of these documents in a pending action from her former solicitors clearly is not a valid ground for granting her a general extension of time. The matter can be approached in another way. Had there been no pending action, she would still have to obtain the documents in the way I have indicated if she requires those documents. Whether extension of time should be granted or not has to be assessed in the context in which these documents can properly be obtained and not by reference to some indirect means.

23. The pending action is an action by her solicitors against her for the legal fees of $614,805.00 in respect of services rendered to her in this action from 15 May 2001 and 29 October 2002.

24. The defendant put in a bare denial that the solicitors were not entitled to the fees. She counterclaimed that the solicitors had been negligent in handling her case and she asked that the solicitors should fully indemnify her for all her losses and damages.

Privileged documents

25. I am fully conscious of the fact that there may be privileged documents between the solicitors and the defendant, which she would not be able to obtain from the court file. The solicitors obviously would not release the documents unless their fees are paid. In view of the litigation between them, the prospect of the defendant obtaining those documents by paying the fees at this stage is remote.

26. However, in response to the solicitors' application to strike out the counterclaim, the defendant had by affidavit identified the particulars of the solicitors' negligence, which included, among other things, their failure to put forward the alternative case that "if the Court finds the defendant to be the plaintiff's agent, she had carried out further trades on behalf of the plaintiff since April 1999 which resulted in further losses thereby reducing the balance to a negative figure". She further included documents in the form of draft closing submissions and closing submissions of counsel in support of her contention. Obviously this is a matter she was able to put forward with supporting documents even before the discovery.

27. In her recent application for leave to appeal, she has set out various grounds of appeal. Although the negligence of the solicitors does not form part of her grounds, nonetheless, even if this further ground should also be considered by the court in the application for leave, her recent affidavit shows that she would be able to put forward this specific ground of appeal relating to the judgment even without the discovery in the pending action.

Further grounds

28. In her oral submission the defendant referred to further matters which she claimed the solicitors had not advanced for her despite her instructions. They included matters concerning the authenticity of the e-mails, the plaintiff's absence of knowledge of the nature of her employment and the instructions given by the plaintiff in the transactions. In my view, even without the supporting documents, the defendant would still be able to formulate the relevant grounds of appeal for the purpose of obtaining leave.

Other matters

29. The defendant alleged that the plaintiff's legal representative had informed the judge that he would not oppose her applications. What the legal representative said was that he would not consent to the applications but he would also not oppose. I take this to mean that he would not consent to the defendant's applications although he would not advance any argument in opposition against them. In other words he left the matter to the decision of the judge. Accordingly the judge had to make a decision on the defendant's applications. This is not a matter that would assist the defendant, because quite simply the matter before the judge was not a consent application.

30. The judge was correct to refuse to grant a general extension of time for the defendant to apply for leave to appeal. Accordingly, the defendant has also failed on this aspect of the appeal.

Conclusion

31. The defendant's appeal is dismissed.

Costs

32. The plaintiff is entitled to the costs of the appeal on a provisional basis. Unless the defendant lodges a written objection within 14 days from the date of this judgment to the provisional costs order, it will become an absolute one.

Hon. Yuen J.A. :

33. I agree.