AA v. BB

FCMC 41/2022

[2025] HKFC 128

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 41 OF 2022

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D E C I S I O N

(Publication of Judgment)

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1.  The Respondent objected to publication of the ancillary relief judgment in these proceedings handed down on 12 March 2025 (“the Judgment”) by her letter dated 20 March 2025.

2.  The court directed that the parties lodge submissions and specify any further words/items that they required to be redacted. The Petitioner is represented and lodged the Petitioners Submissions (Publication of Judgment) 22 May 2025 by his trial counsel, Mr Barns. The Respondent is no longer represented, or not for her present application. She lodged Respondent’s Submissions (Publication of Judgment) dated 5 June 2025 in person.

3.  The Respondent applied for publication of the Judgment to be withheld because it contains personal data of the Respondent and the children and publication may reveal her identity and expose her and the children to misuse of their personal data. Alternatively, she applies for the Judgment to be further redacted and anonymised.

4.  The Petitioner considers that the Judgment may be published as is and takes a neutral stance on the further redaction application, subject to certain observations.

General principles concerning publication of Family Court judgments

5.  Order 42, rule 5B of the District Court Rules (“RDC”) sets out the procedure to be followed upon delivery of judgments in writing, and provides, inter alia, that:

"(4) Where a judgment or order and reasons therefor or the reasons are given at a later date and, being recorded in writing, are not read in full, the Court shall-

(a) lodge a copy thereof in the High Court Library; and

(b) make a copy thereof available for public inspection in the Registry.”

6.  In addition, the modern practice is for judgments to be uploaded to the Judiciary Website, and thereafter available for publication on such sites as HKLII.HK.

7.  For cases in the Family Court division of the District Court, a bespoke procedure applies to supplement O.42, r.5 RDC. Practice Direction 15.15 applies to "Concerned Proceedings", including "Matrimonial Proceedings", defined by PD 15.12 to include proceedings under the Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”).

8.  PD 15.15 relevantly provides as follows:

"Publication of Judgments

21. Al judgments in Concerned Proceedings, whether in hearings open to the public or not, should normally, in line with Article 10, conceal the identities of the parties and any children who are mentioned. Accordingly, the names of the parties and children and any part of the judgments which may reveal their identity should be properly redacted unless there are good reasons not to do so.

22. In light of the considerations of §21 above, all judgments of the Court of First Instance and the Family Court whether made in hearings open to the public or not will be published (if at all) in the following manner:

(a) Copies of the judgments with initial redaction made by the Court will be released to the parties upon handing down. Unless otherwise directed by the Court and subject to the steps below, the judgment will in due course be released for publication.

(b) If any party to a hearing which is not open to the public objects to the publication of the judgment, or, if any party considers that further redaction is required, such a party should write to the Court within 14 days upon handing down of the judgment.

(c)After receiving the party's view on the publication or redaction, as the case may be, the Court may further redact the judgment as it deems fit. Thereafter, the judgment may be released for publication in the usual manner if the Court so directs.

(d) In the event that no request for further redaction is made within 14 days after handing down of the judgment, or, in the case of a hearing which is not open to the public, no objection to publication of the judgment is received, the parties shall be taken to have no objection to the publication of the judgment as initially redacted by the Court. The judgment will then be released for publication in the usual manner."

9.  PD 15.15 was introduced in June 2015, following the release of the Final Report of the Chief Justice's Working Party on the Review of Family Procedure Rules and its recommendation for a specific Practice Direction to deal with the process of publication of judgments of the Family Court (see §§252-255).

10.  The Final Report noted at §§ 204 - 215 the public interest in the publication of judgments, consistent with the principle of open justice, commenting that:

"206. Restrictions on publication of judgments in family cases may unnecessarily inhibit dissemination of judgments. Thus, the Family Court has adopted the practice of publishing judgments delivered after a trial of two days or more or after any hearing touching on legal principles. Further, the Chief Justice has issued an internal instruction, requiring that all judgments in family and matrimonial cases should be suitably anonymised before release. We proposed that the present practice to be incorporated into the New Code. (Proposal 121)"

11.  In TCWF V LKKS and ors (CACV 154 and 166 of 2012, judgment 29 July 2013), the Court of Appeal, considered the matter of open justice in the context of appeal proceedings involving a matrimonial dispute: including whether the anonymity afforded to the parties at first instance would be continued on appeal and whether the proceedings should be heard in camera: §§22 - 46. At §22- 23, Lam JA (as he then was), delivering judgment for the Court, noted, by reference to the judgment of the Chief Judge in ATC v Communications Authority [2013] 3 HKC 62, that open administration of justice is a fundamental principle of common law and that matters which do not by themselves justify any restriction on open administration of justice include publicity of litigation leading to embarrassment and inconvenience, professional embarrassment and possible damage to professional reputation. Further, the Court of Appeal held at §43 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 recognise the importance of open justice in family proceedings."

12.  Lam JA further noted that in most cases where a court deems it necessary to give some protection to the rights of the parties in curtailing the open nature of proceedings, "it would be sufficient for such purposes to grant anonymity order and to restrict the publication of some highly sensitive information" but that even there, the court should adhere to the guidance of the Chief Judge in ATV v Communications Authority (at §37).

13.  The Family Court is sometimes asked not to publish a judgment on the ground that it would cause professional or personal embarrassment to one or other party, or have an adverse impact on children. Such concerns can be allayed by appropriate anonymisation of the parties and of related entities such as properties owned by them, and companies or businesses in which they are involved.

14.  In FR v MF [2021] HKCFI 1750, [2021] 3 HKLRD 294, a matter involving an application under the Child Abduction and Custody Ordinance (Cap 512), the Court of First Instance handed down a judgment ordering the return of the parties' children to France, with appropriate safeguards being put in place. The judgment was anonymised.

15.  The mother nonetheless objected to the judgment being published at all, explaining through her solicitors that (see §3):

"details of a lot of the family matters have been revealed in the Judgment and the Respondent [the mother] was concerned that people that know her family would be able to identify the family when reading the Judgment and it is possible that the Children might be affected as a consequence.

16.  Hon Bebe Chu J did not consider that the reasons were valid nor were they sufficient to override considerations of open justice, but that the court would be prepared to allow the mother to propose further redactions for the court's consideration:§§4, 12.

17.  The Respondent refers to and relies upon the Submission in response to the Review of Family Procedure Rules Interim Report and Consultative Paper (“PCPD Submission”) which reiterates the importance of protecting personal data. The Privacy Commissioner for Personal Data Guidance on Personal: Data Erasure and Anonymization (“PCDC Guidance Note”) defines anonymisation as follows:

“Anonymising personal data means removing from the personal data any information from which an individual may be identified by anyone reading the record. Anonymization also means that the data user is not in a position to re-establish the identity of any individual with its other existing or future information on the individual”

18.  The Respondent also seeks to anonymise contextual information. The PCDC Guidance Note view includes that :

“Simply removing names, addresses or other obvious identities (such as biometric date) may not be sufficient to make the data fully anonymous. When data contains complex or unique descriptions of individuals, it may be practicable for others to identify them even if the data does not contain any obvious identifiers.”

19.  The Respondent relies upon the PCDC Guidance Note observation that:

“Furthermore, with advancement in information technology, it may be possible for the data user or any third parties to ascertain or reasonably ascertain the identities of individuals using other publically available information.”

Respondent’s position

20.  The Respondent explains her concern that publication may reveal her and the children’s identity. Her letter dated 20 March 2025 conveyed her genuine concern regarding the potential harm that publication of the Judgment may inflict on her and the children and sought to withhold its publication. She considers that the Petitioner’s Submissions cast doubt on the sincerity of her request.

21.  Regarding the children, she has consistently placed the well-being of the children as her foremost priority. She has taken every step throughout the proceedings to shield them from the consequences arising from the divorce. The Judgment contains sensitive information, which if misused or disclosed without appropriate safe guards, could subject the children to harassment, stigmatisation or emotional distress – harms that may have a profound and lasting impact on their future.

22.  As to the Respondent herself, she is presently seeking employment and in so doing she must be mindful of how public access to the Judgment might affect not only her own privacy but also her ability to meet the shortfall of monthly maintenance paid by the Petitioner to provide for the children.

23.  Accordingly, the Respondent requests further redactions of the Judgment in accordance with the principles of anonymisation set out above. She says that further redaction is necessary to prevent identification of the Respondent and the children. In addition to removing personal particulars she proposes redacting contextual details so that it is not possible to re-establish their identity with other information on them. She is concerned about uniquely identifying factors that apply only to her the combination of which may enable a “google” identification. Further, combination of information such as education and employment history and the timeline creates a distinctive profile which, with public data, can allow someone to deduce her identity.

24.  The Respondent believes that the redaction sought of private personal information in the Judgment would not prejudice the interests of justice. She has marked up the redactions on a copy of the Judgment.

Petitioner’s position

25.  The Petitioner submits that the Respondent's arguments are not valid reasons for the non-publication of the Judgment, which should be uploaded to the Judiciary website in the usual way. Whether that should be after further redactions is a matter for the court's consideration and exercise of its discretion.

26.  The Petitioner does not ask for further redactions. The Judgment has been written with regard to the importance of the privacy of the parties and their children, including by the anonymisation of their names, and entities, including companies, with which they are connected. These are, in themselves, significant redactions. The way in which the court has drafted the Judgment will ensure that most members of the public will not be able to identify the parties. Publication of judgments involves the balancing of the parties' right to privacy and the public interest in the open administration of justice.

27.  The fact that relatives, close friends and acquaintances who chance upon the Judgment might conceivably connect it with the parties from the facts and circumstances as described in the Judgment is not a valid reason against publication: FR v MF. If it was, most Judgments, including those involving ancillary relief, would not be published.

Discussion

28.  Judgments of the Family Court are not in a special category: the same general rule applies namely, that judgments should be published, with appropriate safeguards to protect the identity of the parties and children. Mr Barns submits that it is of considerable importance for the administration of justice that considered and reasoned judgments be accessible by other litigants and their advisors, whose cases may raise similar factual and legal issues, and who may well be assisted in seeing the way in which the court has dealt with, for example an allegation of non-disclosure or the question of how trust assets should be treated. Mr Barns notes that in this case, the Judgment involves findings on a very topical and increasingly important area: the weight to be attached to a post-separation settlement agreement.

29.  The Petitioner adds that the party in this case who is seeking to prevent publication of the Judgment is the one whose litigation conduct has been criticised. Seeking to prevent others from reading such criticism is not a valid reason for non-release of the Judgment. The publication of judgments which include criticism of conduct which is antithetical to the administration of justice plays an important role in the administration of justice by encouraging other litigants to abide by the governing principles, including procedural economy and fairness in litigation.

30.  The court directed the parties to specify any further redactions sought. The Petitioner does not seek any. Subject to the following comment, he adopts a neutral stance on the matter of further redactions. The comment is this: it is undesirable for wholesale redactions to be applied, to the extent that it would operate as a form of censorship of a judgment, which the Petitioner regards as perfectly publishable as it stands.

Determination

31.  The Judgment is in “Concerned Proceedings” in terms of the PD 15.15. In line with Article 10 of the Hong Kong Bill of Rights Ordinance, Cap. 383, the Judgment concealed the identities of the parties and the children. The names of the parties and children, as well as companies, have already been redacted. Copies of the Judgment with initial redaction made by the court was released to the parties upon handing down. Unless otherwise directed by the court, the Judgment would in due course be released for publication.

32.  The Respondent initially objected to the publication of the Judgment and subsequently proposed further redactions she requires. I have considered the submissions and views of each party on the publication or redaction and the legal principles set out above. I must balance the interest of the parties and relevant public interest. Open administration of justice is a fundamental principle of the common law. I am not prepared to prohibit publication of the Judgment. The Respondent’s concerns are not sufficient to withhold publication. No highly sensitive information remains. However, to allay the Respondent’s concerns I do accede to her application for further redaction of the Judgment. The redactions made are in respect of each of the matters of concern raised by the Respondent, though not in precisely her terms. I direct that the so redacted Judgment shall be released for publication in the usual manner.

Costs

33.  The Respondent’s application has succeeded in that her concerns have been addressed by further redaction. The Petitioner fairly took a neutral stance on further redaction, but provided submissions to assist the court. Considering the justice and reality of the matter I make a costs order nisi that there be no order as to costs. Either party may apply to vary the costs order nisi within 14 days hereof failing which the nisi order shall become absolute.