TSANG CHIU WING FLORENCE (also known as LI TSANG, CHIU WING FLORENCE) v. LI KIN KAN SAMATHUR

FAMV Nos. 34 &35 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NOS. 34 & 35 OF 2014 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACV NO. 154 OF 2012)

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REASONS FOR DETERMINATION
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Mr Justice Ribeiro PJ :

1. At the hearing, we dismissed this application for leave to appeal for reasons which we now provide.

2. These were two applications in identical terms for leave to appeal brought by Mr Samuel Tak Lee (“STL”), the 2^nd Intervener in matrimonial ancillary relief proceedings between his son, Mr Samathur Li Kin Kan (“H”) and his former daughter-in-law, Ms Florence Tsang Chiu-wing (“W”).  STL sought leave to appeal against the Court of Appeal’s dismissal[1] of his appeal against a direction made by the trial Judge, Saunders J, to the Registrar of the High Court to forward an un-redacted copy of his ancillary relief judgment to the DPP.[2]

3. The background events are described in this Court’s judgment in Secretary for Justice v Florence Tsang Chiu Wing and Others[3](“the Disclosure Judgment”) and that description will not be repeated here.  The Judge decided to refer his ancillary relief judgment to the DPP because of his findings, made on the civil standard of proof, that H and STL had forged a certain document with a view to minimising the assets available for distribution to W.  H and STL objected to his referral, but it was too late as the judgment had already been sent to the DPP.

4. STL made a number of complaints about Saunders J’s order, principally, that (i) the issue of forgery was not before the Court and the finding was not supported by admissible evidence and should never have been made; (ii) the document sent to the DPP contained references to and quotations from communications protected by legal professional privilege (“LPP”) which were thus wrongly disclosed to the DPP in breach of the constitutional rights of H and STL; and (iii) the judgment was sent without giving H and STL a chance to be heard, depriving them of any opportunity to object to the referral and to assert their rights.

5. There is force in these criticisms, but significant measures have already been taken to neutralize the effects of the errors made by Saunders J. 

(a)  The Court of Appeal agreed that the Judge should never have made findings of forgery and set those findings aside.[4]  This is noted in this Court’s Disclosure Judgment[5] to which the DPP was a party.  The DPP is therefore fully aware of the fact that the findings which led to the Judge’s referral have been set aside.

(b) In response to an originating summons taken out by the DPP, the Court of Appeal held that the DPP is not entitled to rely on Saunders J’s ruling in favour of W that the documents were not covered by LPP because they came within the Cox and Railton crime/fraud exception.  It ordered the question of whether the Cox and Railton exception applies vis-à-vis the DPP to be remitted to a first instance judge.[6]

(c) In the Disclosure Judgment, this Court overturned the decisions below releasing W from her implied undertaking to confine use of documents she had obtained from STL and H in discovery to the proceedings in respect of which such discovery was given.  W was accordingly prevented from giving the DPP access to such documents without first having the LPP question decided. 

6. This application was nonetheless pursued with a view to challenging the Court of Appeal’s dismissal of STL’s appeal against Saunders J’s direction to the Registrar to refer the judgment to the DPP.  The Court of Appeal held that the referral was not appealable since it was no different from a report made by an ordinary citizen and did not involve any attempt to order the DPP to act in any particular way.  It also held that the practice of referring the papers to the DPP where an arguable case of serious misconduct is disclosed by the evidence in a civil trial was of long standing and part of the court’s duty to uphold the rule of law. 

7. The applicant argued that the Court of Appeal wrongly (i) failed to recognize that such a referral was a judicial act carrying much greater weight than an ordinary citizen’s report of a crime and likely to generate publicity unfavourable to STL in circumstances where the Judge’s immunity from suit deprived STL of any potential remedy for malicious prosecution in the event that the criminal complaint fails; and (ii) failed to recognize that Saunders J was wrong to regard such a referral as a duty rather than a discretion to be exercised on appropriate grounds.

8. Ms Clare Montgomery QC[7] submitted that these complaints give rise to two questions of great general or public importance, namely:

(a) “Can the Court of Appeal ever review and quash the decision of a first instance judge to refer a matter to the DPP to investigate alleged criminality disclosed in the case before him?”

(b) “Can the Court of Appeal ever review and quash the decision of a first instance judge directing the Registrar of the High Court to forward a copy of his judgment to the DPP?”

9. It must not be thought that we accept STL’s criticisms of the Court of Appeal’s decision.  In particular, we should not be thought to be accepting that a judge who, having duly heard both sides in a civil case, finds that there has possibly been criminal conduct, has to hear further argument before referring the papers to the DPP. But even assuming in the applicant’s favour that the answer to Ms Montgomery’s questions is “Yes, the jurisdiction to review exists” it was impossible to see how that would help him in any practical sense.  It would be the court’s fact-specific discretionary decision whether to exercise any such jurisdiction in every case. 

10. It would in any event be an academic discussion in the present case.  Referral of the judgment to the DPP is water under the bridge.  It cannot be reversed.  Orders have been made restricting the DPP’s use of the information, denying him access to the documents referred to unless and until it is established that STL is not entitled to the protection of LPP in respect thereof.  The fairness of the position will depend, as it should, on whether the claim to privilege is overridden by the crime and fraud exception.

11. Accordingly, we did not see any justification for the grant of leave.  This application involves academic satellite litigation which should not be allowed to proceed.  The leave application was accordingly dismissed with costs.