SECRETARY FOR JUSTICE v. FTCW AND OTHERS

CACV 101/2013 &
CACV 107/2013

(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS 101 and 107 OF 2013

(ON APPEAL FROM HCMP NO 188 OF 2012)

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REASONS FOR JUDGMENT

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Hon Lam JA (giving the Reasons for Judgment of the Court):

1.  These appeals are brought against the orders of Ng J made on 14 May 2013. In a judgment in CACV 154 and 166 of 2012 handed down in open court on the same date as this judgment, we have set out the background leading to the orders of Ng J. We shall not repeat what had been said in that judgment.

2.  The substantive appeals will be heard on 29 and 30 October 2013, immediately after the hearing of the substantive appeals in CACV 154 and 166 of 2012.  We shall refer to the appeals in CACV 154 and 166 of 2012 as the Matrimonial Appeals and the appeals against Ng J’s orders as the Disclosure Appeals.  We shall adopt the same references to the parties as in our judgment in the Matrimonial Appeals. This judgment should be read together with our judgment in the Matrimonial Appeals. By two separate summonses dated 6 and 10 June 2013, the father (as well as the corporate defendant) and the husband applied for the substantive appeals in the Disclosure Appeals to be heard in camera.  The wife and the Secretary for Justice opposed the applications.  After hearing the parties in open court, we dismissed the summonses on 16 July 2013.  We now give our reasons for such decision.     

3.  As mentioned in our judgment in the Matrimonial Appeals, the question that the Court of Appeal has to decide in the Disclosure Appeals is whether Ng J was correct in granting access to the Director of Public Prosecutions in respect of the Disputed Documents which are in the court file in the matrimonial proceedings and giving leave to the wife to discuss the matter with the Director or the police.

4.  It is important to identify some differences between the Matrimonial Appeals and the Disclosure Appeals.  First, the Secretary for Justice is not involved in the Matrimonial Appeals.  He was brought into the matter by reason of the referral made by Saunders J in December 2011.  Second, whilst the father and the husband sought to challenge the propriety of the findings of and the referral by Saunders J in the Matrimonial Appeals, this is not and cannot be an issue in the Disclosure Appeals.  Arguments concerning the propriety of the findings and referral will be heard in the Matrimonial Appeals.  For the reasons we gave in our judgment in the Matrimonial Appeals, those arguments should be heard in open court.  By the time of the hearing of the Disclosure Appeals, that public debate would have taken place.  In any event, the Court of Appeal in the Disclosure Appeals should focus on whether Ng J was correct instead of considering whether Saunders J was correct.  Third, the documents that would be before the court in the Disclosure Appeals would be very different from those before the court in the Matrimonial Appeals.  As matter stands, the Secretary for Justice has no access to the Disputed Documents (and he is seeking access to the same by the application before Ng J).  Thus, the Disputed Documents will not be included in the appeal bundles in the Disclosure Appeals and there will not be any reading of those documents in the Disclosure Appeals.

5.  Counsel for the father and counsel for the husband advanced the same grounds in respect of their applications for hearing in camera in the Matrimonial Appeals to support their applications in the Disclosure Appeals.  For the reasons we gave in our judgment in the Matrimonial Appeals, those grounds cannot succeed in respect of the Matrimonial Appeals.  Likewise, insofar as those grounds are applicable to the Disclosure Appeals, we are not persuaded that they could support an order for the Disclosure Appeals to be heard in camera.

6.  Further, if one were to bear in mind the distinction between the two sets of appeals, we do not think the major grounds advanced in the oral submissions of Mr Thomas SC for the Matrimonial Appeals to be heard in camera are applicable at all in respect of the Disclosure Appeals. Mr Thomas placed much emphasis on the fundamental rights of the father in terms of presumption of innocence, right to a fair trial by an impartial tribunal.  His submissions in those respects were directed against the judgments of Saunders J.  There is no suggestion that Ng J had conducted the hearing of what we shall call the Disclosure applications improperly or with bias for or against any party.

7.  Mr Thomas however contended that the attacks against the judgments of Saunders J are relevant because that triggered off the application by the Director of Public Prosecutions.  Whilst that may be the position as a matter of history in this case, we do not think the focus of the Disclosure Appeals should be placed on the judgments of Saunders J.  In the determination of applications for papers to be released for purposes other than the resolution of issues in the actions or proceedings in which they are filed, as a matter of principle, there should not be any difference between a referral by a judge to the Director and a report by an ordinary citizen to the police which calls for criminal investigation[1].  It is the duty of the investigating authority (the police) and the prosecutorial authority (the Director of Public Prosecutions) to exercise their professional judgments independently in deciding how the matter should be investigated and whether any charges should be laid against any person as a result of the investigation.  And those are public duties.  Thus, in the present context, it is a matter of the professional judgment of the police (as advised by those in the Department of Justice) to decide whether there is a case which calls for criminal investigation at all and if so, whether the investigation should require seeking access to the Disputed Documents in the court file.  It is up to the investigating and prosecutorial authorities to decide, as matter of professional and independent judgments, how much weight they can attach to a complaint, be it a complaint in the form of referral by a judge or a complaint by an ordinary citizen.

8.  Thus, in the present context, it makes no difference whether the initiation of criminal investigation was triggered by the referral by Saunders J or by an interested party like the wife or a complaint from an ordinary citizen.

9.  In dealing with the Disclosure applications, the court should adopt the same approach.  There should not be any difference in the approach adopted for deciding whether access of papers should be granted to the Secretary for Justice simply because the referral was made by a judge as opposed to somebody else.  The weight to be attached to the referral, as in the case of a complaint from an ordinary citizen, is to be assessed by reference to the underlying reasons and evidence in support of the referral.

10.  With these in mind, we do not expect too much time being spent on dealing with the propriety of the judgments of Saunders J in the Disclosure Appeals.

11.  Another aspect flowing from the distinction between the two sets of appeals which has great significance for present purposes is the nature of the two sets of proceedings.  The Matrimonial Appeals are appeals in respect of the judgments of Saunders J in ancillary relief proceedings.  The Disclosure Appeals are appeals in respect of the judgment of Ng J on granting access to the Secretary for Justice to papers in the court file and granting leave to the wife to discuss with the police and the Department of Justice in the context of a criminal investigation.  As submitted by Mr Zervos SC and Mr Howard QC, there is a public interest in the proper conduct of such investigation. If the Court of Appeal were to hold that Ng J was wrong in granting access, the public has a right to know why such access should be denied. If the Court of Appeal were to hold that the wife should not be allowed to discuss the matter with the police or the prosecuting authority, this would prima facie be a curtailment of her right to report what she perceived to be a criminal wrong committed against her.  And it is plainly not conducive to the public confidence in the due administration of justice to have these matters debated behind closed doors. In our view, these factors (which are absent in the context of the Matrimonial Appeals) weigh heavily in favour of having the Disclosure Appeals heard in open court.         

12.  In light of our conclusion on the hearing of the Matrimonial Appeals in open court, there is absolutely no basis why the Disclosure Appeals should be heard in camera.

13.  For these reasons, the summonses of the father and the husband were dismissed.