HCMC000005B/1997
HCMC 5 of 1997
IN THE HIGH COURT OF HONG KONG SAR
COURT OF FIRST INSTANCE
MATRIMONIAL JURISDICTION
____________________________
BETWEEN
YIP KU alias YIP KU CHEUNG Petitioner
AND
KWAN KUK LIN Respondent
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Coram: The Hon. Mr. Justice Waung in Chambers
Dates of Hearing: 16, 17 and 18 December 1998
Date of Delivery of Judgment in Court: 22 December 1998
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J U D G M E N T
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1. This is an application by the Petitioner Husband that the trial of the Ancillary Relief Application and Setting Aside Dispositions Application ("Trial") be conducted in Open Court and not in Chambers. Although the history of this matter had been the subject of previous judgments of this Court, it is convenient to set out briefly what the Trial is about before proceeding to consider the legal question of whether the Trial should be held in open court .
2. The Petitioner Husband and Respondent Wife (now in their sixties) married in China in 1958. Five children were born to the marriage, 4 sons and one daughter. The family came to Hong Kong in the early sixties. The Petitioner was apparently successful in establishing an electroplating business and the Respondent with considerable business acumen then transformed the family into a property empire, consisting of many companies owning large number of properties. By the early ninety nineties, the family was very wealthy even by Hong Kong standards, in terms if not of the disputed billion dollars plus at least several hundreds of million dollars. The Petitioner started a relationship with a Lady Friend in early ninety nineties and the marriage broke down. In 1993 the Wife with the help of the daughter set up within some six months two discretionary trusts ("Trusts") which in essence give her sole power and control. She transferred a large part of the family assets into these two Trusts. The Petitioner was persuaded by his daughter into signing away his interests in large number of companies and these interests together with the wife's interests were put by the Respondent into the Trusts. Divorce proceedings started in May 1996 and Decree Nisi was granted on 26th November 1997 followed by Decree Absolute in early 1998. There was a long, bitter and expensive history of litigation extending from the District Court in the matrimonial proceedings to a large number of High Court Actions concerning ownership of property companies (three Anton Pillar Orders were also made) to public prosecution in the Magistrate Court against the Petitioner for assault arising out of board room incident involving dispute about company affairs.
3. The Petitioner claims that the Respondent notwithstanding the recent property downturn is still worth many hundreds of million dollars whereas he has nothing and in fact owing large number of debts including a debt to the solicitor firm of Mason which is now the subject of Bankruptcy Petition returnable on 20th January 1999. The Trial started with Mr. Rodway, S.C. and Mr. Alan Ng appearing for the Petitioner instructed by Messrs Tommy Lai & Co. and with Miss Leong, S.C. and Mr. Douglas Yau appearing for the Respondent on the instructions of Messrs T.C. Ng & Co. On the 11th of December 1998 the legal team of the Petitioner left the Trial, having failed to secure from me an order granting interim lump sum of $6 million to fund the costs of the Petitioner's legal team. Since that time the Petitioner has been acting in person .
4. The Trial is in the nature of two side by side applications, one by the Petitioner and by the Respondent respectively against each other for the usual ancillary relief of lump sum or periodical payment or transfer of properties and the other application by the Petitioner to set aside a large number of dispositions of interests made by the Respondent and by him in respect of their interests in many property companies in favour of two Trusts. The Trial is very complex (the Revised Lists of Issues of both parties together run into over 90 pages) and will be slow and difficult having regard to the large volume of documentation and evidence (over 30 factual witnesses and a number of expert witnesses in the form of valuers and accountants), the fact that the Petitioner is acting in person and does not understand English and that the parties are in dispute over every aspect of the case with a history of animosity generated by the bitter litigation . The difficulty of the Trial can be readily seen merely from a glance at the following areas which the Trial will investigate into:-
(1) Business and financial activities of the Petitioner and the Respondent for the period from first arrival in Hong Kong until the termination of the electroplating business in 1984 and the size of the family assets and to what extent any buildup of substantial family wealth was by the efforts of the Husband and/or the Wife;
(2) Business and financial activities of the Respondent and the Petitioner for the period from 1984 to 1993 (during which there was huge buildup of family assets) and the size of the family wealth in 1993 before the injection into the Trusts and to what extent the buildup of the very large family wealth was contributed by the Wife and/or the Husband;
(3) Whether the Petitioner's signing away of the shares in number of companies (which were injected into the Trusts) were as result of undue influence by the daughter and the Wife and whether these dispositions should be set aside ;
(4) (a) The circumstances surrounding the setting up of the Trusts and the injection of very large assets into the Trusts and whether any of the dispositions of the Wife by transfers to the Trusts were done with the intention of defeating the claim of the Husband;
(b) What is the true nature of the Trusts (including the unit trusts thereunder) established by the Wife and to what extent the Wife in substance and reality has total control, power and disposal ability over the assets in the Trusts;
(c) Should the dispositions made by the Wife in favour of the Trusts be set aside ;
(5) Business and financial activities of the Wife and her companies from the 1992/3 up to now;
(6) Business and financial activities of the Husband and his companies from 1992/3 up to now;
(7) What are the present assets of the Wife, having regard to:-
(a) The setting aside or non-setting aside of 1993 dispositions;
(b) The matters under (1)(2) and (5) above;
(c) The question of large items of Wife's assets in the value of some $350 millions which could not be accounted for;
(d) The present value of all the properties and the companies having regard to the disputed valuations and accountants' views.
(8) What are the present assets of the Husband, having regard to:-
(a) The setting aside or non-setting aside of 1993 dispositions;
(b) The matters under (1)(2) and (6) above;
(c) The question of many items of Husband's assets in value of some $10 million which could not be accounted for;
(d) The present value of all the properties and companies having regard to the disputed valuations and accountants' views.
(9) What would be a fair financial provisions order for the Husband and for the Wife, having regard to:-
(a) The matters under (7) and (8) above;
(b) The other matters in Section 7 of the Matrimonial Proceedings and Property Ordinance ("MPPO").
5. In the course of hearing arguments in relation to this question of the mode of Trial (Open Court or Chambers), there were references made to the constitutional provisions, the common law authorities and principles, the statutory provisions and the particular facts of this case . I propose to consider the question of mode of Trial under the following headings:-
1. The different modes of Hearing;
2. Principle of open justice and the common law on mode of trial;
3. The constitutional situation including the Hong Kong Bill of Rights Ordinance;
4. The statutory provisions ;
5. The particular circumstances of the case and conclusion.
DIFFERENT MODES OF HEARING
6. To avoid confusion and to place the discussion in the proper context, it is necessary first to describe the different modes of hearing:-
(A) In Open Court .
(B) In Chambers ;
(C) In Camera ;
(D) In Open Chambers .
7. Open Court hearing is the general mode of conducting hearings in the United Kingdom and in Hong Kong. "In Court " was described in the White Book 1999 (para. 20A-446, Vol. 2) as being "in open court , in open view, in public, in a Court to which the public and the press are entitled to be admitted." This is the most familiar mode of hearing where the Judge and the lawyers are all robed, if not also wigged. Court proceedings take place in a courtroom.
8. "In Chambers " means in private, behind closed doors in proceedings which the public and press do not have a right to be admitted. It is a mode of proceeding commonly seen in the United Kingdom and in Hong Kong specially for the dispatch of interlocutory work. Chambers proceedings take place in the judge's private room, or in a courtroom used as if were his private room. Neither the judge nor the lawyers robe. In Hodgson v Imperial Tobacco Ltd. [1998] 1 WLR 1056, the Master of the Rolls corrected the previous erroneous concept of "in chambers " being associated with secrecy and total exclusion of public and explained at pages 1070-1 the mode of hearing "in chambers " as follows:-
"Proceedings in chambers however are always correctly described as being conducted in private. The word "chambers" is used because of its association with the judge's room so as to distinguish a hearing in chambers from a hearing in open court . While the public in general are normally free to come into and go from a court (as long as there is capacity for them to do so) during court hearings the same is not true with chambers hearings . Other than the parties and their representatives the public need the permission of the judge to attend.
.....
However it remains a principle of the greatest importance that, unless there are compelling reasons for doing otherwise, which will not exist in the generality of cases, there should be public access to hearings in chambers and information available as to what occurred at such hearings. The fact that the public do not have the same right to attend hearings in chambers as those in open court and there can be in addition practical difficulties in arranging physical access does not mean that such access as is practical should not be granted. Depending on the nature of request reasonable arrangements will normally be able to be made by a judge ... to ensure that the fact that the hearings takes place in chambers does not materially interfere with the right of the public, including the media, to know and observe what happens in chambers......"
9. "In Camera " means not only hearing in private behind closed doors where public and press are excluded but is a hearing intended to be in secret and where secrecy is necessary. A hearing in camera can therefore take place in a court room where the judge and the lawyers are all robed but nevertheless where the public and the press are deliberately excluded. It is very rare for any proceeding to be conducted in camera .
10. "In Open Chambers " is a new concept denoting the practice adopted by the Commercial Court and Patent Court in England (see Forbes v Smith [1998] 1 AER 974h) whereby although the court sits in chambers, the doors of the court are open, thereby allowing everyone to come and go. The comprehensive and forward looking Report of the Working Party on Civil Proceedings conducted in Private chaired by the Honourable Mr. Justice Nazareth ("Nazareth Report") recommended the adoption of the Open Chambers system having regard to the common law principle of open justice and Article 10 of the Hong Kong Bill of Rights .
OPEN JUSTICE PRINCIPLE AND COMMON LAW
11. The concept of open justice is embedded in the common law and was described in Coke:-
".... All causes ought to be heard, ordered and determined before the judges of the king's courts openly in the king's courts , whither all persons may resort; and in no chambers or other private places; for the judges are not judges of chambers but of courts" (2 Co. Inst. 103)"
In the classic and leading case on open justice of Scott v Scott [1913] AC 417 in which the Divorce Court heard in camera a nullity suit brought on the ground of impotence of the husband, the House of Lords affirmed the principle in the following terms:-
"I am of the opinion that every Court of justice is open to every subject of the King. I will deal presently with what have been called exception to that rule .... but I want in the first instance to emphasize the broad rule I believe to be the law...
There are three different exceptions commonly so called, though in my judgment two of them are no exceptions at all. The first is wardship and the relation between guardian and ward , and the second is the care and treatment of lunatics...neither of these, for a reason that hardly requires to be stated, forms part of the public administration of justice at all...... " (per Earl of Halsbury, at page 440-2)
Lord Shaw at page 477 described how civil liberty in the Kingdom has two direct guarantees:-
"... the open administration of justice according to known laws truly interpreted, and fair constructions of evidence, and the right of Parliament, without let or interruption, to inquire into, and obtain redress of, public grievances. Of these, the first is by far the most indispensable; nor can the subjects of any State be reckoned to enjoy a real freedom, where this condition is not found both in its judicial institutions and in their constant exercise."
12. In the case of AG v Leveller Magazine [1979] A.C. 440 involving contempt arising out of publication relating to proceedings, Lord Diplock said at pages 449-50 that:-
"As a general rule the English system of administering justice does require that it be done in public: Scott v Scott [1913] A.C. 417. If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspect: as respects proceedings in the court itself requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the application to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this.
However, since the purpose of the general rule is to serve the end of justice it may be necessary to depart from it where the nature or circumstances of the particular proceeding are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interests for whose protection Parliament has made some statutory derogation from the rule. Apart from statutory exceptions, however, where a court in the exercise of its inherent power to control the conduct of proceedings before it departs in any way from the general rule, the departure is justified to the extent and to no more than the extent that the court reasonably believes it to be necessary in order to serve the ends of justice."
13. The principle and importance of public justice was emphatically given its modern face by the Master of the Rolls in R v Chief Registrar, ex. P. New Cross Society [1984] 1 Q.B. 227 at 235:-
".... It is fundamental to British justice as we know it, and as our forebears have known it, that the Queen's courts are open to all. And when I say that they are open to all, I do not limit this to those who have business in the courts. The judges administer justice in the Queen's name on behalf of the whole community. No one is more entitled than a member of the general public to see for himself that justice is done. Nevertheless it is well settled that occasions can arise when it becomes the duty of the court to close its doors.
This problem was considered in depth by the House of Lords in Scott v Scott [1913] A.C. 417. The guidance which I get from their Lordships' speeches can be summarised as follows. The general rule that the courts shall conduct their proceedings in public is but an aid, albeit a very important aid, to the achievement of the paramount object of the courts which is to do justice according with the law. It is only if, in wholly exceptional circumstances, the presence of the public or public knowledge of the proceedings is likely to defeat that paramount object that the courts are justified in proceedings in camera . These circumstances are incapable of definition. Each application for privacy must be considered on its merit s, but the applicant must satisfy the court that nothing short of total privacy will enable justice to be done. It is not sufficient that a public hearing will create embarrassment for some or all of those concerned. It must be shown that a public hearing is likely to lead directly or indirectly, to a denial of justice ."(Italics supplied)
In Re Crook [1992] 2 AER 687, the Lord Chief Justice Lord Lane reaffirmed the same principle.
14. In Forbes v Smith [1998] 1 AER 973, Jacob, J. threw light on the real public nature of the Chambers hearing. This is a case where the proceeding was conducted in chambers at the specific request of the defendant and the defendant sought leave from the court to send copies of judgment to other interested persons. Jacob, J. said at page 974:-
"It is convenient to consider first the status of a normal judgment given in chambers , when there has been no specific request for a chambers hearing . A chambers hearing is in private, in the sense that members of the public are not given admission as of right to the courtroom . Courts sit in chambers or in open court generally merely as a matter of administrative convenience. For example, in the Chancery Division the normal practice for urgent interlocutory cases is for the matters to be heard in open court , the application being made by way of motion . Corresponding applications in the Queen's Bench Division are normally made in chambers. There is no logic or reason as to why exactly the same sort of case in one Division should be in open court and in another Division, in chambers.
Furthermore, until about ten years ago, appeals in the Chancery Division (appeals such as this, for example) were normally taken in open court . Now they are taken in chambers. The change was the result of an administrative decision, not a change in the law. Take other instances. The Commercial court sits in 'chambers' but with its doors open. So normally, does the Patents Court. Further, if there is an appeal from a judgment in chambers , it is heard in open court in the Court of Appeal. No one's leave is required for the judgment to be read out to the Court of Appeal.
These matters all strongly suggest that the status of chambers judgment should not depend upon questions of administration but on something more fundamental. The concept of a secret judgment is one which I believe to be inherently abhorrent. Only in cases where there is a cause for secrecy, such as in a trade secrets case, can it in general be right that a judgment should be regarded as a secret document. Even then it may be only a part of the judgment which needs to be secret. I conclude, in the absence of binding authority to the contrary, that when judgments are given in chambers they are not to be regarded as secret documents. There is in principle all the difference between a judgment given in camera (i.e. a judgment which the judge has specifically ordered, for cause, to be treated as secret) and a judgment given in chambers merely for administrative reasons."
The Judge then went on to consider the authorities and concluded that there was no binding authority to the contrary and that therefore normally a judgment , even when given in chambers, is to be regarded as a public document. It seems to me that although the common law principle of Open Justice was not discussed, the judgment implicitly proceeded on the basis that open justice principle requires all proceedings to be public and not in secret and that chambers hearing does not offend against the principle because it is really in the nature of a public or non-secret hearing as demonstrated by the fact that chambers judgment is a public document rather than a secret document.
15. The very recent case of Hodgson v Imperial Tobacco Ltd. [1998] 1 WLR 1056 demonstrated even more forcefully the true public nature of the chambers hearing . This is a claim against tobacco companies for causing cancer in which the court at a chambers hearing ordered that the parties and their legal advisers not to make any comment to the news media without the leave of the court. The Court of Appeal reversed the Judge on the media restriction order. The Master of the Rolls , Lord Woolf at page 1069 after commenting on the note in the 1997 White Book as not accurately reflecting the significance of chambers hearing, referred to the passage in Forbes v Smith about the lack of logic or reason as to why cases are in chambers or open court varying from Division to Division, then set out at pages 1069-70 what Sir Jack Jacob said in his Hamlyn Lecture:-
"The need for public justice, which has now been statutorily recognised, is that it removes the possibility of arbitrariness in the administration of justice, so that in effect the public would have the opportunity of 'judging the judges:' by sitting in public, the judges are themselves accountable and on trial. This was powerfully expressed in the great aphorism that, 'It is not merely of some importance but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done.' The opposite of public justice is of course the administration of justice in private and in secret, behind closed doors, hidden from the view of the public and the press and sheltered from public accountability. There are indeed two prevailing exceptions to the open public system of conducting civil proceedings, namely, (1) the hearing of pre-trial proceedings 'in chambers', at which only the parties and their advisers are entitled to be present and from which the public and the press are excluded, and (2) the hearing of proceedings or the trial or part thereof 'in camera', where the court or the trial judge orders that the court should be closed or cleared and the public and press excluded. Both these exceptions may be necessary in matters which require protection from publicity, such as matters concerning national security, those relating to persons under disability, i.e. minor and mental patients, or those relating to secret processes and other special matters, such as hearing before the Commissioners of Inland Revenue relating to tax affairs and such like matters. Subject to these exceptions, the principle of publicity should prevail throughout the whole range of civil proceedings. For this reason, the practice of hearing pre-trial applications in chambers should be abrogated....."
At page 1072, Lord Woolf concluded thus:-
"In relation to hearings in chambers the position may be summarised as follows. (1) The public has no right to attend hearings in chambers because of the nature of the work transacted in chambers and because of the physical restrictions on the room available but, if requested, permission should be granted to attend when and to the extent that this is practical. (2) What happens during the proceedings in chambers is not confidential or secret and information about what occurs in chambers and the judgment or order pronounced can, and in the case of any judgment or order should, be made available to the public when requested. (3) If members of the public who seek to attend cannot be accommodated, the judge should consider adjourning the proceedings in whole or in part into open court to the extent that this is practical or allowing one or more representatives of the press to attend the hearing in chambers . (4) To disclose what occurs in chambers does not constitute a breach of confidence or amount to contempt as long as any comment which is made does not substantially prejudice the administration of justice. (5) The position summarised above does not apply to the exceptional situations identified in section 12(1) of the Act of 1960 or where the court, with the power to do so, order otherwise."
16. The above survey of the authorities shows that the principle of open justice is not only of long historical standing but has always been held by the highest judicial authority to be of fundamental importance to our system of administration of justice and that any departure from it causing justice to be administered secretly and unexposed to the outside world requires the most compelling reasons which are now statutorily confined in England to the five cases of secrecy (hereinafter referred to as "Secrecy Category") under section 12(1) of the Administration of Justice Act 1960, the equivalent of which provision in Hong Kong is section 5 of the Judicial Proceedings (Regulation of Reports) Ordinance (Cap. 287). The question is to what extent constitutional and statutory provisions alter that principle.
CONSTITUTIONAL PROVISONS
17. Article 39 of the Basic Law of Hong Kong Special Administrative Region provides that the International Covenant on Civil and Political Rights ("ICCPR") as applied to Hong Kong shall remain in force and shall be implemented through the laws of Hong Kong. The Hong Kong Bill of Rights Ordinance ("BOR") applies the ICCPR. Article10 of the BOR provides:-
"All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law . The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interests of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice ; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interests of a juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children ."
It will be observed that it is a requirement of Article 10 of the BOR that every person in Hong Kong is entitled to a fair and public hearing by a court in any civil proceeding in which rights are determined. The entitlement to a right to public court is therefore clearly set out in Article 10 and this of course merely reaffirmed in a constitutional form the principle of Open Justice.
18. The usual effect of this constitutional provision is to render void and ineffective all contrary statutory provisions whether contained in an Ordinance, in a subsidiary legislation by way of Regulation or Rule. At the hearing of this Open Court application, due to the lack of time and the necessity for the Respondent to do extensive research on the precise scope of Article 10 having regard to the case law based on European Convention of Human Rights (see paragraph 14.8 of Nazareth Report on the curative effect of right of appeal), I directed that the question of Article 10 of BOR overriding Rule 81 of the Matrimonial Causes Rules be deferred until such time as the Court finds that it is necessary to decide that question for the purpose of the Open Court Application.
19. In so far as this judgment is concerned, I will proceed on the basis that the Article 10 concept of Open Justice is part of the constitutional arrangement of Hong Kong and that I can take account of Article 10 (on the provisional basis that it does not override Rule 81 of the Matrimonial Causes Rules) in considering the Petitioner's application for an Open Court Trial.
STATUTORY PROVISIONS
20. The present Trial is in the High Court of Hong Kong and not in the District Court, so my starting point on the mode of Trial must be the High Court Ordinance. Section 32A of the High Court Ordinance under the heading Proceedings in court and in chambers provides:-
"Business in the High Court of First Instance shall be heard and disposed of in court except insofar as it may, under this or any other enactment or in accordance with the practice of the Court, be dealt with in chambers."(Italics supplied)
It will be seen that the directive of the statute is that all High Court business, which of course would include a Trial such as this, shall be heard in court, namely in open court and then it gives permission for chambers hearing in exceptions such as where enactments so provide or there is such practice. The emphasis is therefore on open justice but permitting chambers hearing to take place in the limited exceptions. Primacy is therefore given to open court hearing.
21. I then turn to the other relevant statutes namely the Matrimonial Proceedings and Property Ordinance ("MPPO") and the Matrimonial Causes Ordinance ("MCO"). MPPO was enacted in Hong Kong in 1972 when it introduced a number of new statutory rights . MPPO replaced the financial provisions previously in MCO. The present Trial derives its jurisdiction to make the appropriate financial provisions orders from sections 4, 6, 6A, 7 and 17 of MPPO. There is nothing in any of these sections of MPPO which provides that the Court is to exercise its power not in Open Court but in Chambers or which even expressly permits the exercise of these statutory powers in Chambers. Section 32 of MPPO is the Rule making power of MPPO and it provides that:-
"The Chief Justice may make rules of court for the better carrying out of the purposes and provisions of this Ordinance."
It is accepted at the hearing that no relevant Rules had been made by the Chief Justice pursuant to section 32 of MPPO or more pertinently for the purpose of this judgment , that Rule 81 of the Matrimonial Causes Rules ("MCR") was not made pursuant to Section 32 of MPPO. It follows therefore that so far as the statutory provisions conferring the right of the parties to obtain from the court the relevant financial reliefs arising out of marriage are concerned, namely MPPO, there is nothing which permits the Court to hear the Trial in Chambers let alone which compels or restricts the power of the Court to hear ancillary relief in Chambers .
22. I next turn to MCO which, although prior to 1972 was a statute dealing with amongst other things with ancillary relief of limited categories (not including for example lump sum payment which only came in under MPPO) is not a statute concerned with financial rights of parties to a marriage or with the obtaining of such matrimonial financial right s. A glance at the contents pages of MCO confirms this view. There is nothing in MCO which expressly or impliedly permits or compels or sanctions the obtaining of the matrimonial financial right s by applications in Chambers. One therefore turns to Section 54 of MCO. Section 54 gives the Chief Justice the power to make rules for the:-
"better carrying out of the purposes and provisions of this Ordinance and in particular..... may make rules ... as to all matters of procedure under this Ordinance".
The purposes and provisions of the MCO are not matrimonial financial rights or the obtaining of matrimonial financial right s in matrimonial proceeding s. What is then the statutory authority for Rule 81 of MCR purporting to regulate the mode of obtaining the right of ancillary relief under MPPO. I am doubtful whether there is any such statutory authority .
23. Rule 81 is the key provision which Miss Leong relies on in objecting to the Open Court Trial. Rule 81 of the MCR is in the following terms:-
"(1) Where an application for ancillary relief or any question arising thereon has been referred or adjourned to a judge, the registrar shall fix a date and time for the hearing or the application or the consideration for the question and give notice thereof to all parties.
(2) The hearing or consideration shall unless otherwise directed , take place in chambers."
There is no dispute by Miss Leong that Rule 81 of MCR was created pursuant to section 54 of the MCO. My copy of Issue 12 of MCO in fact at page A6 shows immediately under the heading Matrimonial Causes Rules the words Cap. 179, section 54 indicating that the authority of these MCR are derived from section 54 of MCO. I should also note in passing that section 54A of MCO validating the Matrimonial Causes (Amendment) Rules 1982 (L.N. 324 of 1982) which provided that the particular amended Rules are deemed to be also made pursuant to section 32 of the MPPO in addition to section 54 of MCO made it even more clear that Rule 81 was made not pursuant to MPPO rule making power as page B827-8 of LN325/82 indicates that Rule 81 of MCR was not one of the rules in MCR purported to be amended in 1982.
24. From the above analysis, I conclude therefore that there is nothing in either MPPO or MCO which provides or compels or restricts the High Court to hear this Trial in Chambers. In fact having regard to the provisions of section 32A of the High Court Ordinance, the Court prima facie is directed to hold the hearing in Open Court .
25. In the course of the argument, reference was made also to section 3 and 5 of the Judicial Proceedings (Regulation of Reports) Ordinance (Cap. 287) (hereinafter referred to as "Report Ordinance") and to Practice Directions No. 27. As conceded by Miss Leong, Section 3 of the Report Ordinance has no application to this Trial and I therefore say no more about it. Section 5 of the Report Ordinance has relevance as to what proceeding can be regarded by the statute as sufficiently secret so that the reporting of it would attract the sanction of contempt. It is to be noted that the Secrecy Category in section 5 is limited to children, mental patients, national security, secret process, express prohibition by court where the court has power to do so. Section 5 for me therefore defines the limited categories which the statute considers requiring protection and ancillary relief is not one of these.
26. Practice Direction No. 27 restricting the right to report on chambers hearing matters has always been controversial (see Nazareth Report) and it is not necessary for me in this judgment to consider its provisions or its authority or its correctness. It is worthwhile however pointing out that this Practice Direction No. 27 ("PD27") seems to be inconsistent with the Report Ordinance and with the view of the true nature of Chambers hearing as expressed in Forbes v Smith andHodgson v Imperial Tobacco Ltd. For the purpose of this Judgment , the matter of reporting of Chambers hearing is really not the central question. The reporting of chambers hearing becomes relevant only when this Court decides that there is to be no Open Court hearing. But the question at issue now is whether the Trial is to be in Open Court and not in Chambers as is the usual practice.
27. There is no doubt that the usual practice both in the United Kingdom and in Hong Kong is for ancillary relief applications to be heard in Chambers . Miss Leong also refers me to Rayden. The information about the long standing practice of the Family Court to hear ancillary relief in Chambers coming from such a distinguished practitioner of matrimonial practice is of course of great value to this Court. I accept that it is rare if not unheard of for ancillary relief in Hong Kong to be heard in Open Court. But that is probably because no one has ever contested the right to have the ancillary relief heard in Open Court. The many authorities cited to me by Miss Leong relating to wardship cases or child abuse cases really do not assist this Court in deciding this question. After all, these are cases falling within the Secrecy Category and it is therefore not surprising that these situations call for hearing to take place with the necessary secrecy. The difficulty is, when the matter is contested, to decide what is the proper mode of Trial having regard to the particular circumstances of this case.
28. Before I start with the particular circumstances of this case, I will first deal with (still under the heading of statutory provisions ) a contention of Miss Leong that I am limited in the exercise of my discretion in favour of Open Court and that I can only decide for Open Court if there is a matter of public interest or public importance. The argument was advanced to me on the basis that Rule 81 of MCR applies and that under Rule 81 I have a discretion to decide that the Trial should take place in Open Court. I have indicated earlier why in my view Rule 81 has no relevance because of its lack of statutory authority under MCO. But even reading Rule 81 as it stands, its application might be said to be limited to a situation where the registrar fixes a date and time for the hearing and such hearing so fixed by the registrar would then be usually in Chambers. In this case, the Trial was fixed by Deputy Judge Lugar-Mawson in May 1998 and I see therefore no reason why Rule 81 must necessarily apply to a situation where the Matrimonial Judge of the High Court is asked to exercise its power to order this Trial to take place in Open Court. However on the basis that this Rule 81 is applicable to the present situation, and that I have a discretion by virtue of the words "unless otherwise directed " what is the scope of my statutory discretion .
29. As a matter of statutory construction , it seems to me that under Rule 81 I have unfettered discretion to order otherwise. The submission of Miss Leong amounts to saying that my discretion is fettered and can only be exercised in one situation and only one situation namely in a case which is of public interest or of public importance . I emphatically reject that submission because it is not based on any authority and because it goes contrary to the very language of Rule 81 and because it purports to fetter the discretion of the Court. It is of course well known that in certain cases such as leave to apply to the Court of Final Appeal (formerly to the Privy Council ), there is a requirement to show the appeal touches upon a matter of great and/or general public importance. But that requirement is manifested in the words of the relevant Ordinance or Order in Council. I do not see how in the absence of these words, I can possibly be justified in constructing Rule 81 in this narrow way limiting my discretion to such particular situation. This point advanced by Miss Leong has no merit.
PARTICULAR CIRCUMSTANCES OF THIS TRIAL & CONCLUSION
30. I now turn to the question of exercise of my discretion on the basis that Rule 81 of MCR applies and that I have a discretion to order Trial in Open Court as opposed to Trial in Chambers. On that basis, it seems to me that the following are some of the particularly notable features of this Trial which I could take into account in deciding the mode of Trial:-
1. This is a Trial in the High Court and not in the District Court where the bulk of ancillary relief applications are heard. In the course of a year, very few matrimonial disputes are referred to the High Court, numbering perhaps no more than five to ten and of these not all are ancillary relief disputes, many involving principally disputes about children.
2. This is the first and only known instance where one party desires Open Court hearing and the other party desires closed door hearing. There are no instances known where there had been such a dispute let alone where there was any adjudication of such dispute.
3. This is not an interlocutory application but really a trial with finality in relation to application such as lump sum payment and avoidance of dispositions. All final trials (unlike interlocutory applications ) in the High Court should be in Open Court and Miss Leong has not shown to me any other situation where substantial financial rights are affected with finality and where the Hong Kong Court has tried such dispute in secret and not in the open arena.
4. This is not a Trial where interests of young children are involved. The four sons and one daughter of the Petitioner and Respondent are all grown up and mostly in their thirties or above.
5. This is not a case falling within the Secrecy Category.
6. This is a case where there is a serious dispute of undue influence and allegation of bad faith and inequitable conduct on the part of the Wife and Grown Up Children. Serious allegation of misconduct ought to be investigated in Open Court and not in a secret room shrouded from public view.
7. A major part of the Petitioner's case is that the 1993 dispositions were made by the Wife with the intention of defeating his claim and that therefore these dispositions ought to be set aside . This is the sort of dispute (akin to fraudulent trading) which is particularly appropriately tried in Open Court or not suitable for trial in secret or in private.
8. This is not an ordinary family money dispute involving one house and one ascertainable income. The nature of the history of the business relationship in this case, as the parties agree and I pointed out time and again during the hearing, is one of the heaviest kind of commercial or company action that I have seen. We are talking about very large number of companies and very large number of properties with huge amount of documentation concerning the web of activities. Even by the vast experience in matrimonial practice of Miss Leong and Mr. Rodway who was formerly the leading counsel for the Husband Petitioner, this is a business fight on a truly large scale.
9. The number of High Court actions still extant merely evidence the nature of the business dispute. High Court Actions are not tried in secret.
10. The public face of the dispute had already been well known to Hong Kong when the Petitioner was prosecuted in the Magistrate Court for assault arising out of the business dispute. It is in fact the evidence of the first witness of the Trial, Mr. Mui who was a former employee out of touch with the Petitioner for over 10 years that he came to give evidence as result of reading in the Chinese paper the prosecution of the Petitioner in the Magistrate Court.
11. This is a case where the Petitioner is conducting the Trial in person against a leading Counsel and a powerful legal team.
12. This is a case where the Petitioner acting in person has no knowledge of English and when some 40 bundles are in English.
13. This is a case where the Trial by necessity has to be conducted partly in English and partly in Chinese.
14. This is a case where the Petitioner in person will have to cross-examine his five grown up children in addition to his former Wife.
15. This is a case which in addition to its being a heavy commercial action is also very complex by reason of its span of many areas of law (commercial, company, trusts and equity, matrimonial ) and the case will take up many, many weeks of Trial time.
16. This is a case where the sums involved are large.
17. This is a case where many experts will be giving evidence including accountants and valuers and the technical aspects of their evidence will impose additional difficulty in particular for the Petitioner.
18. This a case where the exercise of the Court's investigative duty under Rule 77(5) of the MCR will be particularly difficult to discharge and there is a duty on the Court to consider what is the best mode of Trial in order to discharge such a duty.
19. By the uniqueness of this case in all its many aspects, this is a case where the administration of the justice in respect of the matrimonial jurisdiction of the court will be and ought to be closely scrutinised by the community of Hong Kong.
31. Miss Leong has submitted to me that I should not take into account many of the matters which I have set out earlier. She in fact urged me to take heavily into account that this is really only a family matter, that it is unprecedented for ancillary relief to be heard in Open Court, that the evidence will deal with many intensely personal and private issues such as Petitioner's black market activities in China, the parties' humble start in Hong Kong, the gambling activities of the parties, the adultery of the Petitioner and the incident with Filipina maid, the allegations of forgery, the question of tax evasion and tax investigation, matters relating to the Trusts and allegations against third parties in connection with the Trust and many other factors which should point to the wisdom of holding the Trial in Chambers . I of course take into account what Miss Leong said in favour of Chambers hearing and against Open Court. But I do not believe it is right that I should ignore all the other factors which I had listed earlier. Nor can I fail to give special and serious consideration to the principle of Open Justice under common law and to Article 10 of the BOR nor can I ignore the primary function of the Court under the High Court Ordinance to try all final disputes primarily by means of Open Court trial.
32. In the course of the argument, I asked Miss Leong, in reference to what Lord Woolf said in the Hodgson case about giving ready access to the public in Chambers hearing (see page 1071C-F), on what basis could this Court ignore and refuse to give public access. She said to me, without attacking the correctness of the Hodgson's judgment , that I should not give public access because the ancillary relief is intensely private and personal. But I do not see how Miss Leong really could hold on to her contention without attacking the correctness of Hodgson. If Hodgson is correct and I must say that I have no doubt that it is, then it would seem that only in the most exceptional ancillary relief cases can the Court refuse to grant public permission to attend the Chambers hearing or to provide public information about the hearing and once that position is reached, then there is in substance little difference between Trial in Chambers (with ready good access) and Trial in Open Court . With the greatest respect to Miss Leong, it seems to me that she and Mr. Rodway both live in a different world where the coziness of matrimonial practice can be cocooned forever and the mystery of the matrimonial business of the court is shielded totally from public view. (Difficulty of access to Hong Kong matrimonial judgments is one of the reasons I understand of the long delay in the publication of the Hong Kong Halsbury Volume on Family Law). This is not the world of Jacob, J. or of Lord Woolf or of the High Court business that I know and I regret that I am not sympathetic to her vision of how matrimonial ancillary relief disputes should be resolved. In my judgment, the matrimonial jurisdiction of Hong Kong has lived far too long in a world which is not in accordance with the fundamental principle of open and public justice and it is time for major changes to take place.
33. I have no doubt that in all the circumstances, taking all these matters into account, notwithstanding what is in Rule 81 of MCR or the long established practice of holding ancillary relief applications in Chambers , that with this particular Trial I should order the Trial to be held in Open Court . There is nothing in the material before me and with my knowledge of the case which persuade me that a public Trial "is likely to lead directly or indirectly to a denial of justice" in the words of Sir John Donaldson in the New Cross Society case. In my judgment, the particular circumstances of this case are so compelling that I will feel that I have failed in my duty were I not to order an Open Court Trial. The Petitioner who has so many hurdles to overcome and so many mountains to climb is entitled at the least to be given the public and open scrutiny that this long and difficult matrimonial financial claim Trial will be conducted fairly, justly and according to the law. The Petitioner's application for Open Court Trial is granted.
William Waung
Judge of the Court of First Instance, High Court
Representation:
The Petitioner in person.
Miss Jacqueline Leong, S.C. & Mr. Douglas Yau for the Respondent instructed by Messrs T.C. Ng & Co.
Remarks: