Secretary For Justice v Ftcw And Others

CourtCourt of Appeal (Hong Kong)
Judgment Date10 Jan 2014
Citation[2014] 1 HKLRD 849
SubjectCivil Appeal
Judgement NumberCACV107/2013

CACV 101/2013 &

CACV 107/2013

(Heard together)




CIVIL APPEAL NOS. 101 and 107 OF 2013




FTCW 1st Defendant
SLKK 2nd Defendant
STL 3rd Defendant
OIL 4th Defendant
Before : Hon Lam VP, Kwan and Barma JJA in Court
Dates of Hearing : 29 and 30 October 2013
Date of Judgment : 10 January 2014




Hon Lam VP (giving the Judgment of the Court):

1. This judgment deals with the appeals by the 2nd to 4th Defendants against the order made by Ng J [“the Judge”] in HCMP 188 of 2012 on 14 May 2013. By that order, the Judge granted access to the Secretary for Justice to inspect and take copies of documents (identified as Categories 1 to 5 in his judgment of 14 May 2013) which had been filed or lodged in court or placed before the trial judge Saunders J in HCMC 5 of 2008 and HCA 566 of 2010. He also released the 1st Defendant [“the Wife”] from her implied undertaking in HCMC 5 of 2008 for the sole purpose of:

“(a) disclosing to the Secretary for Justice and the Hong Kong Police such of the Documents as may be required in the course of the criminal investigation, and specifically, all documents and correspondence relating to the ‘Agreement for the Grant of a Loan Conversion Option’ between the 2nd and 3rd Defendants dated 9th February 2006 (“2006 CLA”); and

(b) discussing the documents in (a) above with the Secretary for Justice and the Hong Kong Police in the course of the criminal investigation.”

2. These appeals were heard after CACV 154 and 166 of 2012, the appeals in HCMC 5 of 2008. This judgment is handed down on the same date as the judgment on those appeals. We shall not repeat what had been said in that judgment regarding the background of HCMC 5 of 2008 and HCA 566 of 2010. The application in HCMP 188 of 2012 was the aftermath of the referral by Saunders J to the Director of Public Prosecutions [“the Director”] of his judgment handed down on 1 December 2011. In that judgment, Saunders J found on the civil standard of proof that forgery, conspiracy to pervert the course of justice and acts of perjury had been committed by the 2nd Defendant [“the Husband”] and the 3rd Defendant [“STL”]. In our judgment in CACV 154 and 166 of 2012 [“the matrimonial appeals”], we have explained why Saunders J should not have made those findings. We also held that the referral is not appealable.

3. Though Saunders J referred his judgment to the Director, he did not at the same time grant access to the Director in respect of the documents under the custody of the court. Therefore, the Director had to apply to court for such access by an originating summons. The application originally came before Saunders J on 7 June 2012. At that hearing, the Husband and STL applied for Saunders J to be recused. For the reasons given in written Reasons for Decision of 6 July 2012, Saunders J acceded to that application. The matter was adjourned and heard by Ng J in February 2013.

4. The Wife had made an application for the release from implied undertaking for the purpose as mentioned above in HCMC 5 of 2008. After she was served with the Director’s application, she made a similar application in HCMP 188 of 2012. It was dealt with by Ng J at the same time when he heard the application by the Director.

A. The discrete nature of these appeals

5. Submissions have been advanced before us on the interplay between these appeals and the matrimonial appeals. Mr Thomas SC (appearing for STL) at one point went as far as submitting that if we were to set aside the referral by Saunders J which was the foundation of the application by the Director, we should not assist the Director by granting access.

6. Though we held in the matrimonial appeals that the findings by Saunders J on forgery, conspiracy and acts of perjury were flawed as a result of procedural irregularities, we did not deem it appropriate to set aside the referral. Once a referral had been made, the matter was in the hands of the Director who would exercise his independent professional judgment in deciding whether there should be any investigation and what steps should be taken in respect of such investigation. We would expect the Director and those responsible for criminal investigation to exercise the same standard of care and independent professional judgment in carrying out their duties by reference to the merits of the case and the available evidence irrespective of the source of complaints.

7. Likewise, the court would also apply its own professional and independent judgment in assessing the merits of the application by the Director for access to papers in the custody of the court.

8. We have not heard any suggestion that the allegations of forgery, conspiracy and perjury are frivolous and vexatious. Whilst we appreciate that STL and the Husband are justifiably aggrieved by the flaws in the proceedings before Saunders J (and we therefore deemed it necessary to correct that in our judgment in the matrimonial appeals), based on the materials before us we would not say that there is nothing to investigate in respect of these allegations.

9. As we see it, the setting aside of the findings by Saunders J is a separate and discrete question from the issue that we have to decide in the present sets of appeal: whether the Director should have access to the documents in the custody of the court. It does not follow from our setting aside of the findings that we must allow these appeals.

10. In light of our setting aside of the findings of Saunders J in the other sets of appeal, it would be right for us to state in this judgment that all the references below on perjury, forgery and conspiracy to pervert the course of justice are only references to allegations which are the subject matters of the investigation by the Director and the police. And all references to incriminating statements are references to potentially incriminating statements. They are not the findings of this court.

B. The jurisdiction to grant access

11. In their respective notices of appeal, the Husband and STL challenged the Judge’s conclusion that the court has inherent jurisdiction to grant access in respect of papers in the court’s custody. In the skeleton submissions of Mr Pointer QC (appearing for the Husband) and Mr Thomas SC (for STL), their challenges focused on the Judge’s reliance on Beck v Value Capital [1974] 3 All ER 437 to come to that conclusion.

12. Before the hearing of the appeal, this court referred counsel to the recent authority of R (Guardian News and Media Ltd) v Westminster Magistrates’ Court [2013] QB 618. In light of that authority, Mr Pointer properly accepted at the hearing it would be hopeless to contend that the court does not have inherent jurisdiction to grant access to third parties with regard to documents which formed part of the court process. He however advocated that the jurisdiction should not be exercised in the present case for a number of reasons, which we shall come to later.

13. In Guardian News at para 85, Toulson LJ said:

“In a case where documents have been placed before a judge and referred to in the course of proceedings, in my judgment the default position should be that access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong. However, there may be countervailing reasons. … I do not think that it is sensible or practical to look for a standard formula for determining how strong the grounds of opposition need to be in order to outweigh the merits of the application. The court has to carry out a proportionality exercise which will be fact-specific. Central to the court’s evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others.”

14. Mr Thomas did not seriously argue otherwise though he queried the source of the inherent jurisdiction. He submitted that the Guardian News case was about the trial process and the concept of open justice. He also drew attention to the need to conduct a balancing exercise and contended that there are countervailing factors in the present case. We would observe that the last point, like the submissions of Mr Pointer, go to the exercise of the jurisdiction rather than its existence.

15. In his written submissions, Mr Thomas also submitted that in view of the regulation of the subject by Order 63 there is no room for invoking or extending the inherent jurisdiction to cover the same topic. However, he also contended in the other parts of his skeleton submissions that Order 63 does not cover documents which had not been filed in the Registry and none of the documents in question (except what was identified as Category 4 documents) were so filed.

16. In our judgment, it is clear beyond peradventure that the court has inherent jurisdiction to control access to the documents placed in its custody in relation to legal proceedings, whether they are filed in accordance with the rules or produced as exhibits during the course of proceedings or simply lodged with the court or handed up to a judge by the parties for the purpose of the legal proceedings. Such control would include the power to restrict as well as the power to grant access. Whilst there are different rules governing specific areas of this power in the Rules of the High Court, e.g. Order 35 Rules 12 and 13 and Order 63 Rules 4 and 9, as well as the Matrimonial Causes Rules (Rule...

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