Tcwf v Lkks

Judgment Date29 July 2013
Subject MatterCivil Appeal
Judgement NumberCACV166/2012
CourtCourt of Appeal (Hong Kong)
CACV154/2012 TCWF v. LKKS

CACV 154/2012 &
CACV 166/2012

(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS 154 and 166 OF 2012

(ON APPEAL FROM HCMC NO 5 OF 2008)

____________

BETWEEN

TCWF Petitioner
and
LKKS Respondent
and
STL 2nd Intervener
OIL 3rd Intervener

____________

Before : Hon Kwan and Lam JJA in Court
Date of Hearing : 16 July 2013
Date of Judgment : 16 July 2013
Date of Reasons for Judgment : 29 July 2013

_________________________

REASONS FOR JUDGMENT

_________________________

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

1. In this judgment, we shall refer to the parties as the wife, the husband and the father. The two appeals against the orders of Saunders J on 1 December 2011 and 6 July 2012[1], CACV 154 of 2012 being an appeal by the father and CACV 166 of 2012 being an appeal by the husband, shall be heard together in October 2013. We have two summonses before us:

(a) A summons dated 11 June 2013 by the husband seeking the hearing of the appeal to be conducted in chambers (not open to the public). He also seeks directions as regards indices and content of the appeal bundles; and

(b) A summons dated 25 June 2013 by the father seeking some parts of the appeal to be conducted in chambers (not open to the public). The summons identified the parts which should be so heard as follows:

“(i) §§25-139 of the judgment of the Honourable Mr Justice Saunders in HCMC 5/2008 dated 1 December 2011 as reissued on 6 July 2012 (the “Main Judgment”);

(ii) §§55-103 of the Reasons for Decision the Honourable Mr Justice Saunders in HCMC 5/2008 dated 6 July 2012 (the “Barrell Judgment”); and

(iii) §§145-161, §§163-174, §§175-193, §§194-197, §§198-199, §§200-235, §§256-289 and §§336-348 of the Main Judgment, which the Honourable Mr Justice Saunders considered to be commercially confidential information (the “Commercially Confidential Information”); and

(iv) the disputed documents as defined in the judgment of the Honourable Mr Justice Ng in HCMP 188/2012 dated 14 May 2013 (the “Disputed Documents”)”

2. We did not see any need to read in public the contents of the documents or the controversial parts of the judgments of Saunders J for the purpose of the arguments before us and, despite Mr Thomas SC’s and Ms Cheng’s submissions, we see no good reason why these summonses should not be heard in open court. The mere fact that this was not the hearing of the substantive appeal does not justify a hearing in camera. As has been emphasized in the past, there is a strong public interest in open administration of justice and if a hearing is to be conducted in camera, the public has a right to know why it is so. As such, the public has an interest in following the debate in an application for hearing in camera and the court should only exclude members of the public from it when it is necessary to do so in circumstances where conducting such hearing in open court would defeat the purpose of the application. Since we were not satisfied that it would be necessary to read the contents of the controversial materials in dealing with the summonses, and we were confident that counsel would exercise good judgment in that regard, we directed that the summonses be heard in open court.

3. For reasons given below, after hearing all the submissions, we came to the conclusion that the appeals shall be heard in open court. We now give reasons for coming to such conclusion.

4. The orders of the Judge were made in respect of ancillary relief proceedings in HCMC 5 of 2008. The order of 1 December 2011 was the order providing for the substantive relief granted to the wife. The order of 6 July 2012 was made pursuant to what the parties called the Barrell Judgment. In the appeals, the husband and the father seek the following orders as set out in their respective notices of appeal,

(a) In CACV 154, the father seeks:

“1. An order that the Appellants should have leave to appeal the judgment and order, if such leave is required.

2. That the judgments of Mr Justice Saunders shall remain private.

3. A stay on the order pending the appeal.

4. That the Judgement and Order should be set aside and this Court do substitute that Order with its own Order and/or order a retrial before a Judge other than Deputy Judge Saunders.”

(b) In CACV 166, the husband seeks:

“1. The appeal be allowed.

1A. The award to the Petitioner (“the Wife”) be set aside, and the matter be remitted to the Court of First Instance for re-trial.

2. The award to the Wife of HK$1,470.4 million be set aside, and an award in the sum as is apt be made in its place.

3. The orders made consequential upon that award of HK$1,470.4 million be set aside, and new consequential orders as are apt for the correct award be made in their place.

4. The referral of the Judgment and the Supplemental Judgment to the DPP be revoked.

5. The Judgment and the Supplemental Judgment shall remain private and not be published.

6. The Wife pay the Husband’s costs of the Appeal, with no order as to the costs below.”

5. To understand the bases for the applications to have the appeals conducted in camera, it is necessary to refer to some findings by the Judge in his judgment of 1 December 2012. As explained below, the fact that the judgments below had not been published cannot prevent this court from referring to it in a judgment handed down in open court. We shall briefly refer to those findings below. Before we do that, we need to set out some backgrounds.

6. Unlike other first instance hearings of ancillary relief, the ancillary relief proceedings in the present case were, though heard in chambers, also open to public. There had been an action by the father suing the wife for fraud, first by way of an action in England, and then in Hong Kong in HCA 566 of 2010. That action was directed to be tried together with the wife’s s 17 application in HCMC 5 of 2008 to set aside what is called the “2006 CLA”. On 17 September 2010, the Judge directed that such trial would be conducted in open court. As regards the other parts of the ancillary relief proceedings, the Judge directed that they would be heard in chambers, open to the public. The Judge explained why he took such unusual course in his Reasons for Ruling of 27 September 2011. Further background and reasons can be found in the Judge’s Ruling on 17 September 2010. Those reasons set out why the case called for hearing to be conducted openly. Whilst the reasons were given in chambers (not open to public), we are of the view there is no good justification now for withholding these from the public. We asked the parties whether there were any reasons why these reasons should not be made public. There was none. We would append these two documents (with the names of the parties anonymized in the usual manner) to this judgment and they would be handed down as part of this judgment, as such they would enter into the public domain as a judgment handed down in open court.

7. The trial of HCA 566 of 2010 and the s 17 application was scheduled to take place on 23 February 2011. When the matters came on for trial, what happened was described by the Judge at para 7 in a summary of his main judgment in HCMC 5 of 2008 which he had released to the public on 1 December 2011:

“7. The wife’s s 17 application, the father’s fraud proceedings and the wife’s conspiracy counterclaim came on for trial before the Judge in February 2011. The husband and the father consented to the setting aside of the dispositions. The father discontinued the fraud claim, and the husband and the father consented to judgment against them in the wife’s conspiracy counterclaim, with the assessment of damages reserved to be tried later. The husband and the father agreed to pay the wife’s costs in respect of all those proceedings, on an indemnity basis.”

8. Notwithstanding that, submissions on the 2006 CLA were advanced in the ancillary relief when the proceedings were heard in October and November 2011. At that hearing, which was open to the public (apart from the part dealing with other matters), allegations of serious nature were advanced in respect of the 2006 CLA. In the judgment of 1 December 2011, the Judge made findings against the husband and the father in respect of the 2006 CLA, which was summarized at para 9:

“9. The court held that, judged on the civil standard of proof, that is on the balance of probabilities, the husband and the father had forged the 2006 CLA, which they had then used to attempt to defeat the wife’s claim in ancillary relief. The court further held that the husband and the father were likely to have committed perjury in numerous affidavits in relation to the 2006 CLA, in the proceedings. The court held that the husband and the father were persons whose evidence was not capable of belief.”

9. The Judge also directed the Registrar to forward a copy of the judgment of 1 December 2011 to the Director of Public Prosecutions for such action as he considers appropriate.

10. The proceedings, including the allegations and finding by the Judge in respect of the 2006 CLA, were widely reported in local newspapers. Thus, these allegations and finding had already entered into the public domain.

11. In the appeals, one of the main issues is whether the Judge was correct to make such finding. In his Amended Notice of Appeal, the father alleged that the Judge was biased and that he was misled by the Judge in respect of the relevance of the allegations pertaining to the 2006 CLA. He said he had not been given a fair opportunity to defend himself with regard to those allegations. Similar criticisms are advanced by the husband in his Amended Notice of...

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