Cwg v. Mh and Others

HCMP 643/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 643 OF 2012

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D E C I S I O N

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Introduction

1.The parties have been involved in protracted litigations for some time, the main one being the present proceedings.  For ease of reference, I shall continue to refer to the applicant and the 1^st respondent as respectively the Wife and the Husband although they have now been divorced for some time.

2.Presently before this court are two applications made by R5, the Husband’s father, and R6, a company controlled by D5 (collectively “Applying Rs”), for leave to use the Main Judgment and two decisions of this court in these proceedings.  These applications are opposed by the Husband, R2 and R3 (collectively “Opposing Rs”).

3.The Wife and R4 remain neutral and/or they have no objection to the Applying Rs’ applications.  They were absent at the hearing.

Background

4.By way of brief background, the Main Judgment was given by this court over 3 years ago after a lengthy trial in relation to the Wife’s Part IIA Application for financial relief (“Main Trial”).  The Husband’s appeal against the Main Judgment was dismissed by the Court of Appeal at end of June this year, save to a limited extent.  R3’s appeal and the Wife’s appeal were dismissed at the same time.  R2’s appeal was dismissed earlier over two years ago under the Hadkinson principles and reasons were handed down by the Court of Appeal at end of June 2014[1].

5.At the commencement of the Main Trial, there was an application for R2 to be absent.  This court ruled that if R2 failed to attend the trial for cross examination, her evidence in all her affirmations and her witness statement would be excluded.  Reasons were subsequently handed down for the ruling on 16 October 2012 (“Reasons for Ruling”).

6.An order nisi for costs was made in the Main Judgment against the Husband and R2 who had applied for the order nisi to be varied.  So far as the Applying Rs were concerned, this court ordered their costs arising out of their being joined be paid by the Husband (“Costs Order”). A ruling was handed down in September 2013 (“Variation of Costs Ruling”).  The Husband has also appealed against the Costs Order and is awaiting the judgment from the Court of Appeal on this part of his appeal.

7.There has been no stay of execution of the Costs Order.  The Applying Rs’ costs were taxed and an allocator was issued and certified on 25 September 2014 for the taxed amount of some HK$1.7m.  The Husband failed to pay.  This resulted in the Applying Rs issuing a statutory demand under the Bankruptcy Ordinance, Cap 6, against the Husband on 13 April 2016 under HCSD 19/2016 for the taxed costs and accrued interest, totaling by then almost HK$2.2m (“Bankruptcy Proceedings”).  The Husband has on 25 April 2016 issued an application to set aside the Applying Rs’ statutory demand (“Setting Aside Application”) and a hearing is now fixed on 7 December 2016.  On the same day, in fact the Husband issued a summons for stay of execution of the Costs Order pending the result of the Husband’s appeal, but this was by consent adjourned to a date to be fixed and no date so far has been fixed.

8.Separately, as mentioned in the Main Judgment, the Applying Rs had issued the HC Action in 2011, namely HCA 857/2011 against the Husband, R2 and MVI (Panama) claiming that about 6,251 shares in the Macau Corporation and 45,050 shares in ST Shipping were held in trust for R5 by R2 and/or MVI(Panama).  

9.The HC Action proceeded to trial before Chow J who handed down a judgment in September 2016 dismissing the Applying Rs’ claims and ordered, among other things, (i) the Applying Rs to pay R2’s costs of the HC Action; (ii) on nisi basis, that there be no order as to costs as between the Applying Rs and the Husband and MVI (Panama), and (iii) no order as to costs as between the Applying Rs and all the 3 defendants in relation to the summonses for security for costs.

10.The Applying Rs have applied for leave to appeal against the costs order, and I understand that the hearing has now been fixed before Chow J on 16 May 2017.  In the meantime, the Applying Rs have also lodged an appeal against Chow J’s judgment.

11.The Main Trial, and the hearings leading to the Variation of Costs Ruling and the Reasons for Ruling were all held in chambers not open to public. 

12.The Applying Rs issued two summonses to apply for:

(i)   The release of the Main Judgment and the Variation of Costs Ruling (collectively “2 Judgments”) for use in the Bankruptcy Proceedings on the ground that they pertain to enforcement proceedings (“1^st Summons”).

(ii)   The release of the Reasons for Ruling for use in the HC Action (“2^nd Summons”).

13.This decision is in relation to the 1^st Summons only.  I have indicated at the hearing that the decision of the 2^nd Summons is deferred pending all the parties’ comments on uploading all the judgments in these proceedings onto the Legal Reference System.

14.Mr Alex Lok appeared for the Applying Rs and Mr David Pilbrow SC and Mr Jonathan Aj-weng appeared for the Opposing Rs at the hearing before this court.

General Principles on Open Administration of Justice

15.The leading case on open administration of justice is ATV v Communications Authority [2013] 3 HKC 62 where the Chief Judge of High Court restated the 10 basic principles on open justice, in particular the 5^th principle which sets out matters which do not themselves justify any restriction on open administration of justice[2].  In TWCF v LKKS (Hearing of Appeal in Camera) [2013] HKFLR 456, the Court of Appeal again set out those matters in the 5^th principle and added that in respect of cases heard in the Court of Appeal, the mere fact that the proceedings at first instance were heard in private do not by themselves justify any restriction on open administration of justice[3].  Further, as pointed by Lam JA, as he then was, where an appeal against a first instance judgment on ancillary relief is brought to the Court of Appeal, it is invariably heard by the Court of Appeal in open court.

16.Mr Lok and Mr Pilbrow had respectively referred this court to statutory provisions in relation to publication of judgments in matrimonial and family proceedings.  

17.As a start, the Judicial Proceedings (Regulation of Reports) Ordinance, Cap 287 (“JPRRO”) was brought in to amend the law relating to contempt of court and to regulate the publication of reports of judicial proceedings in such manner as to prevent injury to public morals[4].

18.In particular, s 3(1) of JPRRO states it shall not be lawful to print or publish or cause to procure to be printed or published any particulars “in judicial proceedings for dissolution of marriage, for nullity of marriage, or for judicial separation” other than those set out under s 3(1)(b).

19.Mr Pilbrow had referred this court to Clibbery v Allan [2002] Fam 261 although he mainly relied on certain passages of Dame Butler-Sloss P who gave the leading judgment.  In that case, Thorpe LJ had in fact in  his judgment set out the historical background leading to the passage of the Judicial Proceedings (Regulation of Reports ) Act 1926, and had said that no doubt the aim of the 1926 Act was “to strike a balance between the principle of open justice and the need to kerb reports from the divorce court for the protection of public morality”[5].  He then went on to set out the developments since the 1926 Act, including the Administration of Justice Act 1960 which introduced s 12 (1), with further restraints relevant to family proceedings.

20.Our section 3(1)(b) of JPRRO is similar to s 1(1)(b) of the 1926 Act, and refers to “judicial proceedings for dissolution of marriage, for nullity of marriage, or for judicial separation ...”. Further, our s 5(1) of the JPRRO is similar to 12(1) of the 1960 Act.

21.In Clibbery v Allan, after setting out the developments of the 1926 Act, Thorpe LJ had expressed his opinion as to whether s 1(1)(b) of the 1926 Act would in fact apply to ancillary relief proceedings, and although he said his opinion must remain provisional, he said he would prefer to rest the regulation of the parties to ancillary relief proceedings in relation to publishing of information in those proceedings on their duty to the court, rather than on s 1(1)(b) of the 1926 Act[6].  Thorpe LJ had further said that even if s 1(1)(b) did apply, it would not prohibit either party in that case from selling or otherwise releasing the judgment in reliance on the exception provided by s 1(1)(b)(iv)[7].

22.The “duty to court” referred to by Thorpe LJ was founded on the concept of the implied undertaking.  As earlier explained by him in his judgment, in civil proceedings restrictions on dissemination of litigation material for ulterior purposes would usually put on the basis of an implied undertaking not to do so, and that the concept of the implied undertaking was founded on the duty to the court[8], and that this would apply to the area of ancillary relief. 

23.I share the same views as Thorpe LJ.  In any event, the present proceedings concern the Wife’s application for financial relief under Part IIA of the Matrimonial Proceedings and Property Ordinance, Cap 192 (“MPPO”).  Part IIA applications are not those judicial proceedings referred to under s 3(1)(b) of JPRRO.  They are in my view, not really “ancillary relief” applications in that they are applications begun only with leave of court, and further by way of an originating summons, and are therefore not issued as “ancillary to” or under any judicial proceedings set out in s 3(1) (b).  

24.It is further not clear whether s 3(1)(b) covers only those judicial proceedings in Hong Kong or in other jurisdictions as well, and there were no submissions from counsel on this issue.  In the present case, the Husband obtained the divorce in Thailand.  There was no evidence from the Husband or any of the Opposing Rs that there was/is any equivalent of JPRRO in Thailand.  I am thus of the preliminary view that s 3(1)(b) of JPRRO may not be applicable to Part IIA applications.  Further, even if it is applicable, as the Applying Rs are now seeking release of judgments of the court, they could avail themselves of the exception in s3 (1)(b)(iv), as pointed out by Thorpe LJ[9].

25.As for s 5 of the JPRRO, there was no evidence before this court that any of the exceptions under s 5(1) would apply, and therefore the publication of information relating to these proceedings shall not of itself be contempt of court.

26.Mr Pilbrow had referred this court to rule 81 of the Matrimonial Causes Rules, Cap 179A (“Rule 81”), and also Y and K [1993] 3 HKLRD 650.  This case concerned an appeal from the decision of the lower judge, who decided that the ancillary relief proceedings between the husband and the wife in that case which commenced in chambers should continue in public, on the basis that the rules relating to ancillary relief in the former MCR then in force, namely rules 68-84 were ultra vires, in particular Rule 81, in that the section under which they were originally made, namely s 54 of the Matrimonial Causes Ordinance, Cap 179 had been replaced by MPPO and so those rules no longer had a statutory base, and/or relying on the general principle of open and public justice, the judge was of the view that the proceedings should be heard in open court. 

27.On appeal, it was held, among other things, that Rule 81 was not ultra vires and that under s 32 of MPPO and s 28(1) of the Interpretation and General Clauses Ordinance, Cap 1, the effect of the MCR was preserved[10], and that on the basis that Rule 81 was valid, the judge was wrong in rejecting the court’s practice and in deciding to exercise his power under Rule 81(2) to order a trial in open court, the judge was plainly wrong[11].

28.The issue in Y v K was whether the judge was correct in directing under Rule 81(2) that the ancillary relief hearing in the circumstances of that case should be held in open court, instead of in private in chambers under Rule 81(1).  It was not in relation to publication of judgments or release of implied undertaking.

29.Rule 81 applies to an application for ancillary relief, and only concerns the mode of hearing of such an application.  As I have said, in my view, Part IIA applications are not really ancillary relief applications.  Having said this, I am prepared to accept that Part IIA applications are analogous to ancillary relief applications, and that they are usually heard in chambers not open to public. 

30.However, as emphasised by Dame Butler-Sloss P in Clibbery v Allan, the starting point must be the importance of the principle of open justice.  Further, the hearing of a case in private does not, of itself, prohibit the publication of information about the proceedings or given in the proceedings[12].  Thus, Rule 81 or the fact that a hearing was in chambers not open to public, as the hearings in the present proceedings, would not of itself prohibit the publication of information about these proceedings.

31.As for Rule 121 of the Matrimonial Causes Rules (“MCR”), this rule appears to apply only to “matrimonial proceedings” as defined in MCR, which definition is repeated in PD 15.12.  As provided in paragraph 4(11) of PD 15.12, Part IIA proceedings fall within “family proceedings” as defined therein.  It appears to this court that again arguably Rule 121 is also not applicable to the present proceedings.

32.To summarise, I am of the view that the statutory provisions in the JPRRO or the MCR do not, on the face of it, prohibit the Applying Rs from printing, publishing, or causing or procuring to be printed or published the Main Judgment, the Variation of Costs Ruling or the Reasons for Ruling.

33.Further, it has been said in TCWF v LKKS (hearing of Appeal in Camera), in the matrimonial context, the practice in Hong Kong is that even though an appeal is heard in open court, the names of the parties are anonymized in the daily cause list and in the judgment of the court, and this is particularly so in children cases, which gives some protection to the privacy of the parties.  However, as pointed out by the Court of Appeal and referring to sections 3 and 5 of the JPRRO, unless the court grants a specific injunction, it is not against the law to publish the names of such parties if their identities were known, and that this is the position even if the proceedings take place in private[13].

34.The publication of judgments in family proceedings is now provided for by PD 15.15.  Part IIA applications fall within “Concerned Proceedings” under PD 15.15.  PD 15.15 provides specifically for (a) mode of hearing, (b) anonymisation of the parties, and (c) publication of judgments of Concerned Proceedings in both matrimonial and family proceedings. In particular, paragraph 2 sets out those proceedings listed in Schedule 2 which would not usually be open to the public having regard to Article 10. 

35.Part IIA applications, which are under s29AB of MPPO, have for some reasons not been set out under the Provisions of Schedule 2 of PD 15.15 nor Schedule 1 of PD 15.15, but as I have said earlier, I accept they are analogous to ancillary relief applications, and that such applications would usually be heard in chambers not open to public.

36.In any event, whether the Part IIA applications should be heard in public or not, paragraphs 21 and 22 of PD 15.15 now provide as follows:

“21. All judgments in Concerned Proceedings, whether in hearings open to the public or not, should normally, in line with Article 10, conceal the identities of the parties and any children who are mentioned. Accordingly, the names of the parties and children and any part of the judgments which may reveal their identity should be properly redacted unless there are good reasons not to do so.

22. In light of the considerations of §21 above, all judgments of the Court of First Instance and the Family Court whether made in hearings open to the public or not will be published (if at all) in the following manner:

(a) Copies of the judgments with initial redaction made by the Court will be released to the parties upon handing down. Unless otherwise directed by the Court and subject to the steps below, the judgment will in due course be released for publication.

(b) If any party to a hearing which is not open to the public objects to the publication of the judgment, or, if any party considers that further redaction is required, such a party should write to the Court within 14 days upon handing down of the judgment.

(c) After receiving the party’s view on the publication or redaction, as the case may be, the Court may further redact the judgment as it deems fit. Thereafter, the judgment may be released for publication in the usual manner if the Court so directs.

(d)     In the event that no request for further redaction is made within 14 days after handing down of the judgment, or, in the case of a hearing which is not open to the public, no objection to publication of the judgment is received, the parties shall be taken to have no objection to the publication of the judgment as initially redacted by the Court. The judgment will then be released for publication in the usual manner.”

37.PD 15.15 came into effect on 2 July 2015, shortly after the publication of the Final Report on the Review of Family Procedure Rules which followed consultation of the Interim Report.  As stated in paragraph 248 of the Final Report, the Family Court has been adopting the practice of publishing anonymised judgments delivered after a trial of two days or more or after any hearing touching on legal practice.  Indeed, as indicated to the parties at the hearing, so far as this court is aware, this practice has been adopted for some 10 years by the Family Court.

38.As further stated in paragraph 252 of the Final Report, since the publication of the Interim Report, the twin issues of transparency and privacy have received judicial attention in both the UK and Hong Kong.  The principle of open justice was further echoed by Ribeiro PJ in Kwan Lai Kwan v Poon Lok To Otto, FACV Nos 20 & 21 of 2013 (17/7/14)[14].

39.At the time of the preparing the Final Report, it was already noted that the Judiciary was preparing a PD on anonymisation, and publication of judgments in family and matrimonial proceedings[15].  This led to PD 15.15, which clearly has in mind protection of privacy in family cases and also the proposals and recommendations in the Interim Report and the Final Report.

40.In line with the current practice and in light of PD 15.15, and further as indicated to the parties at the present hearing, this court proposes to publish all the judgments/decisions/rulings in these proceedings by uploading them to the Legal Reference System, subject to any further anonymization and/or redactment if deemed necessary by the court.  A letter has been sent to the parties to seek their views on such proposal.

41.I now turn to consider the 1^st Summons.

1^st Summons

42.First of all, the 2 Judgments have already been anonymised.  As mentioned at the hearing, this was done as it was this court’s intention to publish them in line with the Family Court practice.  By now, there have been appeals against the 2 Judgments and all appeals were heard in open court.

43.R5 made an affirmation on behalf of the Applying Rs in support of the 1^st Summons.  He has said that the whole purpose of the application is for the benefit of the Judge who will be hearing the Setting Aside Application, and the Bankruptcy Proceedings so that the Judge can get a complete picture of the Main Trial, the variation of the Costs Order and the full conduct of the Husband during these proceedings and the appeals.

44.The Opposing Rs objected to the application on mainly the following grounds:

(i) The 2 Judgments are irrelevant to the issues in the Setting Aside Application and/or the Bankruptcy Proceedings;

(ii) Breach of the protection for privacy in family cases;

(iii) Waste of valuable court’s resources and parties’ resources.

45.Dealing with the breach of protection for privacy in family cases first, so far as Article 10 is concerned, I am satisfied that the anonymisation of the 2 Judgments should be sufficient for protection of privacy, and there has been no proposal from the Opposing Rs as to whether the 2 Judgments should be further anonymised and/or redacted.  In any event, the Applying Rs are not really opposed to any further anonymization if deemed necessary by this court.  As for redaction, I have said at the hearing that it should be the Opposing Rs to come up with proposals if they think any redactment of the 2 Judgments is necessary, and none was put forward at the hearing.

46.Mr Pilbrow had relied on Clibbery v Allan as earlier mentioned.  In Clibbery v Allan, the applicant had a long relationship with the respondent and the relationship ended in the applicant seeking an occupation order pursuant to section 36 of the Family Law Act 1996, under which a non-married partner could claim against the other partner for an order entitling him/her to the occupation of a dwelling-house in certain circumstances.  It was found in favour of the respondent that he and the applicant had never lived together as husband and wife and that there was no jurisdiction to make an occupation order.  The proceedings were heard in private in chambers and the judgment was given in chambers. 

47.After the end of the proceedings, the applicant made disclosures to a newspaper which included details of the proceedings and extracts of evidence from an affidavit sworn by the respondent.  The respondent sought an injunction restraining the applicant from making further disclosures and Munby J, as he then was, held that no confidentiality attached to information conveyed in the course of proceedings merely because they took place in chambers and since the proceedings were not confidential the respondent’s application for any injunction would be dismissed.

48.Dame Butler-Sloss P had said in her judgment that both in civil and in family proceedings the court had control of the use of documents during the proceedings and in certain instances after the end of the proceedings.  She then considered a number of cases concerning disclosure, and said in her judgment that information disclosed under compulsion during ancillary relief proceedings would be protected by the implied undertaking, before, during and after completion of the proceeding[16].   

49.The respondent’s appeal was dismissed, as it was held that  the parties in a s 36 application under the 1996 Act were not always under a compulsion to disclose documents and therefore the implied undertaking not to use disclosed documents other than for the purposes of the action was not necessarily triggered; and accordingly, it did not follow that proceedings brought pursuant to s 36 should always be confidential; and in the circumstances of that case, there were no grounds for preventing publication of the proceedings[17]

50.Clibbery v Allan was a case in relation to the implied undertaking, and those passages referred to by Mr Pilbrow in his written submissions confirmed this.

51.Generally, in relation to a document disclosed during proceedings, Order 24 r 14A of the Rules of the High Court provides that:

“Any undertaking, whether express or implied, not to use a document for any purposes other than those of the proceedings in which it is disclosed shall cease to apply to such document after it has been read to or by the Court, or referred to, in open court, unless the Court for special reasons has otherwise ordered on the application of a party or of the person to whom the document belongs.”

52.Neither Counsel referred this court to the above rule or the general principles relating to implied undertaking apart from Clibbery v Allan.  Anyway, as stated in paragraph 24/14A/1 of the RHC, a party who obtains discovery may use the documents disclosed to him only for the proper purposes of conducting his own case, and there is an implied undertaking by him not to use them for any collateral or ulterior purpose (emphasis added); any misuse of the documents may be restrained by injunction or punished as a contempt.  Further, leave to use the documents notwithstanding the undertaking is discretionary and the discretion will be exercised cautiously so as not to undermine the effect of the undertaking.  In exercising its discretion, the court may consider a number of factors, including the nature of the document, the nature of the information in the document, any prejudice the author of the document may sustain, and the likely contribution of the document to achieving justice in the second proceedings.

53.Thus generally, the concept of implied undertaking applies not only to family proceedings or proceedings heard in chambers not open to public, but applies to other civil proceedings, whether heard in open court, or in chambers open to public or not.

54.The concept of implied undertaking is of particular importance in ancillary relief proceedings, and that documents disclosed in the course of the ancillary relief proceedings are subject to the implied undertaking by the parties not to use them for any collateral purpose other than the ancillary proceedings[18].  There was no dispute to this and I accept the implied undertaking applies in Part II A applications to documents and/or information produced under compulsion.  The Applying Rs are not applying for use of any documents disclosed by the Husband or R2 as a result of any discovery order or under compulsion and their applications are only in relation to the 2 Judgments.  Even if the implied undertaking applies to the 2 Judgments, the issue is really whether the Applying Rs are proposing to use the 2 Judgments for any collateral or ulterior purpose.

55.Mr Pilbrow had submitted that the Applying Rs’ participation in these proceedings in the first place may be subject to scrutiny, as their claim for the disputed shares in the Macau Corporation and ST Shipping was the same cause of action in the HC Action.

56.It was, however, the Husband who applied for and obtained leave to join the Applying Rs in these proceedings, and in fact, I found that it was not necessary for the Husband to join them[19] and that was why I made the Costs Order against him.  I accept that the participation of the Applying Rs in the Main Trial was limited, and they together with R4 were excused from attending the Main Trial shortly after the commencement, and that the Applying Rs did not thereafter participate in the Main Trial. 

57.As for the hearing for the variation of the Costs Order, the Applying Rs took a neutral stance on who the paying party should be, so long as they were awarded costs in their favour.  So far as I recall, they did not appear at the hearing although written submissions were lodged.

58.Even though the Applying Rs did not really participate in the Main Trial and remained neutral at the hearing for the variation of the Costs Order, there was no objection from the Husband or any of the Opposing Rs to the Applying Rs being sent a full copy of the Main Judgment and the Variation of Costs Ruling, nor was the Opposing Rs’ objection to the 1^st Summons based on any non participation or limited participation of the Applying Rs.

59.Further, unlike TCWF v LKKS (Hearing of Appeal in Camera), neither the Husband, nor any of the Opposing Rs made any application for the Husband’s appeal, or any part thereof, to be heard in camera.  In so far as I am aware, there was also no application by the Opposing Rs that any part of the 2 Judgments should not read out aloud in the hearing of the appeal or referred to in the judgment of the Court of Appeal.

60.I accept Mr Lok’s submissions that the Bankruptcy Proceedings are a means of enforcing the Costs Order.  Mr Lok had referred to TCWF v LKKS (No 2) [2014] HKFLR 109 in which it was held, among other things, the wife was allowed to use two unredacted judgments for the enforcement of a judgment as there would be nothing collateral or alien about enforcement of the court’s order.  The wife in that case wished to rely in particular on the findings in the main judgment on ancillary relief of the husband’s beneficial ownership of the assets.

61.The Husband had filed three affirmations in relation to the Setting Aside Application.  The main concern of the Husband, as seen in his affirmations, was that if he were to pay the costs to the Applying Rs, he would not be able to recover the same from them.

62.However, as seen from what was said by the Husband, it was/is his position throughout that it should be the Wife who should pay the costs of the Applying Rs, and not him.  In particular, it was/is not his position that there should be no order as to costs as between the Applying Rs and him, or that the Applying Rs should pay him his costs.

63.If the Husband is to succeed in his appeal against the Costs Order/Variation of Costs Ruling after he has paid the Applying Rs their taxed costs and interests, and if the Wife is to be held liable for the Applying Rs’ costs, there is no reason why the Husband could not seek reimbursement from the Wife, at least for the principal sum of the taxed costs he has paid.

64.In any event, it was the Husband who had referred to the Main Trial and the Costs Order in relation to the Setting Aside Application, as seen in his Counsel’s written submissions.  In particular, the Husband had maintained in his affirmations filed in support of the Setting Aside Application that it was the Wife, and not him, who should be ordered to pay the costs of the joinder of the Applying Rs, without setting out those reasons in the Variation of Costs Ruling as to why this court differed and ordered otherwise, and further in the Main Judgment, there had also been references as to why the Applying Rs were excused from attending the Main Trial shortly thereafter.

65.The Applying Rs are not seeking for release of the 2 Judgments in any un-anonymised form and further they are prepared to offer undertakings as to confidentiality to ensure that the only persons who will be reading the 2 Judgments will be the Applying Rs and their lawyers, the Husband and his lawyers and also the Judge hearing the Setting Aside Application.  In my view, it will also not be necessary for any part of the 2 Judgments to be read out aloud in open court unless they have already been read out before the Court of Appeal and/or referred to by the Court of Appeal.  This is an additional undertaking I will impose on the Applying Rs for the time being until all judgments are published.

Conclusion

66.Having considered all the circumstances, I am of the view that the proposed use by the Applying Rs of the 2 Judgments for the Setting Aside Application cannot be said to be for a collateral or ulterior purpose, and that if the Judge hearing the Setting Aside Application is of the view that any reference to the 2 Judgments is unnecessary or irrelevant and waste of resources, the matter can be addressed in any costs orders in the Bankruptcy Proceedings.  There is also no or no sufficient evidence of any prejudice to the Opposing Rs for the proposed use of the 2 Judgments upon those undertakings imposed.

67.I am therefore prepared to exercise my discretion to allow the Applying Rs to use the 2 Judgments in the Bankruptcy Proceedings and to release the Applying Rs from any implied undertaking, if applicable to the 2 Judgments, subject to the undertakings mentioned below. 

Order

68.My order is as follows:

(1) The Judgment dated 26 March 2013 and the Ruling of 26 September 2013 in HCMP 643 of 2012 (“2 Judgments”) be released to the 5^th and 6^th Respondents for use in HCSD 19/2016 upon the undertaking of the 5^th and 6^th Respondents that:

(i) They will only use the 2 Judgments in HCSD 19/2016;

(ii) They will ensure that only the Judge in HCSD 19/2016, the 1^st Respondent, the 5^th and 6^th Respondents and their respective legal representatives will be able to read the 2 Judgments;

(iii) They will not read aloud in open court or hearings in chambers (open to public) in HCSD 19/2016 any parts of the 2 Judgments save those already read out before the Court of Appeal or referred to in any judgment of the Court of Appeal.

Costs

69.As the Opposing Rs are unsuccessful in opposing the 1^st Summons, I see no reason why costs should not follow the event.

70.I therefore order that the Husband, R2, and R3 to jointly and severally pay R5’s and R6’s costs of the summons issued on 23 September 2016, such costs to be summarily assessed and to be paid forthwith.  R5 and R6 are to submit their statement of costs within 21 days, and R1, R2, and R3 are to submit their opposition within 14 days thereafter.  This is a costs order nisi which shall be made final within 21 days.

Mr David Pilbrow SC and Mr Jonathan Ah-weng, instructed by Tso Au Yim & Yeung, for the 1^st respondent

Mr David Pilbrow SC and Mr Jonathan Ah-weng, instructed by B C Chow & Co, for the 2^nd respondent

Mr David Pilbrow SC and Mr Jonathan Ah-weng, instructed by Simon C W Yung & Co, for the 3^rd respondent

Mr Alex Lok, instructed by Cheung & Co, for the 5^th and 6^th respondents