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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BETWEEN

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D E C I S I O N

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Introduction

1.The background in relation to this application has been set out in the Decision handed down on 2 December 2016 (“1^st Decision”).  This is the decision in relation to the 2^nd Summons, and all abbreviations shall follow those in the 1^st Decision, unless otherwise indicated.

The 2^nd Summons

2.The 2^nd Summons was said to be issued under Rule 121 of MCR, but in Mr Lok’s submissions for the Applying Rs, he was relying on the inherent jurisdiction of this court to control the documents in its possession, and had referred this court to Secretary for Justice v FTCW & Ors [2014] HKFLR 115[1].

3.As mentioned in my 1^st Decision, in my view, Rule 121 of MCR only applies to matrimonial proceedings as defined in the MCR and the present proceedings are Part IIA proceedings which fall within “family proceedings” in PD 15.12.  Further, now the publication of judgments in family proceedings is provided for under PD 15.15.

4.The purpose for which the Applying Rs sought release of the Reasons for Ruling was said (i) to produce the same to Chow J in the HC Action for their application for leave to appeal on costs[2]; and (ii) to produce the same to the Court of Appeal, in order to show a “pattern of “abuse” by R2 because in both the present proceedings and the HC Action R2 had filed lengthy witness statements and/or affirmations and thereafter failed to attend the trial for cross examination.

5.In the present proceedings, R2 had made three affirmations, one filed on 13 September 2012 including a witness statement and two affirmations filed on 9 October 2012, just shortly before the commencement of the trial on 10 October 2012.  In particular, the two affirmations signed by R2 on 8 October 2012 were respectively 10 pages and 6 pages long, with over 100 pages of exhibits in total.  She subsequently failed to attend trial to be cross examined on her affirmations and witness statement.

6.The issue as I understand from Mr Lok’s submissions is that R2’s conduct is a relevant matter in the argument of costs in the HC Action, namely that her conduct of producing detailed affirmations and witness statements and yet failing to turn up for the trial at last minute for cross examination thereby resulting in unnecessary costs being incurred, not only once but on two occasions, should be taken into account by the Judge hearing the variation of costs application.

7.I do not see this proposed use by the Applying Rs of the Reasons for Ruling can be said to be for a collateral or ulterior purpose.

8.The Applying Rs were willing to undertake, until the Reasons for Ruling were released or made public and/or published, to keep confidential the Reasons for Ruling and not to let anyone else have sight or knowledge of the Ruling, and not to disseminate the Reasons for Ruling to any one or use for purposes other than the ongoing litigation.

9.In fact, since the hearing of the 2^nd Summons, an anonymized version of the Reasons for Ruling have already been published and uploaded to the Legal Reference website.

10.Having considered Mr Lok’s submissions, I am satisfied that grounds have been made out by the Applying Rs and there is no evidence from R2, or indeed from the other of the Opposing Rs as to any prejudice to them.

11.The Applying Rs have no objection to the anonymized version.

12.In the above circumstances, although it is no longer necessary for me to grant leave, if leave is so required, I am prepared to grant the same for the 5^th and 6^th Respondents to produce and use the anonymized and published version of the Reasons for Ruling dated 16 October 2012 in these proceedings for use in HCA 857 of 2011 and any subsequent appeal. 

13.I order that the Husband, R2, and R3 to jointly and severally pay R5’s and R6’s costs of the summons issued on 26 October 2016, such costs are 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 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