H v. W

FCMC 8332/2017

[2022] HKFC 211

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 8332 OF 2017

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JUDGMENT
( Extempore Decision on Expunction of Documents )

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Introduction

1.The current proceedings in this matter must be seen against the backdrop of the history of this case, which follow the W’s unsuccessful relocation application. After a 6 days trial in July 2020 (“Relocation Trial”), HHJ Melloy allowed W’s relocation application in her decision in November 2020, but this was overturned by the Court of Appeal in May 2021, the W’s leave to appeal to the CFA was refused in August 2021.  The proceedings were sent back to the District Court where the parties continue to engage in litigation over the care and access of the child of the family. 

2.Oral submissions were delivered by both parties acting in person today.  I am giving this decision on an ex tempore basis with the intention that this case can move forward with the provision of information where appropriate.

3.This is W’s Summons dated 30 May 2022 wherein she applies to have the following documents expunged/struck out: [§xx refers to paragraphs in this Summons]

a.  The Addendum prepared by Ms. LL (“L”) dated 24 July 2020 (“Addendum”): [§1] from the files of (i) the Court, (ii) the Court appointed Social Welfare Officers, (iii) any other units of the Social Welfare Department, and (iv) other persons appointed by the court;

b.  Any reference to the Addendum from the Parties’ Affirmations or other Court documents regarding the Children’s trial: [§2]

c.  The Social Investigation Report dated 7 April 2022 (“Social Investigation Report”) (prepared by Ms. CKL) and the Clinical Psychologist Report dated 16 March 2022 (“Clinical Psychologist Report”) (prepared by Ms. WST):[§3] from the files of (i) the Court, (ii) all units of the Social Welfare Department of Hong Kong; and (iii) any other person appointed by the Court;

d.  Any reference the Social Investigation Report and the Clinical Psychologist Report from the Parties’ Affirmations or other court documents regarding the Children’s trial: [§4];

e.  The reports prepared by L dated 15 November 2019 and 22 June 2020 (“L Reports”): [§5] from the files of (i) the Court, (ii) all units of the Social Welfare Department of Hong Kong; any (iii) other person appointed by the Court; and

f.  Any reference to L Reports from the Parties’ Affirmations, or other court documents relating to the Children’s trial [§6];

4.W also applies for the following orders (“Orders”):

a.  The Addendum, Social Investigation Report, the Clinical Psychologist Report, and the L Reports not be referred to or shared with any expert or third parties in the proceedings or beyond: [§§7-9];

b.  New and updated social investigation and clinical psychologist reports be called for from a different officer of the Social Welfare Department and a different clinical psychologist: [§§10-11].

5.The Summons can be broadly divided into three aspects: The Addendum, the L Reports and the Orders she sought in paragraph 4 above.

The Addendum

Expunction from Court

6.L sent her “Addendum to the evaluation report dated June 22 2020” to HHJ Melloy on 24 July 2020 directly, this is one day after the Relocation trial was concluded.  In it, she opened with:

“I have reflected carefully on the criticism of the court, and on reflection, I have found that there are items in my report and during the hearing that were not expressed clearly. I would like to take this opportunity to clarify my statement and offer the final conclusions and recommendations.”

7.In the oral submissions, W submits that this Addendum was not called for, made without leave, and add nothing to the previous reports made by L.  H argues that HHJ Melloy has not ruled on the admissibility of the Addendum at the time and even gave him leave to share the Addendum with Ms. CKL (SWO) and Ms. WST (CP) subsequently.

8.The H’s arguments appeared to be premised on the Addendum being evidence before the Court, but the Addendum has not been admitted as evidence at any time of these proceedings:

a.  The Addendum was never and could not have been admitted as an expert report (and remains inadmissible as such), as it does not comply with O. 38 r. 37C Rules of the District Court(Cap. 336H);

b.  It is also not part of the parties’ evidence, as it is not an exhibit to either party’s affirmations.

9.If it has been erroneously treated by anyone as evidence, it should not have been.  However, simply because the Addendum is not evidence does not mean it cannot be in the Court file.  A letter, and the Addendum as such, can exist in the Court file as a piece of correspondence.   

10.In W’s Summons and written submissions, the basis of the application rests on an order made by HHJ Melloy on 29 July 2020 in response to the Addendum she received, where she noted:

“The Court did not ask Ms L for a further report and the trial is now concluded. In such circumstances, please note that the Court will not read the report or take it into account further. The parties are not to refer to this report in their submissions or generally.”

11.However, it is my view that HHJ Melloy only meant that the Addendum could not be referred to “generally” in W’s relocation application. She could not have meant it could not be referred to in subsequent applications.  I also agree with the H’s argument that HHJ Melloy’s order on 29 July 2020 was made before the H’s appeal on relocation and could not be premised on the CA overturning her decision and that there is to be ongoing trial on the child’s care arrangement.  This interpretation is also clear from the fact that, at a direction hearing on 24 November 2021, HHJ Melloy allowed H to refer Ms. CKL (SWO) and Ms. WST (CP) to the Addendum.

12.Accordingly, I find the basis of the W’s application to expunge the Addendum to be without merits, I will therefore not expunge the Addendum from the Court’s files, nor references to the Addendum in any Court Documents and the Parties’ Affirmations.

Expunction from other Files

13.I will also not expunge the Addendum from the files of the Social Welfare Officers, other units of the Social Welfare Department, and any other persons appointed by the court.  Not only do I not have the jurisdiction to do so; also, simply because the Addendum is not evidence does not mean Government units and persons appointed cannot have a copy of it, as they often have access to court files for preparation of their reports.

Social Investigation Report/Clinical Psychologist Report

14.W says the Social Investigation Report and the Clinical Psychologist Report and references to it should be expunged because the Government Clinical Psychologist had a copy of the Addendum; and the Social Welfare Officer might have been informed of the Addendum’s contents.

15.Those are not good reasons for expunging those reports, nor references to them in the Court documents:

a.  Simply because the experts might have had copies of the Addendum when preparing their reports does not make the reports inadmissible;

b.  If W’s actual complaint is the reports are tainted or unreliable because they might have relied on the Addendum, that goes to the reports’ weight, not their admissibility;

c.  It is in any event premature to tell whether the reports are tainted or unreliable because they might have relied on the Addendum. That can only be determined after the relevant experts have been cross-examined, and submissions made on the weight to be attached. It is then a matter for the trial judge.

L Reports

16.W says the L Reports should be expunged.

17.L Reports were admitted as evidence at the Relocation trial and L was cross examined during that hearing.

18.W has submitted that the L Reports had been “adjudicated upon”, this is an incorrect submission. The Relocation Trial was not to adjudicate on the reports, the latter were produced to assist the Court in determination of the issues before it.  The reports called for previously will continue to have value in providing background to the case. 

19.W also says that L Reports should be expunged because she has made a complaint against L to the Hong Kong Psychological Society (“HKPS”) in around July 2021 (this was only after the abovementioned CA decision in May 2021), and HKPS has written to W on 26 April 2022, informing her of HKPS’s view that L has prima facie breached a number of Codes of Professional Conduct, and that the complaint merits a full investigation; and W therefore submits that L will “inevitably be found to be in breach of the Code of Conduct of Expert Witness Appendix E under RDC.”  I note that the W has not provided a copy of her complaint to HKPS to this Court.

20.In my view, since no evidence has been put forward on the findings of HKPS’s full investigation; I cannot now decide on whether L Reports, or references to them in the Court documents, should be expunged.  Even if there is a result of the full investigation, decision to expunge the L Reports cannot be made without knowing the details of the findings of the investigation. 

Other Orders

21.The Orders W seeks are sought on the premise that her expunction application is successful. As W’s expunction application is dismissed, I will not grant the Orders sought.

Conclusion and Cost

22.For the reasons above given, I dismiss the W’s Summons in its entirety. In the premises, I will not grant W’s request for H to bear the costs of her Summons.

23.As H has not asked for costs, I shall therefore make no order in this regard.

Petitioner: appeared in person

Respondent: appeared in person