Wssa v. Syh

FCMC 4633 / 2020

[2023] HKFC 193

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 4633 OF 2020

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D E C I S I O N
(Leave to Appeal)

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The Application

1.The Petitioner is the wife.  The Respondent is the husband.  I will refer to them conveniently as “W” and “H” in this Decision.

2.On 24/5/2023 this Court handed down its Decision (“24/5/2023 Decision”) dismissing W’s application by Summons taken out under Rule 121 of the Matrimonial Causes Rules (Cap.179A) (“MCR”) and inherent jurisdiction (“W’s Rule 121 application”). 

3.W’s Rule 121 application was for general leave to use, produce and/or refer to documents and/or information disclosed or filed in these matrimonial proceedings, and correspondences relating thereto and to provide the same to MRL (who was the domestic helper hired by W) for MRL to prepare her defence to charges in other criminal proceedings.   W’s other application for release from her implied undertaking in relation to the above documents and/or information was also dismissed.

4.MRL was charged with 3 counts of common assaults in the Eastern Magistrates’ Court. All the offences took place in the former matrimonial home of the parties and during the time when MRL was the domestic helper working there.  The victim of all the assaults was H. 

5.On 7/6/2023 W issued a Summons seeking leave to appeal the 24/5/2023 Decision.

6.H opposed W’s application for leave to appeal.  H filed his written submissions in opposition.

W’s Draft Grounds of Appeal

7.There are altogether 6 grounds in W’s draft Notice of Appeal annexed to the Summons and categorised under the following headings :-

Ground 1 : Proper Party for the Rule 121 Application;

Ground 2 : Failure to consider Two-Stage approach to disclosure;

Ground 3 : Erred in holding that impermissible for witness in a criminal case to provide additional information and materials beyond testifying;

Ground 4 : Taking into account irrelevant considerations;

Ground 5 : Failure to take into account material and relevant considerations;

Ground 6 : Petitioner’s restrictions on disclosure of information without leave.

The provisions on granting leave to appeal

8.The jurisdiction to grant leave to appeal rests with section 63A of the District Court Ordinance, Cap.336 which provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there are some other reasons in the interests of justice that the appeal should be heard.

9.The relevant test for determining whether the appeal has a reasonable prospect of success is whether the applicant for leave can show that he or she has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable” (see KNM v. HTF, HCMP No.288/2011 per Fok JA (as he then was) at paragraphs 8 and 9 of the Judgment).

10.Further, it is trite that an appellate court may only interfere with the exercise of the judge’s discretion in the court below in limited circumstances, in accordance with the well-established principles in Hadmor Productions Ltd v Hamilton [1983] 1 AC 191 at 220B to E (see SPH v SA at paragraph 65).

11.The appellate court would not interfere the judge’s discretion in the court below merely because it would have reached a different conclusion had it been hearing the application at first instance.  It can only interfere in three cases : (1) where the judge has misdirected himself with regard to the principles in accordance with which his discretion had to be exercised; (2) where the judge, in exercising his discretion, has taken into account matters which he ought not to have done; or (3) where his decision is plainly wrong. (see Bright Shipping Ltd v Changhong Group (HK) Ltd (No.2) per Kwan J, VP at paragraph 5)[1].

12.The appellate court would adopt a cautious approach regarding the weight given by the judge to facts taken into account when exercising the discretion.  The fact that the appellate court would have given more weight than the judge to one of the many factors to be taken into account in exercising the discretion is not a ground for interfering with the exercise of the judge’s discretion.

Discussion

13.First and foremost, it was common ground that the 24/5/2023 Decision was an exercise of discretion in respect of which appeal could only be brought under established principles or within limited circumstances.

14.I will now consider W’s draft grounds of appeal in sequence.

15.Grounds (1) and (2), in my view, are actually intermingled and therefore would be considered together.  W fairly conceded that there was no local instances for a non-party to intervene in matrimonial proceedings to seek disclosure, and also rightly accepting that this may be jurisdictionally permissible at least in the English context[2] (emphasis added), the contention which W took was that the non-party, namely MRL in this case, would be unable to do so without first knowing what documents are there in these matrimonial proceedings for her to seek disclosure.  It was on such basis of contention that W believed that she should be the proper party for an application under Rule 121 of the MCR.  This is essentially what Ground (1) was about.

16.There are 2 sub-rules under Rule 121 of the MCR.

17.Rule 121(1) specifically referred to “A party to any matrimonial proceedings (emphasis added)”, that is to say, must only be the Petitioner or the Respondent.

18.Rule 121(2) referred to “Except as provided by ..…. and paragraph (1) of this rule, no document filed ..…… shall be open to inspection by any person (emphasis added) without leave of the court, and no copy..….. shall be taken by, or issued to, any person (emphasis added) without such leave.”

19.Thus it is clear that the applicant in an application under Rule 121(2) of the MCR could be any person (emphasis added) not necessarily restricted to the parties in the case.  Given the fact that it was MRL who might require the documents and information in these matrimonial proceedings for preparing her case of defence in the criminal proceedings, the proper party for seeking disclosure should be MRL so decided by this Court.

20.On seeing the fundamental flaw in her Ground (1), W started to propose a “Two-Stage Approach” into her Ground (1) and then elaborated such approach as her Ground (2).  W further said that it was compelling and warrants the appellate court scrutiny on such “Two-Stage Approach” so that a ruling by the Court of Appeal would address a longstanding procedural lacuna.[3]  The proposition of a “Two-Stage Approach” was for W to first seek leave from the Family Court to use, produce, or refer to documents and information (Stage 1); then followed by consideration of the issue of confidentiality/privacy after MRL’s legal advisers considered the documents or information disclosed to them by W (Stage 2).

21.W cited the case of Re A (Criminal Proceedings: Disclosure)[4] to support her “Two-Stage Approach” in these grounds of appeal.  W’s submission was that her position in her Rule 121 application was analogous to the solicitor in the Re A case who had successfully sought leave to divulge information to his client for defending a criminal charge.  W further submitted that the terms of her Summons as framed for the Rule 121 application encompassed both “stages”.[5]  There was also submission by W that this Court did not invite Counsels’ assistance and adjourn the oral hearing on 9^th May 2023 for the filing of further written submissions, but instead dismissed W’s Summons outright despite that there was a lack of urgency in ruling upon W’s Summons.[6]

22.With respect, the analogy drawn by W upon herself being akin to the solicitor in the Re A case was plainly incorrect.  Given that the solicitor in the Re A case was a non-party who directly obtained leave from the court for divulging information, there was no question of considering any “Two-Stage Approach” involved.  Further and to the contrary, the Re A case cited by W’s team of Counsel supported my decision against W in her Ground (1) that the proper party to the Rule 121 application could be a non-party; not necessarily have to be H or W.

23.As raised by Miss Anita Yip, S.C., for H in her written submissions, which I respectfully agreed, the “Two-Stage Approach” did not appear either in W’s Summons dated 26/4/2023 or her Notice of Appeal dated 7/6/2023.  There was also no such reference in W’s 17^th Affidavit filed in support of the said Summons.  A relief not sought in the court below and not mentioned in the notice of appeal will not be entertained (as per Kwan JA at paragraph 97 in TL v SN).[7]  I also agreed with Miss Anita Yip, S.C., that since the “Two-Stage Approach” was a point not taken or an argument not advanced in the trial proper, it could not be pursued at the hearing of the application or appeal without leave of the court.[8]  Suffice for me to say was that up until now, there was no leave for W to do so or was there any application for such leave.

24.In my decision, W’s “Two-Stage Approach” on a Rule 121 application was a belated conceptual adventure but raised as a ground of appeal.  Given W’s concession of non-party application may be jurisdictionally permissible and also my ruling on non-party applicants under Rule 121 (2) of the MCR are permissible, there was simply no “procedural lacuna” so submitted by W which call for a ruling by the Court of Appeal allegedly required for the benefit of future applications.

25.On the submission of “lack of urgency” in W’s written submissions[9], this was unsustainable. Within W’s 17^th Affidavit dated 26/4/2023 filed in support of her Rule 121 application and under the sub-heading of “Urgency” where she said :-

“16.	I therefore make this application urgently and would be grateful if it can be heard and determined before the Criminal Trial commences on 17/5/2023 so relevant and necessary materials for the purpose of conducting MRL’s defence in the Criminal Proceedings can be provided to her.”

26.I find there was no reasonable prospects of success on appeal in respect of Grounds (1) and (2).

27.W’s contention under Ground (3) was unsustainable.  There was no finding or ruling on the legality or illegality for W, as one of the defence witness for MRL, to provide MRL with documents and information.  At paragraph 47 of the 24/5/2023 Decision, the refusal was clearly said to be upon the assumption that it was legal for W to do so but, nonetheless, W would also fail in her Rule 121 application after taking into account all the relevant facts and circumstances.

28.I find there was no reasonable prospects of success on appeal in respect of Ground (3).

29.W’s contention under Ground (4) was a non-starter.  On the one hand, W was contesting that this Court had taken into account irrelevant consideration when referring to those procedures in criminal proceedings (both on the prosecution and defence side), all of which should not be taken into account; however, W then suggested that the pertinent question in this Rule 121 application was whether the documents and information which W sought to disclose to MRL could potentially assist MRL in her case of defence.

30.With respect, such contention was mutually exclusive if not nonsensical.  Without referring to all possible options of defence available in criminal proceedings and considering each of them, how would this Court perform its balancing exercise as to where the discretion should lie ?  Should it lie in favour of protecting the strict confidentiality of H and the children in these family proceedings or to ensure that the public interests of MRL having a fair trial to be upheld.  Had MRL decided not giving any evidence and just putting the prosecution to strict proof of their case beyond reasonable doubt, which was an option or strategy open to the defence in criminal proceedings, what would be the rational or justification for compromising H’s and the children’s confidentiality by providing MRL with all the documents and information who then, presumably upon her own legal advice, decided not to rely upon any of them in her case of defence ?

31.It is thus important for MRL to be the party for the Rule 121 (2) application.  MRL would have to show that a prima facie case for disclosure exists whereupon she also need to seek leave to obtain a list of the documents filed in these matrimonial proceedings within which disclosure might be sought.  Upon disclosing her line of defence and identifying the documents and information she needed, the Family Court would then be able to carry out the balancing exercise for its discretion and; by then, would also be in the position to consider any claim of privilege against self-incrimination (“PSI”).

32.I find there was no reasonable prospects of success on appeal in respect of Ground (4).

33.W’s Ground (5) referred to this Court had not attached any importance to the need of ensuring MRL was not wrongly convicted.   There was also the submission that the outright dismissal of W’s Summons would fundamentally impair MRL in providing a full defence in the criminal proceedings.

34.First, nowhere in the 24/5/2023 Decision prevented MRL from bringing a separate Rule 121 (2) application by herself upon this Court’s dismissal of W’s Summons.  Thus, it is wrong to say that MRL’s rights had been fundamentally impaired following W’s failed application.

35.How likely would MRL be convicted or, in the words of W, wrongly convicted (emphasis added) was entirely a matter of evidence at the criminal trial.  Without knowing MRL’s line of defence, it was unfair to say or to raise the submission that without the documents and information sought by W, MRL would more likely than not to be convicted, or wrongly convicted (emphasis added) in the criminal proceedings; and thus causing injustice or being unfair to MRL under the open justice principle.

36.The cases and authorities cited by W’s team of Counsel in their written submissions merely stating the established principles of open justice and public interests in that the court should not erect a barrier that would prejudice the other branch of the judicature, it does not wipe out the importance and the need to preserve strict confidentiality in family court proceedings or setting up any precedents facilitating disclosure to non-party whenever there was an application made by one of the party in the family proceedings under Rule 121 of the MCR.

37.I find there was no reasonable prospects of success on appeal in respect of Ground (5).

38.W’s Ground (6) referred to possible breaches of Section 5(1) of the Judicial Proceedings (Regulations of Reports) Ordinance, Cap.287 (“JPRRO”).  Of concern to W was the broad ambit of the said statutory provision might carry the possibility that, amongst other things, the giving of oral evidence as a defence witness of MRL in the criminal proceedings might also contain information in these family proceedings which would then be prohibited by the JPRRO.

39.Although the issue of possible breaches of the JPRRO was only raised by W’s Counsel Miss Theresa Chow belatedly in her Note for Hearing dated 8/5/2023 (that is, the day before trial) and during the trial on 9/5/2023 and not within the terms of W’s Summons or her 17^th Affidavit, I would allow such issue to be included as one of W’s grounds for seeking leave to appeal in this application in light of paragraph 7 of the Practice Direction 5.4.

40.H’s contention to Ground (6) was that there was a distinction between “information relating to the child” and “information relating to the proceedings”.  It was only the latter, and not the former, which was prohibited by the provisions under the JPRRO (see A v Ward [2010] 1 FLR 1497 §113).  Thus, MRL could still give evidence of the facts or information about the 2 children independently outside these matrimonial proceedings without fear of contempt.   After all, MRL was facing 3 counts of assault allegedly over H personally and thus information about the children would not be directly relevant.

41.I have read the case of A v Ward (supra).  I agreed with H’s submission. 

42.I find there was no reasonable prospects of success on appeal in respect of Ground (6).

43.Giving further careful overall consideration to all of W’s grounds of appeal, I find that none of the 3 cases[10] for bringing an application for leave to appeal against a discretionary decision exists.

Any other grounds in the interests of justice ?

44.Apart from the above grounds of appeal, there was no submissions by W that leave to appeal should be granted on the “otherwise ground”, that is, it is in the interests of justice to grant her leave to appeal.  Nonetheless, I have also considered this limb.

45.Having reviewed and reconsidered all the submissions and circumstances of this case, I find that there are no other grounds in the interests of justice to grant leave to appeal to W; in particular, W being a party to the matrimonial proceedings but not the proper party for the Rule 121 application.

Decision

46.For all the reasons above, I decided that W’s application for leave to appeal fails.

Costs

47.Given the outcome of W’s application and the reasons therefor, I decided that it is only just and reasonable for costs to follow the event. 

48.I also grant Certificate for Senior Counsel and one Counsel.

Orders

49.I now grant the following Orders :-

(a)  W’s Summons dated 7/6/2023 for leave to appeal be dismissed;

(b)  W to pay H’s costs of this application, to be taxed if not agreed;

(c)  There be Certificate for Senior Counsel and one Counsel

50.This is a costs order nisi which will become absolute if no application to vary the same is made within 14 days from the date of this Decision.

Mr. Robert Pang S.C., leading Miss Theresa Chow and Mr. Adrian Kwan instructed by Messrs. Ho & Ip, Solicitors for the Petitioner

Miss Anita Yip S.C., leading Mr. Ken S.H. Chan and Mr. Harry Chan, instructed by Messrs. Withers, Solicitors for the Respondent