In Re Nicholas Hunsworth

HCMP000489/1996

IN THE COURT OF APPEAL

1996, No. 489
(Miscellaneous Proceedings)

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Coram: Bokhary, Godfrey and Mayo, JJ.A.

Date of hearing: 7 and 11 March 1996

Date of handing down of Judgment: 2 April 1996

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J U D G M E N T

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Bokhary, J.A.:

Introduction

1. Mr Nicholas Hunsworth, a solicitor, seeks to inspect and obtain a copy of a document covered by Order 63 rule 4(1)(a) of the Rules of the Supreme Court, Cap. 4.

2. The document is the Attorney General's Ex Parte Originating Summons filed in the Registry on January 22 this year in Miscellaneous Proceedings No. 236 of 1996. By that originating summons, the Attorney General sought - and on January 24 this year obtained from Patrick Chan J in chambers - an order under section 77E(1)(b) of the Evidence Ordinance, Cap. 8. It was an order that a letter of request be issued to the Judicial Court of Macau requesting its assistance in the obtaining of evidence for the purpose of criminal proceedings which are likely to instituted here if evidence is obtained for their purpose by such assistance.

3. If the originating summons had been drafted so as to seek an order in terms of a draft order exhibited to an affidavit, then the problem which has arisen would have been avoided.

4. However, the originating summons sought an order in terms of a draft order annexed to it. More precisely, one should say "annexed to the rest of it". That is because the annexation joined the annexure and the thing to which it was annexed together so as to form a single document.

5. Thus the draft order was as much a part of the originating summons as the contents of that draft would have been if they had been set out in the main body, so to speak, of an originating summons which did not resort to any annexure.

6. But what did Mr Hunsworth find when he conducted a search at the Registry? He, a solicitor, may have conducted that search on behalf of clients who believed that they were being investigated in the course of the investigation in furtherance of which the letter of request in question was sought. Nevertheless, he was relying on his right in common with other members of the public under Order 63 rule 4(1)(a). And what he found was not the originating summons but only a part of it. The draft order forming part of it was witheld from him.

7. That was the result of a direction which Patrick Chan J had made when ordering the issuance of the letter of request applied for by the Attorney General. Upon the instigation of counsel for the Attorney General, he made a direction to the effect that all the documents in that application except for the originating summons less the draft order forming a part of it be put in a sealed envelope and be immune from search save with the leave of the court.

Entitlement under Order 63 rule 4(1)

8. Now, the entitlement conferred on the public under Order 63 rule 4(1) is couched in these terms:

"Any person shall, on payment of the prescribed fee, be entitled during such hours as the Registrar may direct to search for, inspect and obtain a copy of any of the following documents filed in the Registry, namely -

(a) the copy of any writ of summons or other originating process,

(b) any judgment or order given or made in court or the copy of any such judgment or order, and

(c) with the leave of the Court, which may be granted on an application made ex parte, any other documents."

9. Subsection (5) of section 77E of the Evidence Ordinance, Cap. 8, provides that the power to make rules of court under section 54 of the Supreme Court Ordinance, Cap. 4 - which is the source of the Rules Committee's powers - shall include power to make rules of court with respect to section 77E (including the procedure to be followed) and for supplementing its provisions. It was - and still is - possible to provide in the Rules of the Supreme Court that Order 63 rule 4 shall not apply to documents filed in section 77E applications. But that has not been done yet. And we are left with rule 4 in its present form.

10. In that form, the language of sub-rule (1) thereof is clear. Where any document other than those covered by items (a) and (b) is concerned, it is only with the leave of the court that the public can search for, inspect or obtain a copy of the same. But where any document covered by items (a) or (b) is concerned, the public's entitlement to search for, inspect and obtain a copy of the same is not subject to any leave.

11. It would appear therefore: that the entitlement is an unqualified one; and that the Registry has an administrative duty to play its natural role in facilitating the due exercise of such entitlement by any member of the public choosing to exercise it. So if the Registry fails or refuses to carry out that duty, such a member of the public would have a prima facie right to an order of mandamus directed to the Registrar to compel the carrying out of such duty.

12. In a situation like the one which exists at present, the Registrar would naturally say that in witholding part of the originating summons he was merely obeying an order of the court, since that is what Patrick Chan J's direction amounts to, and that he was obliged to do so even if his own view happened to be that the order in question was made without jurisdiction.

Judicial review as an avenue of redress

13. If the Registrar's failure or refusal came to be tested by way of judicial review, the question of whether Patrick Chan J had jurisdiction to curtail the public's entitlement under Order 63 rule 4(1) would come before another High Court Judge. But that would not mean that Patrick Chan J's order was being judicially reviewed. It is the Registrar's administrative decision which would be judicially reviewed. And the other High Court Judge would have to make up his own mind as to the law, after of course according due respect to Patrick Chan J's view.

14. In due course, the question of Patrick Chan J's jurisdiction could properly be brought before this Court by way of an appeal from the other High Court Judge's decision (whichever way it goes) in the judicial review proceedings.

15. Whether that question is properly before us now is an issue confronting us. And I am about to address that issue.

16. Before I do so, however, I would add two things in regard to any judicial review proceedings of the nature which I have been discussing.

17. First, I am not to be taken as in any way prejudging anything. It is not for me to suggest in advance either that leave to apply should be granted or that it should be refused. I say nothing as to how the question of Patrick Chan J's jurisdiction might be decided if leave were granted. Nor do I say how any discretion to withold relief might be exercised if the view were taken: (i) that Patrick Chan J had no jurisdiction to curtail the public's entitlement under Order 63 rule 4(1); but (ii) that such entitlement would never have extended to knowing the things contained in the draft order but for a mistake (to the prejudice of the public's interest in preserving within proper bounds the legitimate degree of confidentiality necessary to a criminal investigation) which mistake resulted in a draft order being made part of the originating summons rather than being exhibited to an affidavit. Whatever else may be in doubt, nobody can doubt that Patrick Chan J acted out of the best of motives in endeavouring to protect the public interest from the adverse effects of that mistake.

18. Secondly, I am not to be taken as suggesting that the Registrar should, as it were, fight the Attorney General's battle for him. It would appear that the Attorney General would, in a judicial review, be a person "directly affected" within the meaning of Order 53 rule 5(3) or at least a "proper person to be heard" within the meaning of rule 9(1) of that Order.

19. Judicial review being an avenue for pursuing redress, is there another?

Is the matter properly before us?

20. That brings me to the issue, which I had briefly postponed, of whether the question of Patrick Chan J's jurisdiction is properly before us at the moment.

21. In determining that issue, it is necessary to outline how this matter has come before us.

22. Patrick Chan J, upon learning that Mr Hunsworth was pressing the Registrar for the whole of the originating summons including the draft order forming a part of it, directed that Mr Hunsworth bring the matter before him with notice to the Attorney General .

23. As a result, on February 1 this year, counsel for Mr Hunsworth and counsel for the Attorney General appeared before Patrick Chan J. And the matter was argued on that day and on the following day.

24. Patrick Chan J gave his decision on the 5th of that month. He turned Mr Hunsworth down, saying at the end of the written decision which he gave that Mr Hunsworth was not entitled to look at "the draft order referred to in the Originating Summons". There is some irony in that. If the draft order were merely referred to in the originating summons, then the present problem would not have arisen. Anyway, what the judge meant is clear from his written decision as a whole: he was saying that neither Mr Hunsworth nor any other member of the public was entitled to see so much of the originating summons as consisted of the draft order forming a part thereof.

25. Having failed to obtain the whole of the originating summons at Patrick Chan J's hands, Mr Hunsworth now seeks the same at our hands. And he brings the matter before us by way of an application to us under Order 59 rule 14(3) which provides that:

"Where an ex parte application has been refused by the court below, an application for a similar purpose may be made to the Court of Appeal ex parte within 7 days after the date of the refusal."

26. The first objection that can be made to Mr Hunsworth's reliance on Order 59 rule 14(3) is this. The application refused below was not ex parte. Nor is the one to us now.

27. There is another objection. It is a more fundamental one. And it is this. The real question here is whether Patrick Chan J had jurisdiction to curtail the public's entitlement under Order 63 rule 4(1) by turning its unfettered entitlement thereunder into one subject to leave. If he did not, then the leave application to him would have been a nullity. And, likewise, the renewed application to us now would be a nullity. So the merits of the applications, if such merits were established, would destroy the jurisdiction to entertain the applications. In other words, the applications carry within them the seeds of their own destruction.

28. The entitlement which Mr Hunsworth asserts is his entitlement in law, as a member of the public, to obtain something by a routine administrative process. The person with the relevant administrative duty has refused Mr Hunsworth what he seeks by that administrative process. That refusal is, in the circumstances, understandable. But is it, at the end of the day, in conformity with the law?

Conclusion

29. In my judgment, that question falls to be answered in judicial review proceedings. That is the only proper way in which to seek an answer to it. So the question is not properly before us in the present application which cannot be entertained and must therefore be dismissed.

Godfrey, J.A.:

30. We have before us an application to the Court of Appeal (in its civil jurisdiction) under O.59 r.14 of the Rules of the Supreme Court, which provides that where an ex parte application has been refused by the court below, an application for a similar purpose may be made to the Court of Appeal ex parte within 7 days after the date of the refusal.

31. The background is as follows.

32. The applicant applied ex parte to P. Chan, J. to vary an "order" made by that judge which has had the effect of preventing the Supreme Court Registry from providing the applicant with a complete copy of an ex parte originating summons filed in the Registry. By this originating summons the Crown initiated proceedings under s.77E of the Evidence Ordinance, Cap.8, for the issue of a letter of request to the Judicial Court of Macau for assistance in taking evidence for the purposes of criminal proceedings which are likely to be instituted in Hong Kong. The applicant claims to be entitled to inspect, and take a copy, of that originating summons, pursuant to the provisions of O.63 r.4(1)(a) of the Rules of the Supreme Court. The Crown opposes this claim, on the ground that it is made in a criminal cause or matter.

33. I would, for my part, accept the Crown's submission that the proceedings initiated by this originating summons are proceedings in a "criminal cause or matter". The evidence the Crown seeks to obtain is sought with a view to the institution by the Crown of proceedings "the direct outcome of which may be trial of [the person against whom the evidence is sought] and his possible punishment for an alleged offence by a court claiming jurisdiction to do so" : see Amand v. Home Secretary [1943] AC 147, per Viscount Simon L.C. at p.156; and that, I would hold, is sufficient to justify the characterisation of the proceedings commenced by the originating summons here as criminal proceedings. It is irrelevant that no criminal proceedings against any person have yet been started : see Carr v. Atkins [1987] 1 QB 963. (The suggestion, which I made at first instance in Attorney General v. L. [1990] 1 HKLR 195, that proceedings such as those commenced by the originating summons here are civil proceedings, must be rejected.)

34. But is the fact that the proceedings commenced by originating summons here are proceedings in a criminal cause or matter sufficient to defeat the applicant's claim?

35. The Court of Appeal in Hong Kong is a court of unlimited civil and criminal jurisdiction : see s.3(2) of the Supreme Court Ordinance, Cap.4. Appeals to this court in its civil jurisdiction are governed by the Rules of the Supreme Court (made under s.54 of the Ordinance). With certain exceptions, the Rules of the Supreme Court do not have effect in relation to any criminal proceedings : see O.1 r.2(3). One of the specified exceptions is the case of criminal proceedings to which O.59 applies (O.59 governs appeals to the Court of Appeal in its civil jurisdiction). This seems to cover, for example, the case of an appeal to the Court of Appeal on an application for judicial review relating to a criminal cause or matter : see s.14A of the Supreme Court Ordinance; and the case of an appeal relating to a criminal contempt of court : see s.50(1). I can find no reference in the Supreme Court Ordinance, or in the Rules of the Supreme Court, to any other proceedings in a criminal cause or matter to which O.59 might apply (although I would accept that it would apply to an order for the issue, or refusing the issue, of a letter of request under s.77E of the Evidence Ordinance). Obviously, O.59 does not apply to appeals in criminal proceedings generally, since appeals to the Court of Appeal in such criminal proceedings are governed by the Criminal Appeals Rules, made under s.9 of the Criminal Procedure Ordinance, Cap.221, and not by the Rules of the Supreme Court.

36. But is the application presently before us made in a criminal cause or matter, or is it a collateral application, as the applicant submits? The application purports to be an application brought before the court in its civil jurisdiction. And the rights conferred on the public generally by Order 63 r.4(1)(a) are civil rights, applicable on the face of it to all originating summonses, no special exception being made for originating summonses issued in a criminal cause or matter. I am therefore of the opinion that it is not a sufficient answer to the applicant's claim for the Crown to demonstrate that the originating summons here was an originating summons issued in a criminal cause or matter; the present application is indeed merely collateral.

37. But the matter does not rest there. There is a different ground on which, as I think, we should refuse to entertain the present application; namely, that it relates to a purely administrative, and not a justiciable, matter. We are not placed here to control the use, or misuse, of their powers by those, such as the Registrar, Supreme Court, who are responsible for the delivery of the administrative services necessary for the conduct of civil litigation. When a member of the public is aggrieved by maladministration he is entitled, in a proper case, to have the administrative decision of which he complains subjected to judicial review. This is true of all civil service departments, including "the Judiciary" (using this term in its local, though inaccurate, sense). So here. The applicant is aggrieved by the refusal of the Supreme Court Registry to allow him to inspect a complete copy of the originating summons by which the Crown's s.77E proceedings were commenced. O.63 of the Rules of the Supreme Court, correctly described in the heading above it as relating to "GENERAL AND ADMINISTRATIVE PROVISIONS", is expressed to confer such a right of inspection on members of the public generally. If a member of the public is denied that right, the decision of the administrative officer responsible is amenable to judicial review. If the administrative officer has acted on the directions of a judge, he will no doubt be acquitted of any personal blame for his actions. But if as a matter of law, he was wrong so to act, because the judge had no power to give the directions on which he had acted, the High Court will review his actions and will grant the aggrieved member of the public the appropriate relief (cp. the Supreme Court Practice, 1995, Vol. 1, 59/1/25, where it is pointed out that no appeal lies from an administrative decision but that the remedy of judicial review may be available).

38. Here, P. Chan, J. had in my opinion no power to give the directions he purported to give, which operated to restrict the general right conferred on members of the public by O.63. When the legislature intends that "in the interest of justice or public order or security" a judge should be given special powers, e.g. to hold criminal proceedings in camera, it says so : see, for example, s.123 of the Criminal Procedure Ordinance, Cap.221. The suggestion that a judge has power, in the exercise of some "inherent jurisdiction", to dispense with the provisions of Order 63, and to direct to be "sealed" documents which under the Rules of the Supreme Court are mandated to be made available for inspection by the public, sends shivers down the spine.

39. But in my opinion the grievance of the applicant here is a grievance which he must ventilate in proceedings by way of judicial review of the act of the Registrar, Supreme Court (who is responsible for the Supreme Court Registry) in denying him the right conferred on members of the public by O.63 r.4(1)(a). In my opinion, he is not entitled to air that grievance by way of appeal to this court.

40. For this reason I would for my part refuse to entertain this application.

Mayo, J.A.:

41. This is an appeal against an Order made by P. Chan J when he declined to grant leave to the applicant to inspect a draft order which was annexed to an originating summons.

42. The Attorney General on 22 January 1996 issued an Ex parte originating summons for a Letter of Request to be issued to the Judicial Court of Macau for assistance in connection with proceedings it was contemplated would be instituted in Hong Kong. The application was made pursuant to s77E of the Evidence Ordinance Cap. 8.

43. P Chan J made an order in the terms sought. He also at the request of the Attorney General made a further order that all of the documents lodged with the court with the exception of the Originating Summons should be placed in a sealed envelope and that the seal could only be broken by order of the Court. The judge further ordered that application could be made to him to vary the terms of the order.

44. The applicant who is a solicitor made an application to the Registry pursuant to Order 63 rule 4 of the Rules of the Court to inspect the court file. The originating summons was produced to him but the staff in the Registry refused to permit him to sight the said draft order on the grounds that it had been placed in a sealed envelope and there was an order that the seal was not to be broken unless sanction from the court was obtained.

45. The applicant applied to the court Ex parte on notice for an order that he be permitted to inspect the said draft Order. Although the application was made pursuant to Order 63 rule 4(1)(a) it was contended before us that the applicant was not simply seeking to assert his rights as a member of the public but was also taking advantage of the indication given by P Chan J that anyone who wished to do so could address him further on the order he had originally made that the documents with the exception of the originating summons be placed in a sealed envelope.

46. After hearing submissions by Counsel for the Applicant and the Attorney General the judge declined to vary his order.

47. We were informed by Mr Pethes for the Attorney General that at the commencement of that hearing he had made a submission to the judge that he had no jurisdiction to entertain the application. Although P Chan J has not made reference to this in his judgment it would appear that he rejected the submission as he went on to hear the application.

48. Before us the parties agreed that we should determine as a preliminary issue whether we have jurisdiction to entertain this appeal. We agreed to this.

49. Mr Pethes submitted that the proceedings before the court were criminal proceedings. In support of this submission he contended that it was necessary to have regard to the nature of the proceedings which were before the court. He referred to two passages from the speeches of Lord Mustill in George Tan Soon-gin v. Judge Cameron and the Attorney General of Hong Kong [1992] 2 A.C. 205 (PC). The first was at p221:

" Their Lordships have no doubt that the approach of the Court of Appeal in the present case was right. The language of the Ordinance directs attention, not to the proceedings which led to the order from which the appeal is brought, but to the nature of the cause or matter 'in' which the appeal is brought. If the cause or matter is properly characterised as criminal, it cannot lose that character simply because at one stage it is carried forward by techniques which closely resemble those employed in civil matters, or which lead to relief often granted in civil matters, or which are available in civil or criminal matters alike; any more than, having gained this new character by the employment of such techniques, it would revert to its former status when the deployment of the techniques came to an end. The position is surely much simpler than this. Nobody could doubt that the applications made by the applicant to the district judge were applications in a criminal cause, for their purpose was to determine the way in which the prosecution should proceed."

50. The second was at p217 when he cited with approval the speech of Viscount Simon L.C. at pp156-7 in Amand v. Home Secretary and Minister of Defence of Royal Netherlands Government [1943] A.C. 147:

"' It is the nature and character of the proceeding in which habeas corpus is sought which provide the test. If the matter is one of the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal .... The proceedings in the present case are for the direct purpose of handing the appellant over so that he may be dealt with on these charges. Whether they are hereafter withdrawn or disproved does not affect the criminal character of the matter in the least ....'

So also Lord Wright, at pp.159-162:

' The words 'cause or matter' are, in my opinion, apt to include any form of proceeding. The word 'matter' does not refer to the subject matter of the proceeding, but to the proceeding itself. It is introduced to exclude any limited definition of the word 'cause'. In the present case, the immediate proceeding in which the order was made was not the cause or matter to which the section refers. The cause or matter in question was the application to the court to exercise its powers under the Allied Forces Act and the order, and to deliver the appellant to the Dutch military authorities. It is in reference to the nature of that proceeding that it must be determined whether there was an order made in a criminal cause or matter. That was the matter of substantive law. The writ of habeas corpus deals with the machinery of justice, and is essentially a procedural writ, the object of which is to enforce a legal right .... The principle which I deduce from the authorities I have cited and the other relevant authorities which I have considered, is that if the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment, such as imprisonment or fine, it is a 'criminal cause or matter'. The person charged is thus put in jeopardy. Every order made in such a cause or matter by an English court, is an order in a criminal cause or matter, even though the order, taken by itself, is neutral in character and might equally have been made in a cause or matter which is not criminal.'"

51. Mr Pethes further argued that it was immaterial that no criminal proceedings had yet been instituted. The fact that they were contemplated was sufficient. His authority for this was the judgment of Sir John Donaldson MR as he then was at 968 of Carr and Others v. Atkins (CA) [1987] 1 QB 963:

" It is to my mind clear beyond argument that the order which was made in this case was made in a criminal context, but it is right to note, as Mr Shaw has stressed, that there are no proceedings in existence. In the limited time that has been available I have not been able to find out whether this Act could or would be used where criminal proceedings have begun, but it does not really matter for Mr Shaw's purposes. It is sufficient to note that no criminal proceedings have been begun here and, indeed, in most cases there is no doubt that orders would be sought under this Act where a decision had not yet been reached whether or not to prosecute. It is essentially a statutory provision in aid of a criminal investigation designed, if the evidence will stand it, to lead to a criminal prosecution. But unless it is to be said that an order under the Act is either never or very rarely one which is by its nature a criminal cause or matter merely because of the stage at which the order is made, then the fact that there are no criminal proceedings does not, in my judgment, matter. That fact stems purely from the nature of the Act and the statutory provisions and does not affect the criminal characters of the proceedings."

52. Mr Pethes continued that if indeed it is the case that these proceedings are criminal proceedings the jurisdiction of the Court of Appeal is circumscribed. It is provided for in section 13 of the Supreme Court Ordinance Cap. 4. Section 13(2) only provides for appeals from civil causes and s13(3) which provides for criminal appeals does not provide for an appeal such as the present appeal.

53. This difficulty is compounded by the fact that although there is a power to make rules in s77E(5) no rules have yet been made.

54. Mr Pethes did not accept that the rules of the Supreme Court had any application to the present proceedings.

55. Mr Bleach for the Applicant contended that even if the underlying proceedings were criminal proceedings it could still be the case that the application for the Letters of Request was a civil cause or matter. In support of this contention he placed reliance upon a passage on p478 of In re O. [1991] 2 WLR 475 from the judgment of Lord Donaldson:

" As the order complained of was interlocutory in character, the applicants needed leave to appeal. They also needed an order extending the time for giving notice of appeal. Neither application was opposed by the Crown Prosecution Service and it was clearly right not to do so. However there was an obvious jurisdictional question, namely, whether the right of appeal was excluded by section 18(1) of the Supreme Court Act 1981, which provides: 'No appeal shall lie to the Court of Appeal - (a) ... from any judgment of the High Court in any criminal cause or matter.' With the assistance of counsel for the applicants and the Crown Prosecution Service we considered this question and concluded that this was not such an order and that the court accordingly had jurisdiction to entertain the appeal.

I have now to give my reasons for reaching this conclusion. Essentially the issue in such cases as this is whether the order sought to be appealed was a judgment in a criminal cause or matter or merely a judgment collateral to a criminal cause or matter. If it is in the former category, the court has no jurisdiction. If it is in the latter category, there is jurisdiction. Reference is made in The Supreme Court Practice 1991, vol. 1, note 59/1/21 to some of the many cases in which this point has arisen for decision. The best illustration of the dividing line for present purposes is probably provided by a comparison between Bonalumi v. Secretary of State for the Home Department [1985] Q.B. 675 and Gooch v. Ewing [1986] Q.B. 791."

56. He argued that the application for and the granting of Letters of Request was collateral to the main purpose of the contemplated criminal proceedings.

57. There would appear to be several indications that this argument is correct.

58. Although no rules have been made pursuant to s77E(5) of the Evidence Ordinance it will be noted from the subsection that it is anticipated that if rules are to be made they would be made pursuant to s54 of the Supreme Court Ordinance which envisages that the rules would be civil rather than criminal rules.

59. When the original application had been made for the Letter of Request to issue an originating summons had been taken out as this was the procedure which had been suggested by Godfrey J as he then was in the Attorney General v. L (1990) 1 HKLR 195. It was clear however from Godfrey J's judgment that he accepted that an application for a letter of request to issue had similar characteristics to an application for a search warrant.

60. Notwithstanding this it has to be accepted that the Attorney General did issue the originating summons for the letter of request pursuant to Order 5 rule 3 of the Rules of the Supreme Court. The fact that the letter of request was required to assist in the furtherance of contemplated criminal proceedings does not seem to me to divest this court of jurisdiction.

61. Section 3 of the Supreme Court Ordinance Cap. 4 confers unlimited civil and criminal jurisdiction upon the Court of Appeal and I am satisfied that there is a power to hear this appeal even if the application for the letters of request was a criminal proceeding.

62. A further question which arises is whether P Chan J was in fact performing a judicial function when he made his order that all of the documents filed in court with the exception of the originating summons should be placed in a sealed envelope. It could be argued that all that he was doing was giving administrative directions. I do not think that this is right. The relevant passage at p9 from P Chan J's Decision is as follows:

" It is correct that the Originating Summons refers to 'an Order to be made ... in the form set out in the draft Order annexed hereto' and arguably it forms part of the Originating Summons. In my view, when it was issued, the Originating Summons had this annexure and was therefore valid. In any event, it also has a concise statement of the relief sought with sufficient particulars. Hence, even without the annexure, the requirements of Order 7 rule 3(1) have been complied with and it is still valid. Even if the draft can be said to be part of the Originating Summons, once the court made an order in chambers in those terms, it is no longer a draft. It forms material which falls within Order 63 rule 4(1)(c) and cannot be inspected without the leave of the court. Furthermore, the court has an inherent jurisdiction to expunge any part of a court document for good reasons, as in cases where such part is scandalous, irrelevant or oppressive. In the present case, there are good reasons for doing so: first, the draft order has become an order of the court made in chambers and second, disclosure of it may affect on-going criminal investigations."

63. It would seem that the learned judge appeared himself to be under the impression that he was making an adjudication upon the application which lay before him.

64. Another way of testing this is to ask the question whether if anyone disobeyed the order they would place themselves on hazard for committing a contempt of court. I think that the answer must clearly be that they would and this reinforces the view that P Chan J was acting judicially when he made the order and that any order made could be the subject of an appeal.

65. It should also be noted that Order 1 rule 2(3) which states that the rules do not apply to criminal proceedings specifically excepts Order 59 from the operation of that sub-rule.

66. Order 59 rule 14(3) provides that where an ex parte application has been refused a similar application can be made within 7 days to the Court of Appeal.

67. In this connection it is significant that it is the applicant's case that he is not simply asserting his right as a member of the public to be permitted to inspect the draft order. He is appealing against the Ex parte Order made by P Chan J refusing to let him inspect the Order.

68. For all of these reasons I have come to the conclusion that the Court of Appeal does have jurisdiction to entertain this appeal.

69. This then leads to the next question which is whether we should interfere with the judge's order.

70. Mr Pethes was unable to point to any power being reposed in the judge to make the order he did other than placing reliance upon the inherent jurisdiction of the Court.

71. It needs to be borne in mind that there was no necessity for the details which are contained in the annexure to be included in the originating summons. It would have been possible to frame the application in general terms and include the necessary detailed particulars in the supporting affidavit. In effect what this means is that the judge was being asked to rectify or remedy an error which was made by those preparing the documentation.

72. This has to be balanced against the provisions which are contained in Order 63 rule 4:

"4(1) Any person shall, on payment of the prescribed fee, be entitled during office hours to search for, inspect and take a copy of any of the following documents filed in the Central Office, namely -

(a) the copy of any writ of summons or other originating process,

(b) any judgment or order given or made in court or the copy of any such judgment or order, and

(c) with the leave of the Court, which may be granted on an application made ex parte, any other document.

(2) Nothing in the foregoing provisions shall be taken as preventing any party to a cause or matter searching for, inspecting and taking or bespeaking a copy of any affidavit or other document filed in the Central Office in that cause or matter or filed therein before the commencement of that cause or matter but made with a view to its commencement."

73. So far as the originating process is concerned there is no power conferred upon anyone to limit access to such a document when it has been filed in the registry.

74. The passage on p16 of the judgment of Fuad JA in Wo Fung Paper Making Factory Ltd. v. Sappi Kraft (Pty) Ltd. [1988] HKC 10 at p16 is authority for the proposition that the inherent jurisdiction of the court cannot be invoked to alter or amend the operation of the Rules of the Court.

" As the judge observed, the power to make rules of court is vested in the Rules Committee by s54 of the Supreme Court Ordinance. Provided any particular rule is intra vires the rule-making powers conferred upon the Committee by ss54, 55A, 55B, 55C, 56 or 56A, since the rule will have been made under powers given by statute, the rule itself would have the power of a statute in matters of procedure. If any authority were needed for this proposition, it is to be found, for example, in the speech of Lord Summer in Hontesroom (SS) v. Sagaporack (SS) [1927] AC 37, 47.

With very great respect to the judge, in my view, he was clearly wrong when he was persuaded to accept the contention put forward on behalf of Sappi that the court could use its inherent jurisdiction to break the fetters imposed by O12 r8(2).

That rule was criticized as being 'rigid and draconian' by Robert Goff J (as he then was) in Carmel Exporters (Sales) Ltd. v. Sea Land Services Inc. [1981]1 All ER 984, 989 (a case referred to by the judge).

Clearly, the potentially harsh results of O12 r8(2) were recognized in the United Kingdom because that rule was revoked there in 1983. However, the rule remained in force in Hong Kong when the matter was before Liu J I am given to understand that it will be revoked here soon by amending rules which will shortly be published.

While O12 r8(2) stood, the judge was bound by it and there was no escape from its pitiless embrace. Mr Litton, who appeared for Sappi before us but not before the judge, did not expressly concede that this was so, but did not press a contrary contention very hard upon us, relying more on other grounds as will be seen."

75. In my view however laudable were the intentions of the judge it was not open to him to make the order he did and this appeal should be allowed.

76. I would add that even if the view is taken that the learned judge had no jurisdiction to make the order he did I would still be of the opinion that the appeal should be allowed. If a judge makes an order which is a nullity the Court of Appeal by virtue of its powers under Order 59 is able to set aside the order.

Bokhary JA:

77. By a majority this application is dismissed on the ground that it cannot be entertained. We thank counsel for their assistance, and will now hear them on costs.

Representation:

Mr J Bleach QC (instructed by Messrs Johnson, Stokes & Master) for the applicant, Mr Nicholas Hunsworth

Mr J A Pethes & Ms Sou Chiam (of the Attorney General's Chambers) for the respondent, the Crown