L v. L

FCMC000138/1984

DJ138/84

Application by a "Public Figure" to have a petition in divorce heard in camera.

Review of U.K. Authorities and observations on evidential onus on applicant. Consideration of circumstances when such an application may be granted, and limitations thereto.

IN THE DISTRICT COURT OF HONG KONG

DIVORCE JURISDICTION

No. 138 of 1984

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BETWEEN

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Date: 7 September 1984

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JUDGMENT

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1. The parties were married in April or May of 1937 and the husband has filed a petition in divorce dated the 12th January, 1984, alleging that Respondent has behaved in such a way that he cannot reasonably be expected to live with her. Various detailed particulars have been pleaded. Respondent denies or explains these particulars in her Answer and in turn she has cross-petitioned for a decree of judicial separation, alleging that she cannot reasonably be expected to live with Petitioner, and as a consequence of this Answer Petitioner has filed a Reply.

2. Petitioner has applied by way of summons dated the 3rd August, 1984, filed the following day, for an order to be made that :

"	(1)	The hearing of this petition be conducted in camera.
	(2)	Costs be provided for."

3. The application is opposed by Respondent and the only evidence before me is an affidavit of the Petitioner and two medical reports, one from 1974 and the other 1984. Respondent has elected not to file any affidavit, however, I am informed that she will, at the appropriate time take issue with the Petitioner, over at least one aspect of the doctor's report involving her relation's with Petitioner.

4. The application has been presented in argument under two heads :

(1)	Petitioners position in the community and
(2)	The fortunate state of Petitioner's health as evidenced by the medical reports.

5. As far as Petitioner himself is concerned he is indubitably a well-known public figure, a philanthropist, a community and business leader possessed of both fame and fortune with various honours conferred upon him.

6. Respondent has not advanced any evidence to show her position in society although various matters have been traversed in the Particulars of the Petition and Particulars of the Cross-Petition relating to her status as Petitioner's wife and her own failing health.

7. There are six children of the family all over the age of 21 and at various stages in the particulars there are references to grandchildren. May I take this opportunity of entering a plea on behalf of both the children and the grandchildren. That is for each of the parties to reconsider their position in relation to the allegations each has made against the other and further consider with the advice of their counsel and solicitors the possibility of proceeding to a decree of dissolution of marriage on the basis of two years living apart with the consent of the spouse. So many people less blessed than either Petitioner or Respondent do see their way clear to such a course of action, for various considerations, not least being the interests of any children concerned.

8. It is common ground that the Court has jurisdiction to deal with this matter and Miss Leong in answer to a specific question from the bench, acknowledged on behalf of the Respondent that the Court did have jurisdiction, and I assume that she has made this concession on the basis of the reasoning adopted by the full bench in Xavier v Xavier⁽¹⁾ following Jennison v Baker.⁽²⁾ However, it is pressed upon me by Miss Leong that the discretion of the Court is extremely limited and further she presents two further submissions :

(1)    The application is too general in its scope; and

(2)    That the application is premature.

THE LAW

9. Mr. Daniel Fung, opening for the Petitioner, referred me to the various textbooks and there can be no doubt that in a number of instances a Court does have jurisdiction to hear cases in camera. The logic is quite clear for persons suffering from mental illness, wards of Court, cases concerning adoption of children and even appeals relating to the custody of children heard by the Court of Appeal may all be heard in camera. Other instances are where publicity would defeat the object of the action, for example, proceedings to retrain disclosure of confidential communications or actions involving a secret process. Another head is where it is necessary for the due administration or where publicity would prevent justice being done and in such instances departure from the general rule is justified to the extent and no more than the extent that the Court reasonably believes it to be necessary in order to serve the ends of justice. An example, which, should requires no elucidation is trials under the Official Secret Act where the interests of the State may be imperilled.

10. The head under which Mr. Fung seeks to bring the instant case is that head where "witnesses in divorce suits cannot give their evidence properly in public" and one of the best illustrations is Moosbrugger v. Moosbrugger.⁽³⁾

11. What is also clear is that the public ought not to be excluded any longer than is necessary.

12. The House of Lords considered the position in Scott v. Scott ⁽⁴⁾ Viscount Haldane L.C. after considering a number of earlier cases stated at p.438.

"But unalese it be strictly necessary for the attainment of justice, there can be no power in the Court to hear is camera either a matrimonial cause or any othee where there is contest between parties. He who maintains that by no other means than by such a hearing can justice be done, may apply for an unusual procedure but he must make out his case strictly and bring it up to the standard which the underlying principle requires."

And at P.439.

"A mere desire to consider feelings of delicacy or to exclude from publicity details which will be desirable not to publish is not, I repeat enough as the law now stands. I think that to justify as order for hearing in camera it must be shown that the paramount object of securing that justice is done would really be reudered doubtful of attainment if the order were not made."

Also per Earl Loreburn :

In case where it in shown that the administration of Justice would be rendered impracticable by the presence of the public, as for example where a party would be reasonably be deterred by publicity from seeking relief at the hands of the Court an order for hearing a matrimonial suit in camera may be made (P.466 paraphrased in the Headnote.)

13. In Moosbrugger v. Moosbrugger ⁽³⁾ there were cross suits for divorce and after the case for the wife had been opened in public, the wife, being called as a witness, found it almost impossible to give her evidence by reason of the presence of people in Court and to cope with the situation the President "directed this part of the case to be heard in camera."

14. Mr. Fung relied heavily on Barritt v. Attorney General ⁽⁵⁾ a decision of Wranghan J. This case was of interest in that it was the first application brought subsequent to the enactment of Section 2 of the Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968. Such a provision is not extant in Hong Hong and the views of the same judge were expressed at a time when the law in England stood in the same position as the law in Hong long now is, should be considered. I refer to B v. Attorney General.⁽⁶⁾ This was a legitimacy suit application and Wrangham J. referred to the earlier authorities D v D ⁽⁷⁾ and Greenway v. Attorney Gerneral.⁽⁸⁾ In the latter Case it was said by Lord Merrivale P.

"I myself, do not regard it as part of the law laid down by Scott v. Scott (4) that if publicity will deter a litigant from proceeding to obtain redress, he should be allowed to bring his suit in camera."

15. It is note worthy that Moosbrugger v. Moosbrugger ⁽³⁾ was not referred to by the learned judge in his review of earlier authorities and his conclusion was that he held that he had no power to make an order for hearing in camera in the circumstances which existed in the proceedings under review.

16. However, Wrangham J. did pass on counsel's request to have members of the public withdraw.

17. Barritt v. Attorney General ⁽⁵⁾ was a legitimacy suit whereas other suits arose out of petitions for decrees of divorce, Nullity or Judicial Separation.

18. I am of the view that exceptional circumstances may exist whereby a hearing in camera may be allowed and that if publicity were to reasonably deter a party from seeking redress or interfere with the effective trial of the case then an order for hearing or partial bearing in camera may lawfully be made.

19. Further it is my opinion that such exceptional circumstances must be strictly proved to a standard higher than that pertaining in the usual type of civil ease. i.e. to that degree when criminal activity is alleged in a civil case i.e. fraud.

CONCLUSIONS

20. The Petitioner occupies a position of responsibility and influence, indeed power, and power must beget responsibility for as been pointed out by Stanley Baldwen in another context;

"Power without responsibility, is the prerogative of the harlot throughout the ages."

21. There are easy persons who come before my own Court and those of my brother judges dealing with family matters in the District Court, who occupy positions of responsibility in the community. Embarrasement of a public figure cannot, in my view, constitute grounds for the Court ordering that a petition be heard in camera.

22. Mr. Daniel Fung on behalf of Petitioner has argued most persuasively that his client being " a man in the lime light" and with such a "high public profile" the press will take an interest in his private affairs. Indeed it could be that the press would be interested in the private marital affairs of senior civil servants, senior police officers, members of the judiciary, leading community figures and leading social lights, film and TV stars, but this of itself can never, in my view, be anything near sufficient to extend protection from the Court to parties to a matrimonial suit by giving them privacy. Indeed there already is some protection extended by the Judicial Proceedings (Regulation of Reperts) Ordinance Cap. 287. However, I take the view such protection is not wide enough to alley Petitioner's apprehensions.

23. Mr. Fung argues that it is the Petitioner's position in society coupled with the medical evidence available, that Petitioner may suffer embarrassment, here he is on stronger ground. However I must address myself to Miss Leong's submissions. She has argued that the prospect of embarrassment, the prospect of the press being present together with other members of the public is at this stage nothing more than speculation, and she argues most strongly that the only proper time to make an application is when such prospects are realised and that any party's apprehensions formulated prior to hearing are confirmed by events occurring in and about the Court room.

24. I do not adopt Miss Leong's submission in its entirely. I believe that it is perfectly proper, and indeed possibly necessary in the interests of justice, for such an order to be applied for and considered by the judge hearing a matrimonial suit at the time events occur as described by Miss Leong. However, I also believe that prior to the hearing of a petition it is open for a party to take out such a summons as is presented in the instant case, and that this together with appropriate evidence may constitute sufficient grounds for the Court to exercise its discretion provided the limits of the rule enunciated in Scott v. Scott ⁽⁴⁾ and those cases following, be adhered to.

25. Even Mrs. Simpson's petition was not heard in camera.

26. In this case Petitioner has completely failed to establish that the whole of the petition should be heard in camera. There are only two paragraphs in the voluminous pleadings which are relevant : paragraph 17(c) of Respondent's Answer and paragraph 18(g) of Petitioner's Reply to Answer, this referring back to paragraph 17(c). Evidence adduced relating to both such allegations and Petitioner's denial say necessarily, is fact I am prepared to, for the purposes of this decision to hold, must necessarily involve medical evidence relating to Petitioner's state of health the history of this going back, along the lines dealt with is the medical reports.

27. Such matters may, and I stress may, cause Petitioner such concern that he is unable to proceed with the hearing of his petition and therefore be deprived of his opportunity of seeking justice from Her Majesty's Courts by virtue of the fact

"that he would be reasonably deterred by publicity from seeking relief at the Hands of the Court ......."

28. If this were to be accepted by a judge as being the position, then it would be proper for a Court to make an order limited to the matters I have just adverted to and those matters only.

29. The evidence in this case does not support such a finding - there is no evidence as to Petitioner being reasonably. deterred from pursuing his remedy. He refers in his affidavit to "serious misgivings", "cause me severe embarrassment" and "Cause me considerable embarrassment." but I am unable to find in Petitioner's favour in this regard.

30. However, future events may well transpire in that Petitioner faced with my present ruling feels that he is unable to proceed with his petition but Respondent may proceed with her petition for Judicial Separation and other ancillary relief, whereby the matters which have caused Petitioner such concern and have prevented his from proceeding could be ventilated during hering of the Cross-Petition. In such circumstances Petitioner would, in my view, have made out his case that the evidence would cause him such excessive embarrassment that he is unable, or feels himself unable, to come to the Courts for justice, and upon application being made to me in such circumstances I would be prepared to make such an order.

31. I stress that my  present ruling should not bind any other judge who may be called upon to deal with the Petition and Cross-Petition (I believe they have been set down for hearing during my absence on anneal leave). It is proper for Petitioner, should he elect to continue with this petition, to reopen his application at the times urged upon me by Miss Leong as being the appropriate times, and the matter can be dealt with in the light of the circumstances then pertaining and it may well transpire that a situation similar to that extant in Mossbrugger v. Mossbrugger would apply.

32. The application brought by Petitioner for hearing of the petition in camera hereby stands dismissed. Respondent shall have the costs of and incidental to this application, in any event, such costs to be taxed and to be on the Upper Scale, with a certificate for counsel.

(1) 1976 HKLR P.964

(2) (1972) 1 AER 997

(3) 1913 TLR 658

(4) 1913 AC P.417

(5) 1971 HKLR 1713

(6) 1967 P.119

(7) 1903 P.144

(8) (1927) 44 TLR 124

Representation:

Mr. Daniel Fung instructed by Woo & Woo for Petitioner.

Miss J. Leong instructed by Peter C. Wong & Co. for Respondent.