Huang Hsin Yang v. Bank of China (Hong Kong) Ltd

CACV 186/2007 & CACV 219/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 186 AND 219 OF 2007

(ON APPEAL FROM HCSD NO. 3 OF 2005)

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BETWEEN

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Before: Hon Tang VP and Le Pichon JA in Court

Date of Hearing: 10 August 2007

Date of Judgment : 17 August 2007

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Judgment

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Hon Tang VP:

1.On 24 May 2004, a statutory demand was served on the applicant by the respondent.

2.On 25 February 2005, the applicant issued an originating summons to set aside the statutory demand.

3.On 7 February 2007, the hearing of the originating summons concluded before Deputy Judge L Chan.  He reserved judgment.

4.On 13 February 2007, the applicant filed a notice to act in person.

5.On 14 February 2007, he applied for an order that the learned Deputy Judge should disqualify himself for apparent bias.

6.The hearing of the recusal application was fixed to be heard on 16 June 2007.

7.On 28 May 2007, the applicant applied by letter for leave to publish the transcript of the proceedings.

8.The grounds for such application were stated in the applicant’s letter of 1 June 2007 as follows:

“

The ground of the application is freedom of speech and freedom to impart information, which is a freedom guaranteed by the Basic Law.  I am the subject of the present proceedings and would like to share my experience in court proceedings with others.  Also, the present matter concerns administration of justice and the public has the right to know about it.  I am advised that the proceedings would have been open to public save for protection of the interest of my private life under Article 10 of the Hong Kong Bill of Rights Ordinance (Cap. 383), such that the material I sought to have published would have been in the public domain anyhow.  For the interest of justice, I now waive such protection to the extent of having the material stated in my previous letter published.”

9.On 2 June 2007, the applicant applied by letter for the recusal proceedings “to be open to public”.

10.Both applications were opposed by the respondent.

11.Both applications were refused by the judge.

12.His reasons appeared in the letter written by the Registrar under the direction of the learned Deputy Judge by letter dated 13 June 2007.

“	The application to set aside the statutory demand was heard in chambers (not open to the public).  The hearing of the application has finished.  The decision is pending the application for my recusal from the application.  Since the hearing of the application to set aside was not open to the public and there has not been any change in circumstance which would justify changing the mode of hearing, I would not order the hearing of the recusal application to be open to the public.
	On the application for leave to publish the transcript to the public, I do not think such publication would enhance the administration of justice in this case particularly before the availability of the decision on the application for recusal or the decision in the application to set aside, if any.
	I decline both applications.”

13.This is the applicant’s appeal.  CACV 219 of 2007 concerns the judge’s refusal to grant leave to publish the transcript.  CACV 186 of 2007 relates to the recusal proceedings.

14.To complete the chronology, on 18 June 2007, after the learned Deputy Judge declined the applicant’s application for an adjournment of the recusal application pending his appeal, the applicant fainted.  The recusal application was then adjourned with the direction that an early date be fixed for the adjourned hearing.  The adjourned hearing is fixed for 24 August 2007.

Public hearing

15.Open administration of justice is of fundamental importance.  It lies at the heart of the common law, and is supported by many statements of the highest authority.  I take as an example the observations of Lord Diplock in AG v Leveller Magazine Ltd [1979] AC 440 at 449 that:

“

As a general rule the English system of administering justice does require that it be done in public: Scott v Scott [1913] AC 417. If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this.

However, since the purpose of the general rule is to serve the ends of justice it may be necessary to depart from it where the nature or circumstances of the particular proceeding are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection Parliament has made some statutory derogation from the rule.”

16.Open justice is also enshrined by Article 10 of the Hong Kong Bill of Rights, which requires public hearings but that:

“

… The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.”

17.The application to set aside the statutory demand falls within Schedule 2 of Practice Direction (“PD”) 25.1, as such they “would usually not be open to the public”.

18.That is because:

“	4	(a)	… In relation to such proceedings, it is considered that having regard to their nature, one or more of the reasons for excluding the press and the public laid down in Article 10 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (‘Article 10’) are usually satisfied.  Accordingly, such proceedings would usually not be open to the public.
		(b)	However, if in a particular case, the court is of the view that none of the reasons in Article 10 is satisfied in the circumstances of the case concerned, the court may, whether upon a party’s application (as to which see paragraph 7) or on its own motion, order that the hearing be open to the public.”  PD25.1/1

19.The reason is obvious.  Publicity that a statutory demand has been served may severely damage a person’s reputation or credit.  So it is necessary for the protection of the alleged debtor, that such proceedings should not be open to the public.

20.But, even so, as para. 4(b) quoted above shows, in a suitable case, “the court may, …  order that the hearing be open to the public.”  Thus, it may be that, for example, where the alleged debtor wishes it the court may order the hearing to be open to the public.

21.We are no longer concerned with whether such proceedings should be open to the public.  We are concerned with whether the recusal proceedings should be heard in public.

22.We believe that unless one or more of the reasons under Article 10 are satisfied, the recusal proceedings should be heard in public.

23.The only reason given by the judge against hearing the recusal proceedings in public was that the application to set aside had been heard in private, and “there has not been any change of circumstances which would justify changing the mode of hearing (he) would not order the hearing of the recusal proceedings to be open to the public”.  I do not believe that to be a sound reason for the recusal proceedings not to be heard in public.  The recusal proceeding is itself an important change in circumstance.

24.The respondent opposed both applications.  Essentially, on the basis that they had proceeded on the understanding that the application to set aside should not be open to the public.  Ms Po for the respondent also submitted that there were matters of bank policy which the respondent would not have been prepared to disclose or disclose in the way that they had been disclosed had the proceedings been conducted in public.

25.I accept that it is highly likely that the transcripts of the proceedings to set aside the statutory demand will be referred to and relied on in the recusal proceedings.  But if such transcripts are relevant to the recusal proceedings, I cannot see why that should be a reason for not hearing the recusal proceedings in public.  If necessary some limitation on reporting could be made by the judge.

26.I would allow the applicant’s appeal against the judge’s refusal to hear the recusal application in public.

Transcripts

27.Ms Eugenia Yang, counsel for the applicant, informed us that the applicant intended to provide the transcripts relating to the setting aside proceedings to the media, so that they can report on the proceedings.

28.Ms Yang submitted that it is his fundamental human right to do so.

29.We have not been provided with any transcript.

30.The setting aside proceedings have not concluded, judgment has been reserved but there are the recusal proceedings which might result in a re-hearing.  The hearings were not open to the public.  There was no application at the material time by the applicant otherwise.

31.As Lord Woolf said in Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056 at 1073:

“

… The decision as to what to do in any particular situation to provide information for the public will be for the discretion of the judge conducting the hearing. As long as he bears in mind the importance of the principle that justice should be administered in a manner which is as open as is practical in the particular circumstances, higher courts will not interfere with the judge’s decision unless there is good reason for doing so.”  At 1071.

32.The applicant appeared to be willing not to publish the transcript until after the recusal proceedings have been concluded.  So there is no urgency in the matter.

33.Pending the final disposition of the application to set aside the statutory demand and since we have not been supplied with the transcripts nor adequate submission by counsel, I am not satisfied that on the material before us the leave Deputy Judge’s exercise of discretion was wrong.

34.Whether any future application should be granted must depend on the circumstances.

35.Thus, I would dismiss CACV 219 of 2007.

36.As for costs, I would make no order as to costs.

Hon Le Pichon JA:

37.I agree.

Hon Tang VP :

38.The appeal of CACV 186 of 2007 is allowed. The appeal of CACV 219 of 2007 is dismissed. No order as to costs.

Ms Eugenia Yang, instructed by Messrs Pansy Leung Tang & Chua, for the

Ms Po Wing Kay, instructed by Messrs Ford Kwan & Co., for the