Read the full judgment text of CACV 101/2013; CACV 107/2013 on BabelCite. This Court of Appeal judgment was delivered on 10 January 2014 before Lam VP, Kwan JA, Barma JA.
Civil procedure – access to court documents – inherent jurisdiction of court to control access to documents in its custody – Secretary for Justice's application for documents from matrimonial proceedings for criminal investigation into alleged perjury, forgery and conspiracy to pervert the course of justice – privilege against self-incrimination – whether engaged – whether abrogated in matrimonial proceedings – whether absolute bar to access – legal professional privilege – Cox and Railton exception – whether court bound by earlier ruling – res judicata and abuse of process – balancing exercise – implied undertaking – release for purpose of criminal investigation – Family proceedings – confidentiality – open justice. The appeals concerned the 2nd to 4th Defendants' challenges to an order of Ng J in HCMP 188/2012 granting the Secretary for Justice access to documents in the custody of the court, filed, lodged or placed before Saunders J in HCMC 5/2008 and HCA 566/2010, for the purpose of a criminal investigation into allegations of perjury, forgery and conspiracy to pervert the course of justice arising from the matrimonial proceedings, and releasing the 1st Defendant (FTCW, "the Wife") from her implied undertaking for the same purpose. The court held that the court has inherent jurisdiction to control access to documents in its custody, based on the principle of open justice and the need to protect the integrity of the judicial process, following R (Guardian News and Media Ltd) v Westminster Magistrates' Court. The court rejected the argument that specific rules such as Order 63 abrogated this inherent jurisdiction. On the privilege against self-incrimination (PSI), the court held that PSI was not engaged because the documents filed, lodged or placed before the court formed part of the conduct constituting the alleged perjury, forgery and conspiracy, drawing the Allen v UK distinction between statements constituting the offence itself and statements about prior offences. The court further held, following HKSAR v Lee Ming Tee and A v ICAC, that even if PSI were engaged, it would not present an absolute bar to access but only prevent the direct use of materials in evidence at a criminal trial, with derivative use permissible. The court declined to follow R v K, holding that there was no wholesale abrogation of PSI in matrimonial proceedings by necessary implication from the duty of full and frank disclosure. On legal professional privilege (LPP), the court held that the Judge erred in adopting the rulings of Saunders J on the Cox and Railton exception as the Secretary for Justice was not a privy to the matrimonial proceedings, following Hollington v Hewthron. The court considered the extended doctrine of res judicata under King's City Holdings Ltd v De Monsa Investments Ltd and held that the Director had not established manifest unfairness or bringing the administration of justice into disrepute sufficient to bar re-litigation. The LPP claims were remitted to the Court of First Instance for proper identification and determination, with the Director given an opportunity to make out the Cox and Railton exception afresh. On the balancing exercise, the court found the balance overwhelmingly in favour of granting access, with the public interest in investigating perjury, forgery and conspiracy outweighing the countervailing factors advanced. On the Wife's application for release from her implied undertaking, the court dismissed the appeal and granted release, holding that the implied undertaking also covers information derived from documents, making an effective report to the police impossible without release; the seriousness of the alleged criminal conduct and the public interest in upholding the integrity of the administration of justice favoured release; and the Husband and STL were bound by Saunders J's Cox and Railton rulings vis-à-vis the Wife by reason of issue estoppel. The appeal against paragraph 1 was allowed in part with directions, the appeal against paragraph 2 was dismissed, and the Husband and STL were ordered to pay the Wife's costs and 60% of the Director's costs, with an interim stay of 21 days in respect of paragraph 2.
Legal issues: Inherent jurisdiction to grant access to documents in court custody · Whether privilege against self-incrimination is engaged · Effect of PSI on grant of access · Whether the Judge erred in adopting Saunders J's rulings on LPP · Balancing exercise for access · Release of Wife from implied undertaking
Outcome: Appeal against paragraph 1 of the Judge's order allowed in part, with directions for the LPP claims to be remitted to a judge of the Court of First Instance for proper determination; appeal against paragraph 2 of the Judge's order (release of the Wife from her implied undertaking) dismissed; interim stay of 21 days granted in respect of execution of paragraph 2.
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