FAMV Nos. 34 &35 of 2014
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NOS. 34 & 35 OF 2014 (CIVIL)
(ON APPLICATION FOR LEAVE TO APPEAL FROM CACV NO. 154 OF 2012)
REASONS FOR DETERMINATION
Mr Justice Ribeiro PJ :
1. At the hearing, we dismissed this application for leave to appeal for reasons which we now provide.
2. These were two applications in identical terms for leave to appeal brought by Mr Samuel Tak Lee (“STL”), the 2nd Intervener in matrimonial ancillary relief proceedings between his son, Mr Samathur Li Kin Kan (“H”) and his former daughter-in-law, Ms Florence Tsang Chiu-wing (“W”). STL sought leave to appeal against the Court of Appeal’s dismissal of his appeal against a direction made by the trial Judge, Saunders J, to the Registrar of the High Court to forward an un-redactedcopy of his ancillary relief judgment to the DPP.
3. The background events are described in this Court’s judgment in Secretary for Justice v Florence Tsang Chiu Wing and Others(“the Disclosure Judgment”) and that description will not be repeated here. The Judge decided to refer his ancillary relief judgment to the DPP becauseof his findings, made on the civil standard of proof, that H and STL had forged a certain document with a view to minimising theassets available for distribution to W. H and STL objected to his referral, but it was too late as the judgment had already beensent to the DPP.
4. STL made a number of complaints about Saunders J’s order, principally, that (i) the issue of forgery was not before the Court andthe finding was not supported by admissible evidence and should never have been made; (ii) the document sent to the DPP containedreferences to and quotations from communications protected by legal professional privilege (“LPP”) which were thus wrongly disclosed to the DPP in breach of the constitutional rights of H and STL; and (iii) the judgment wassent without giving H and STL a chance to be heard, depriving them of any opportunity to object to the referral and to assert theirrights.
5. There is force in these criticisms, but significant measures have already been taken to neutralize the effects of the errors madeby Saunders J.
6. This application was nonetheless pursued with a view to challenging the Court of Appeal’s dismissal of STL’s appeal against SaundersJ’s direction to the Registrar to refer the judgment to the DPP. The Court of Appeal held that the referral was not appealablesince it was no different from a report made by an ordinary citizen and did not involve any attempt to order the DPP to act in anyparticular way. It also held that the practice of referring the papers to the DPP where an arguable case of serious misconduct isdisclosed by the evidence in a civil trial was of long standing and part of the court’s duty to uphold the rule of law.
7. The applicant argued that the Court of Appeal wrongly (i) failed to recognize that such a referral was a judicial act carrying muchgreater weight than an ordinary citizen’s report of a crime and likely to generate publicity unfavourable to STL in circumstanceswhere the Judge’s immunity from suit deprived STL of any potential remedy for malicious prosecution in the event that the criminalcomplaint fails; and (ii) failed to recognize that Saunders J was wrong to regard such a referral as a duty rather than a discretionto be exercised on appropriate grounds.
9. It must not be thought that we accept STL’s criticisms of the Court of Appeal’s decision. In particular, we should not be thoughtto be accepting that a judge who, having duly heard both sides in a civil case, finds that there has possibly been criminal conduct,has to hear further argument before referring the papers to the DPP. But even assuming in the applicant’s favour that the answerto Ms Montgomery’s questions is “Yes, the jurisdiction to review exists” it was impossible to see how that would help him inany practical sense. It would be the court’s fact-specific discretionary decision whether to exercise any such jurisdiction inevery case.
10. It would in any event be an academic discussion in the present case. Referral of the judgment to the DPP is water under the bridge. It cannot be reversed. Orders have been made restricting the DPP’s use of the information, denying him access to the documentsreferred to unless and until it is established that STL is not entitled to the protection of LPP in respect thereof. The fairnessof the position will depend, as it should, on whether the claim to privilege is overridden by the crime and fraud exception.
11. Accordingly, we did not see any justification for the grant of leave. This application involves academic satellite litigation whichshould not be allowed to proceed. The leave application was accordingly dismissed with costs.
Mr Charles Howard, QC, and Ms Lorinda Lau, instructed by Florence Tsang & Co. Solicitors, for the Petitioner
Mr Clare Montgomery, QC, Mr Peter Duncan, SC and Mr Derek C.L. Chan instructed by Stephenson Harwood, for the 2nd Intervener
 Lam VP, Kwan and Barma JJA  1 HKLRD 896.
 HCMC 5/2008 (1 December 2011, re-issued with corrections 6 July 2012), §513-514.
 FACV 5 and FACV 6 of 2014 (6 November 2014).
 At §§ 76-77 and 105.
 At §16.
 Lam VP, Kwan and Barma JJA  1 HKLRD 849 at §§104-109.
 Appearing with Mr Peter Duncan SC and Mr Derek C L Chan for STL.