When what’s yours is not yours

By Jain Brown, Collaborative Practitioner, Partner of CRB

As a Party to your own Hong Kong Family Law proceedings, you should be aware that that the Court has inherent powers to control access to documents in its custody in relation to any Family Law proceedings, unless the matter is open to the public. As a result, you are not able to freely use, copy and/or share any documents filed or lodged with the Court Registry. This is because you are bound by an implied undertaking that you will not do so, and this is further reflected in our legislation under the Matrimonial Causes Rules.

 Rule 121 of the Matrimonial Causes Rules (Cap. 179A) provides that:

 “(1) A party to any matrimonial proceedings or his solicitor or the Secretary for Justice may have a search made for, and may inspect and bespeak a copy of, any document filed or lodged in the registry in those proceedings.

(2) Except as provided by rules 47A(3) and 95(3) and paragraph (1) of this rule, no document filed or lodged in the registry, other than a decree or order made in open court, shall be open to inspection by any person without leave of the court, and no copy of any such document, or of an extract from any such document, shall be taken by, or issued to, any person without such leave.”

 One might think that this Rule is designed solely to ensure that no third party, who is not involved in your Family Law proceedings, can use, copy and/or share any documents filed in your proceedings. This is the essence of protecting confidentiality in Family Law proceedings, so that both Parties are secure in the knowledge that their family matters are not disclosed in public. However, Rule 121 goes further by also requiring the Parties themselves to first seek permission from the Court to use, copy and/or share documents filed in those proceedings with any person not a Party to the proceedings.

 If you are not granted permission by the Court to use, copy and/or share copies of any documents filed in your Family Law proceedings in Hong Kong, and you nonetheless do so, you will be in breach of Rule 121. Pursuant to Practice Direction 15.12, this Rule even applies to the instruction of expert witnesses in that permission should first be sought from the Court before copies of any documents filed with the Court are provided to any expert to be instructed in the proceedings.

 The Court must consider any application under Rule 121 to use, copy and/or share any document on its own facts and conduct a balancing/proportionality exercise when considering whether or not to grant the leave applied for.

 Factors for granting such permission include:

  • Criminal charges have been brought against a Party to the Family Court proceedings and they need to use the documents filed in the Family Court to conduct their defence or the prosecution needs to use such documents in the interests of justice

  • A Party to the Family Court proceedings is involved in other legal proceedings and that Party needs to share the documents from the Family Court proceedings within the other Court proceedings in order to ensure the other Court is fully apprised of relevant matters

Factors against granting such permission include:

  • There is a high risk that confidential information in the Family Court proceedings will be disclosed to the public or other Parties in circumstances in which the information is not a relevant issue

  • Your Family Court proceedings involve a child and/or children and preserving their privacy is of utmost priority to the Court

  • Privilege against self-incrimination – e.g., if documents and/or information revealed in your Family Court proceedings were to be used in other legal proceedings which would make you liable

  • Legal professional privilege – i.e., confidential communications between a lawyer and a client made for the dominant purpose of obtaining or giving legal advice

The permission to share the documents, if granted by the Court, will be very specific, stating what exact documents can be copied and/or shared and with whom. For example, if you are granted permission to use documents filed in your Family Court proceedings in other legal proceedings, you cannot simply use and/or copy the documents in further unspecified legal proceedings, rather a fresh application to the Family Court must be made for permission to use and/or copy the documents specifically for the further set of proceedings. Furthermore, if such permission is obtained from the Court, parts of the permitted document may still be ordered to be redacted to preserve confidentiality, for example, redacting information regarding children.

Consequently, using, copying and/or sharing documents filed in your Hong Kong Family Court proceedings is not permitted without permission of the Court. Whilst there are limited reported cases of Parties breaching Rule 121 and no reported cases in Hong Kong of any sanction being imposed for such a breach (as at the date of the posting of this article), it is entirely possible that such a breach, being contempt of Court, could lead to a fine and/or imprisonment.

An application under Rule 121 must be made in good time. It is advisable to first consult a solicitor before using any documents form your Family Law proceedings and before making the necessary application.

CRB