Privacy Within A Relationship And In Family Proceedings

Loretta Ho examines the Court's view on the use of confidential documents and information obtained by 'self-help' means.

During a relationship, it is common for couples to allow each other to access their confidential documents and information. With modern day technology, these documents are readily accessible if they are stored in the virtual "cloud" storage. The documents are essentially "one click away" from their electronic devices. It also follows that it is easy for a party to access the other party's communications with third parties, including their legal advisers.

Regrettably with relationship breakdown often comes a complete breakdown in trust. This leads parties being tempted to gather private and confidential documents belonging to the other party, with the view that the information they have obtained by 'self-help' means might advance their own case.

It is therefore important for parties to family proceedings to understand the Court's view on how confidential documents and information are treated.

Fundamental rights of privacy

A person has a fundamental right of privacy as follows:

Article 30 of the Basic Law - Hong Kong residents have the freedom and privacy of communication protected by the law. Article 14 of the Hong Kong Bill of Rights - No person shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence. A person is entitled to legal professional privilege and litigation privilege for communications with his/her legal advisers. Imerman v Tcheguiz

Traditionally the Courts would allow information and documents, whosoever obtained, to be admitted in evidence. The landmark UK decision Imerman v Tcheguiz [2010] 2 FLR 814 drew a line in the sand in respect of how the Courts intended to treat the evidence that a party to proceedings had obtained by self-help.

In Imerman, the Wife's brother, who shared an office and computer system with the Husband, downloaded a substantial quantity of documents from the Husband's office computer and passed them to the Wife. The Wife later used these documents in the divorce proceedings against the Husband.

The Court of Appeal held the following:

A person enjoys legal protection of their confidential and private information and documents. It is a breach of confidence for a person to examine, to make / retain / supply copies of a document with confidential contents without proper authority. The person who established a right of confidence in the...