MR CHU KONG v. SUN MIN AND OTHERS

HCMP 3605/2016

[2026] HKCFI 2087

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 3605 OF 2016

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DECISION

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INTRODUCTION

1.  This is the trial of the contempt proceedings brought against the 1^st to 4^th defendants.  The contempt allegations arise out of (1) three emails used by the 1^st, 3^rd and 4^th defendants in HCA 2562/2014 in support of their ex parte injunction application made in December 2014, the contents of which were admittedly altered by the 2^nd defendant, and (2) an invoice produced in discovery in the same action by the 3^rd defendant, the contents of which were allegedly altered by him.

2.  The allegations being use of fabricated evidence in litigation, this is therefore a case of criminal contempt.

3.  At the close of the plaintiff’s case on the second day of the trial, the defendants indicated that they would make a submission of no case to answer.[1] 

4.  On the third day, after some discussion, it was agreed that before hearing the no case submission, the court should resolve the following issue first:

Are the defendants required to make an election whether to call evidence at the same time when they make their submission of no case to answer?

5.  The defendants’ answer is “No”.  Mr Benjamin Yu, SC, leading Ms Bonnie Cheng and Mr Keith Chan, submits that as liability for contempt carries penal consequence, the criminal procedure should apply, which means that a defendant in contempt proceedings has an absolute right not to be put to his election whether to call evidence before the court gives a ruling on a no case submission.  On this issue, Articles 10 and 11 of the Hong Kong Bill of Rights (as set out in section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383) are directly applicable.  Further, Order 52, rule 6(4) of the Rules of the High Court, Cap 4A, supports the defendants’ answer.  In addition, Mr Yu relies on a long line of English authorities which is in line with the defendants’ answer.

6.  On the other hand, the plaintiff’s answer is “Yes, subject to the court’s discretion”.  Mr Jenkin Suen, SC, leading Mr Michael Lok and Ms Tinny Chan, submits that the civil procedure should apply, namely that a defendant should be put to his election before the court rules on a no case submission.  But Mr Suen adds that the court retains a residual discretion not to require the defendant to do so if he is able to put forward some special circumstances.  The main authorities relied on by the plaintiff are the English decision of Barclays de Zoete Wedd Securities Ltd v Nadir [1992] Lexis Citation 3179, 27 February 1992, and the Hong Kong case of Re Kennedy (No 1) [2004] 3 HKC 404, a decision of Kwan J (as she then was).

7.  This is my decision on the issue, which I shall call “the election issue”. 

8.  Before proceeding further, I should say a few words about terminology.

9.  In a criminal trial, at the stage when the defendant makes a submission of no case to answer, he is not required to elect whether he will call evidence if the court rules that there is a case to answer.  If the court does make that ruling, he will then make the election. That is a choice between “call evidence” and “not call evidence”. 

10.  In a civil trial, when the authorities refer to the defendant being put to election when he makes a no case submission, it is not an election in the sense that the defendant may elect to call or not call evidence at that stage.  What he has to do is to forgo his right to call evidence upon an unfavourable no case ruling, and confirm definitively to the court that he will not call evidence in that event.  The term “election” in this context is therefore not a choice between two options as in the criminal context. 

THE QUESTIONS

11.  I shall approach the election issue by addressing the following questions.

12.  First, what is the proper approach for deciding whether the civil rules, procedure or practice or the criminal ones should apply to a particular aspect of contempt proceedings?

13.  Second, what is the rationale for the civil procedure requiring that a defendant be put to election before the court delivers the no case ruling?

14.  Third, what is the rationale for the criminal procedure not requiring that?

15.  Fourth, applying the proper approach, as regards the election issue, should the civil procedure or the criminal procedure be adopted in contempt proceedings?

16.  Fifth, if the civil procedure should apply, what is the scope of the residual discretion contended for by the plaintiff, and how should that be exercised?

17.  I should say at the outset that senior counsel for both sides confirmed at the hearing that the distinction between civil contempt and criminal contempt is not relevant for resolving the election issue.  What marks out contempt proceedings from other types of civil proceedings is that penal consequence may be visited upon the defendant if convicted of contempt.  That applies whether it is a civil contempt or a criminal contempt.

THE PROPER APPROACH

18.  In criminal proceedings, safeguards are in place for the protection of a person accused of a criminal charge.  It is uncontroversial that some of these safeguards apply to contempt proceedings. The most well-known one is the standard of proof – a plaintiff has the burden to prove the contempt beyond reasonable doubt, as opposed to on the balance of probabilities.  Another example is that a defendant who is sought to be committed cannot be compelled to testify: Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67, at 74B.

19.  Sometimes, in contempt cases, a question arises as to whether a particular aspect of the proceeding should attract the civil or the criminal treatment.  In fact, in the present proceedings, there was a dispute as to whether, this being a criminal contempt case, the plaintiff ought to have obtained the consent of the Secretary for Justice or otherwise involved him before commencing the case.  This question was ultimately answered in the negative by the Court of Final Appeal in the decision reported at (2022) 25 HKCFAR 318, [2022] HKCFA 24.  Where I refer to “Chu Kong” below, it is a reference to this decision.

20.  What then is the proper approach for deciding whether the civil rules, procedure or practice or the criminal ones should apply to a particular aspect of contempt proceedings?  The answer is to be found in (1) Chu Kong, (2) the Court of Appeal decision in Secretary for Justice v Cheung Kai Yin [2016] 4 HKLRD 367, (3) the English decision in Re B (A Minor) (Contempt of Court: Affidavit Evidence) [1996] 1 WLR 627, and (4) the remark of Scott J in Bhimji v Chatwani.  (The last case was reported in [1991] 1 WLR 989, but the remark was not included in the report.  It was however quoted in Barclays).

The procedural nature of contempt proceedings

21.  It has been confirmed time and again that the jurisdiction to commit a person for contempt is sui generis.  While a conviction attracts penal sanction, contempt proceedings are not criminal proceedings: Chu Kong at paras 31 to 35; Cheung Kai Yin at paras 7 and 35. 

22.  A criminal contempt involves a serious interference with the administration of justice.  Before a person can be liable for criminal contempt, it must be established that he intended to interfere with or impede the due administration of justice: Chu Kong at para 26. Notwithstanding the apparently “criminal” nature of criminal contempt, it does not fall within the scope of the ordinary criminal law: Chu Kong at para 30.  But it has been said that criminal contempt has a dual character:

“Although the substantive character of criminal contempt proceedings is essentially criminal, the procedural character of the proceedings is civil rather than criminal.” (original emphasis)

23.  The above is a quote from the Australian case of Allbeury v Corruption and Crime Commission (2012) 42 WAR 425 at para 182, which was cited in Cheung Kai Yin at para 16.

24.  In Hong Kong, the procedural character of committal proceedings has now been definitively confirmed to be civil in nature by the Court of Appeal in Cheung Kai Yin at para 34, which was confirmed by the Court of Final Appeal in Chu Kong at paras 31 to 35.

25.  One critical difference between contempt proceedings and ordinary civil proceedings is that the former carries potential penal sanctions whereas the latter does not.  Because of that, and notwithstanding that a charge of contempt is not a criminal charge as a matter of common law, it is now firmly established that contempt proceedings fall within the scope of Articles 10 and 11 of the Hong Kong Bill of Rights and a defendant in a contempt case enjoys the rights and safeguards afforded to a defendant in criminal proceedings under those Articles: Cheung Kai Yin at paras 34 to 37.

26.  Articles 11(1) and 11(2)(g) are presently most relevant:

“(1) Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

(2) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality –

…

(g) not to be compelled to testify against himself or to confess guilt.”

27.  In Cheung Kai Yin, Lam VP (as his Lordship then was) concluded, at para 34:

“the committal proceedings should be regarded as civil in terms of its procedural character for the reasons explained in the Australian authorities cited above. For the purposes of s.13 of the High Court Ordinance and the Rules of the High Court, committal proceedings should be governed by rules applicable to civil appeals though all the protections under arts.10 and 11 of the HKBoR are applicable given the potential penal consequences.”

28.  The above was said in the context of an appeal. However, the principle is clearly of general application and applies to a contempt trial.  That would be the guiding principle which I shall follow in this case. 

The approach in practice

29.  Where a suggestion is made that a particular criminal procedure is to be adopted in a contempt trial, the starting point is of course to look at Order 52.  If it is expressly or specifically provided for or dealt with in the Order, no issue arises, and the rules should be followed. However, where that is not the case, in my view, the question to ask is this – is it proper or necessary to import the criminal procedure in question into a contempt trial in order to ensure that the protection given to a contempt defendant under Articles 10 and 11 of the Bill of Rights are given full and proper effect?

30.  This is the approach taken in Re B:

“I respectively agree with Mr. Critchley’s submission that the analogy with criminal proceedings can be taken too far and that in civil proceedings for contempt the court will introduce those safeguards which are necessary for the protection of alleged contemnors but will not import criminal procedure wholesale or indiscriminately.” (639A)

31.  I also draw support from Scott J’s remark in Bhimji:

“Some of the rules that apply to criminal trials, designed for the protection of defendants and to ensure that the innocent are not convicted, have been imported into proceedings for contempt. For example, the criminal standard of proof, beyond all reasonable doubt, is required to establish contempt. The right of a respondent to a committal application to submit no case to answer without being put to his election as to whether he will or will not call evidence applies too, but there is no need in my opinion to commit for civil contempt rigorously to follow as if by rote every single rule of procedure and practice applicable to criminal trials.”

32.  Before leaving this section, I wish to make two observations.

33.  First, it is clear from the above extracts that the question of whether a particular criminal procedure is to be imported is to be decided on an individual basis with reference to the protection of a contempt defendant from a human rights perspective.  There is no general view favouring importation of criminal procedures into contempt trials.  In fact, in Chu Kong, an argument was made that if a private party was able to bring proceedings to commit a person for criminal contempt with leave of the court but without the involvement of the Secretary for Justice, that would be a weaker protection than what would be accorded to an accused in a criminal court.  To that argument, the Court of Final Appeal expressly acknowledged that it is well established that many of the protections accorded in criminal cases are not available in contempt proceedings: see para 50.

34.  Second, while the starting point is that the civil rules apply, I would say that it is only a general starting point. Ultimately, the question posed in para 29 above is to be answered as a matter of principle and by reference to decided authorities.

THE CIVIL PROCEDURE

35.  It has long been established that in a civil trial, if a defendant wishes to make a submission of no case to answer at the close of the plaintiff’s case, the defendant is generally required to elect to call no evidence.  If he does so, that is the end of the matter as regards evidence.  The court will decide the case on the basis of the plaintiff’s evidence alone.  This practice is based on case management considerations.  In gist, it is to avoid disruption to a trial.

36.  The rationale is twofold.

37.  First, if the defendant is not put to election and is allowed to reserve his right to call evidence in the event that the court rules that there is a case to answer, the consequence is that in that event, the judge is required to assess the case in two stages on two different bodies of evidence applying two different threshold tests.  This procedure has been criticised as “highly inconvenient” and “not a very satisfactory procedure”.

38.  In Alexander v Rayson [1936] 1 KB 169, the Court of Appeal said, at 178 to 179:

“We think, however, that this is a highly inconvenient. For the judge in such cases is also the judge of fact, and we cannot think it right that the judge of fact should be asked to express any opinion upon the evidence until the evidence is completed. …

… What he did ask the learned judge to rule was that, accepting the evidence given on the defendant’s behalf [2] , there was no case to answer in law. We cannot help regarding this as not only an irregular but a most inconvenient procedure.  The witnesses of the plaintiff were presumably in Court and the expense of their attendance had already been incurred. …”

39.  In Benham Ltd v Kythira Investments Ltd [2003] EWCA Civ 1794, the Court of Appeal described the two-stage process as a disadvantage as it would interrupt the trial process, at para 31:

“the submission [of no case to answer without election] interrupts the trial process and requires the judge to make up his mind as to the facts on the basis of one side’s evidence only and applying the lower test of a prima facie case with the result that, if he rejects the submission, he must then make up his mind afresh in the light of whatever further evidence has been called and on the application of a different test. This, to say the least, is not a very satisfactory procedure.”

40.  Second, if the court accepts the no case submission, in the event of a successful appeal from that ruling, the trial will need to resume or there will need to be a fresh trial, thus resulting in additional expense and inconvenience: see Alexander v Rayson at 179; Benham at para 31.  This was in fact the outcome in Alexander as the appeal against the no case ruling was allowed (in part): see 191.

41.  The view taken by the civil courts is that the dangers and disadvantages as identified above will almost invariably outweigh any supposed advantages of allowing the defendant to proceed with a no case submission without being put to election. 

42.  This point has been firmly made in the English cases.

43.  In Benham, Simon Brown LJ said, at para 32:

“Let me state my central conclusion as emphatically as I can. Rarely, if ever, should a judge trying a civil action without a jury entertain a submission of no case to answer. That clearly was this court’s conclusion in Alexander v Rayson and I see no reason to take a different view today, the CPR notwithstanding.”

44.  I wish to make one observation here.  It is clear from the authorities that the practice of the civil courts has been developed based purely on case management consideration and (at the risk of stating the obvious) there is no human rights dimension here.  Plainly, this would be relevant when one considers whether the civil practice should apply in the context of the election issue.

THE CRIMINAL PROCEDURE

45.  The practice governing a submission of no case to answer in a criminal trial is well established.

The practice

46.  After the close of the prosecution case (which is often referred to as “the half-time”), a defendant is entitled to submit that there is no case to answer.  If the court accepts the submission, then that is the end of the trial.  If the court rejects the submission, the trial continues.  At this stage, the defendant decides whether to call evidence or not.

47.  In contrast with the civil practice, a criminal defendant is not required to make the election at the time when he makes his no case submission.  He can wait until after the ruling before he elects.

48.  The question to be answered by the judge at the no case stage is a question of law.  In Hong Kong, the test is that stated in R v Galbraith [1981] 1 WLR 1039, as applied in Attorney-General v Li Fook Shiu Ronald [1990] 1 HKC 1, which was recently re-affirmed by the Court of Appeal in Re Secretary for Justice’s Reference (Nos 1-3/2021) [2022] 5 HKLRD 886, [2022] HKCA 1635, at para 109.  The judge should ask the following questions:

(1)     is there some evidence that the crime has been committed?  If not, the judge will rule no case or discharge the count in question.  If there is;

(2)     is the evidence of primary facts of a quality permitting a jury to accept it?  If not, the judge will stop the case or discharge the count.  But, if such evidence is of appropriate quality;

(3)     could, may or might a jury properly directed be satisfied beyond reasonable doubt of such inferences as have to be drawn if all the elements of the prosecution case are to be established?  If he concludes that a jury could, may or might so be satisfied, he will rule against the submission.

The rationale

49.  As accepted by the Court of Appeal in Re SJ Reference, at para 93, the rationale for the no case submission procedure in a criminal trial is based on the desirability of removing the need for the defence to present their case where the prosecution appears doomed to failure. This spares the defendant the stress of testing and the risk of incriminating himself during the course of the defence case, and reduces the time spent on the case and therefore the cost.

50.  Plainly, the design of the no case procedure gives substance to, and is a reflection of, the fundamental principle at common law and under Article 11(1) of the Bill of Rights that everyone charged with a criminal offence is presumed innocent until proved guilty according to law.  A criminal defendant has a right to require the prosecution to prove his guilt. It is not for him to prove his innocence.  In the trial, he is entitled to sit back, say nothing and wait to see if the prosecution has discharged its burden.

51.  It is worth quoting the standard direction of the Judicial Studies Board, cited by Bokhary PJ in Li Defan v HKSAR (2002) 5 HKCFAR 320 at para 3:[3] 

“The defendant does not have to give evidence. He is entitled to sit in the dock and require the prosecution to prove its case. You must not assume that he is guilty because he has not given evidence. The fact that he has not given evidence proves nothing, one way or the other. It does nothing to establish his guilt. On the other hand, it means that there is no evidence from the defendant to undermine, contradict or explain the evidence put before you by the prosecution.”

52.  This is generally referred to as the right of silence.  This right applies throughout the course of the criminal trial.  It of course also applies at the no case submission stage. 

53.  As pointed out above, the purpose of the no case procedure is that at half time, in a situation where the prosecution case appears to the defendant to be doomed to fail, he can make use of this mechanism and seek a ruling of no case to answer and, if successful, stop the trial there and then and save himself from having to present his case.  Under the mechanism, the defendant is entitled to wait for the ruling and see whether the prosecution is in fact doomed before he decides whether to exercise his right of silence. 

54.  Equally importantly, the design of the no case procedure plainly also gives substance to, and is a reflection of, the fundamental principle at common law and under Article 11(2)(g) of the Bill of Rights that a defendant in a criminal trial is not a compellable witness.  His failure to give evidence is not regarded as an admission of guilt for if it is otherwise, he is effectively under compulsion to testify to prove his innocence.  In other words, he has a right to choose whether to remain silent or to call evidence.

55.  Under the no case mechanism, as a matter of timing, he does not have to exercise that right until after the judge gives the ruling.  In a case in which the judge rejects the submission, this is the time when the defendant has heard the prosecution case and takes the view that it appears to be doomed, and when he finds out that the judge does not agree with him and confirms that the prosecution evidence is sufficient to proceed.  At this juncture, he knows for sure that there is a case for him to meet.  From this time onwards, whilst remaining non-compellable, the defendant will have to make up his mind as to whether he will remain silent or will call evidence.

56.  This means that the defendant effectively has two attempts to try to secure his acquittal – at half time and at full time.

57.  To conclude, in contrast with the civil practice, a defendant in a criminal trial is entitled to make a no case submission without being put to his election as to whether he will call evidence.  This is described by Mr Yu as an “absolute” or “unqualified” right.

58.  In para 15 above, I have asked this question – what is the rationale for not requiring a criminal defendant to be put to election, like what is done under the civil practice?  I would suggest the answer to that is that the civil practice is driven entirely by case management directions whereas the criminal practice is designed in recognition of the fundamental human rights of a defendant facing a criminal charge, whose personal liberty is at stake.

CIVIL OR CRIMINAL?

59.  I shall now address the election issue by applying the approach set out in para 29 above.

Order 52, rule 6(4)

60.  The starting point is to look at Order 52.  Rule 6(4) is presently relevant.  It reads:

“If on the hearing of the application the person sought to be committed expresses a wish to give oral evidence on his own behalf, he shall be entitled to do so.”

61.  In Re B, the court took the view that a defendant in a committal trial should not be put to election upon making a no case submission, this conclusion following “logically both from Comet Products U.K. Ltd v. Hawkex Plastics Ltd. [1971] 2 Q.B. 67 and from the unqualified terms of R.S.C., Ord. 52, r. 6(4)” (at 638G-H).

62.  The view was obiter as the election issue did not arise in that case, and that was why the view was expressed without any elaborate reasoning other than what is quoted above.

63.  Placing reliance on what was said in Re B, Mr Yu submits that the wording of Order 52, rule 6(4), which is in unqualified terms, does not require the defendant to elect at the no case stage.  He argues that it does not say anything to the effect that a defendant’s entitlement to give evidence is curtailed in that he must be put to election as to whether he will call evidence.

64.  In my view, it depends on whether the rule is to be given a literal meaning or a purposive one. 

65.  The essence of Mr Yu’s submission is that since nothing is said about timing, and therefore the defendant is entitled to testify at any time.  That would be a literal interpretation. 

66.  On the other hand, the court generally has power to regulate its own procedure, and that includes regulating the manner in which evidence is to be adduced.  That applies to contempt proceedings.  And that was precisely the basis for the ruling in Re B that the court may direct a contempt defendant to file and serve affidavit in advance of the trial but the plaintiff cannot make use of it until the defendant deploys the evidence in support of his own case: 638E-F.  Hence, it can be argued that Order 52, rule 6(4) is to be interpreted against the context of the existence of the court’s power to regulate its own procedure.  When viewed this way, the rule should not be construed to mean that the defendant has absolute freedom to choose to testify at any time.

67.  I am inclined to adopt the purposive approach, as the court’s power to regulate its own proceedings in contempt proceedings is plainly a relevant context.

68.  This is therefore a situation where the statutory rules do not expressly or specifically make provision for the election issue. I should therefore address the question which is posed in para 29 above.  I shall first do so as a matter of principle and then consider the authorities.

As a matter of principle

69.  Having examined the rationale underlying both the civil procedure and the criminal procedure, I am of the view that, as a matter of principle, the latter should apply to the election issue.

70.  Articles 10 and 11 are fundamental human rights afforded to any person facing a contempt charge.  The no case procedure is an important mechanism which gives recognition and substance to those rights.  For these reasons, a defendant who is sought to be committed warrants the same treatment as an accused in a criminal case. 

71.  The civil practice has been devised without the court having to pay any regard to the human rights dimension, as the defendant in a civil case does not face any potential penal sanction.  Hence, on a conceptual level, the civil practice is prima facie not suitable for contempt proceedings.  On a practical level, by not following the civil practice, it should not be taken that case management considerations are unimportant or they are irrelevant. They are of course important and relevant.  In contempt cases, as in all other cases, the court should apply procedures which promote efficiency and avoid disruption. 

72.  However, when it comes to the protection of the fundamental rights of a contempt defendant, the case management considerations should, in my view, give way.

73.  I have arrived at the above conclusion by taking into account the argument made by Mr Suen.  The crux of his argument is this. To adopt the civil practice (subject to the court’s discretion) does not amount to any abrogation of a defendant’s rights under the Bill of Rights.  The court’s power to put him to election does not engage, or does not make inroads into, those rights.  This is because being put to election does not amount to compelling him to testify as he remains at full liberty to elect whether to call evidence or not.  Being put to election precisely means that there is no compulsion.  As there is no compulsion, there is no reason why the court should not at least have power, subject to discretion, to put the defendant to election.  There is no proper basis to say that the defendant has an absolute right not to be put to election.

74.  The critical difference between the civil practice and the criminal one is, as I see it, timing.  In essence, Mr Suen is saying that the defendant is free to elect and he is simply required to do so earlier, ie before the court delivers its no case ruling.

75.  I was initially attracted to the suggestion that the defendant’s rights would not be affected by having to elect before the ruling, as it seemed to me that if he were to be put to election at the juncture after the close of the prosecution case and before the delivery of the court’s ruling, he would already have all the information he needed in order to make a decision on whether to call evidence or not (ie the evidence adduced by the plaintiff).  The only thing he would not know yet would be the court’s ruling.  But, then, in a criminal trial, the ruling would be either a “Yes” or a “No”, as the court should not elaborate on the ruling unless some guidance was required for further conduct of the trial: HKSAR v Egan (2010) 13 HKCFAR 314, para 295; HKSAR v Wong Sui Ching (2012) 15 HKCFAR 199, para 93.  Hence, it could be argued that his ability to make the decision to call evidence or not would be the same, whether before or after the court’s ruling.

76.  On further reflection, however, I do not think that that is an important factor in the present analysis.  Mr Yu said in his oral submissions that the defendant is entitled to a ruling.  I think it is correct for Mr Yu to use the word “entitled”.  The defendant is presumed to be innocent of contempt until proven otherwise.  He is entitled to require the plaintiff to prove his case.  If he takes the view that the plaintiff has not produced sufficient evidence to prove contempt and his case is doomed, the defendant is entitled to invoke the no case mechanism to bring the trial to an early close.  In that situation, I agree that he is entitled to know whether the plaintiff’s case is in fact doomed before he makes up his mind as to what next step to take in the trial.

77.  If it is otherwise, a defendant, who is of the view that the plaintiff’s case is not sufficient to proceed, is effectively forced to do either of the following two things.  First, if he chooses to make a no case submission, he is forced to confirm that he will not call evidence in the event that there is a case to answer, without knowing whether the court agrees with him on the insufficiency of the plaintiff’s case.  Second, if he forgoes the right to make the no case submission as he wishes to call evidence, he is forced to give evidence notwithstanding that the plaintiff’s evidence may in fact not disclose a sufficient case.  Mr Yu submits that this would be an abrogation of the defendant’s right of silence and his privilege against self-incrimination. I agree with the contention save that I would prefer to say that the defendant’s rights are weakened, rather than abrogated.

78.  In short, I accept that a contempt defendant has an unqualified right to make a no case submission without having to confirm at the same time that he will not call evidence.  As in criminal trials, he is entitled to have two goes at securing an acquittal – once at half time and once at full time.  For this reason also, I consider that the civil procedure is not suitable as its whole point is to compress what should be two stages into one, out of case management considerations.

79.  Another strand of Mr Suen’s argument is that there is no reason why the court should not at least have the power to require an election as it still retains a discretion to direct otherwise.  I think the answer to that is a simple one.  Once the conclusion is reached that the criminal procedure is there to safeguard the fundamental rights of the defendant, to subject those rights to the discretion of the court would weaken or undermine those rights, which is unwarranted. 

80.  By way of footnote, I should add that the plaintiff has not really presented a coherent case on how the discretion works.  If the civil procedure is to apply, the authorities are very clear that to allow the defendant not to elect should rarely be allowed, if ever. However, Mr Suen’s position, as confirmed in his oral submissions, is that the court may exercise that discretion if the defendant can show special circumstances.  That is, I would say, a deviation from the civil practice, and Mr Suen has not explained why or what those special circumstances may be.  Furthermore, as we shall see later, Re Kennedy (No 1), a case on which Mr Suen relies, suggests that the discretion would be quite readily exercised by the court.

81.  I therefore conclude that, as a matter of principle, it is proper and necessary to import the criminal procedure applicable to the election issue into a contempt trial in order to ensure that the protection given to a contempt defendant under Articles 10 and 11 of the Hong Kong Bill of Rights are given full and proper effect.

82.  I shall now deal with the authorities.  The majority of them are in support of adopting the criminal procedure.

On the authorities

83.  There is a long line of English cases in support of applying the criminal procedure.

(1)     In Savings & Investment Bank Ltd v Gasco Investments (Netherlands) BV (1986) 136 NLJ 657, Scott J (as his Lordship then was) held, at 658, that a respondent to a committal application for contempt is entitled to “wait and see” what weight the evidence of the plaintiff has before he decides whether or not to put before the court his own affidavit, and he is entitled, without being put to his election, to make a no case submission at the end of the plaintiff’s evidence.

(2)     In Re W (Wards)(Publication of Information) [1989] 1 FLR 246, it was recorded at 260 that the defendants were not put to election before making the no case submission.

(3)     In Bhimji, Scott J repeated the view he expressed in Savings & Investment Bank.

(4)     In Re B, the court took the obiter view that no election was required.  See para 61 above.

(5)     In Attorney General for Tuvalu v Philatelic Distribution Corp [1990] BCLC 245, Woolf LJ, delivering the judgment to which all members of the court (including, apart from his Lordship, Bingham LJ and Sir Cumming-Bruce) had contributed, said, at 253g-h:

“Without first requiring the appellant to elect not to call evidence the judge permitted counsel for the appellant to make a submission of no case to answer. Although the contempt alleged was a civil contempt the committal proceedings were quasi-criminal proceedings which required the alleged contempt to be proved beyond reasonable doubt. The judge followed the practice in criminal proceedings and we consider he was right to do so.”

(6)     In Templeton Insurance Ltd v Motorcare Warranties Ltd [2012] EWHC 795 (Comm), the court recorded its ruling at para 24 that the defendant was under no obligation to elect when making the no case submission.

(7)     Lastly, in Robinson v Murphy [2024] EWHC 798 (KB), it was recorded at para 9 that the judge had not required the defendant to make the election. 

84.  Mr Yu also places reliance on BT v CBY (Committal for Contempt) [2020] 3 HKLRD 287, [2020] HKCA 426.  He submits that Cheung JA, with whom Kwan VP and Yuen JA agreed, cited with approval the obiter view expressed in Re B that no election is required for a contempt defendant to make a no case submission: see para 7.1(3) and that is authority binding on me and should be followed.

85.  On these authorities, Mr Suen makes the observation that in none of these authorities did the court offer any detailed reasoning in support of not requiring an election.  I think that is a fair observation.  The approach was simply stated, endorsed or applied as a proposition without any reasoned justification. 

86.  I also agree with Mr Suen that BT cannot be taken as an authority in support of the criminal procedure.  That is a decision of the Hong Kong Court of Appeal applying the ratio in Re B regarding the use of a defendant’s affidavit in committal proceedings in a family case. The election issue did not arise there.  Cheung JA was reciting the relevant paragraph in Re B at 629D-E in the course of discussing and following that ratio.  In fact, the paragraph cited only contained the propositions made by the counsel in Re B in his skeleton argument.  In Re B, on the affidavit point, the judge made his ruling at 638E-F, which was cited by Cheung JA in para 7.2.  On the election point, the judge expressed his obiter view at 638G-H, which was not cited by Cheung JA. Therefore, on a proper reading of the decision, BT cannot be taken as an authority on the election issue, even by way of obiter.

87.  Mr Suen’s further argument is that the court should apply a principled approach in resolving the election issue.  It is not the quantity of authorities that count.  It is the principle that matters.

88.  I suppose it is a handy submission to make when one finds that the authorities are overwhelmingly against him.  And it must be right to say that an issue should be resolved on principles. 

89.  On the quantity point, Mr Yu observes that a lot of the English cases cited by him were presided over by eminent and well-known judges and their endorsement of the criminal approach should be taken heed of, notwithstanding the absence of any detailed reasoning.  For my part, the significance of the line of English authorities is that they plainly show a general trend of the court readily accepting the criminal approach, and that is something that I should pay attention to.  In any event, Mr Suen says that I should decide the issue as a matter of principle.  I have attempted to do that at some length in the last sub-section, and have reached a conclusion against him. 

90.  I now turn to the two authorities which are in support of Mr Suen’s argument.  The slight irony here is that, unlike the authorities which are not in his favour, these two authorities do contain substantive reasoning.[4] 

91.  In Barclays, Knox J held as follows:

“The risk of causing an injustice by requiring a defendant either to take a preliminary point by way of striking out or preliminary issue, or to have all the evidence on both sides heard at once if he wishes to give evidence, if one takes into account the residual judicial discretion is in my view very slight indeed. Effectively, what a respondent is being asked to do is to challenge the validity of factual evidence against him if there is to be such a challenge in one stage and not in two. The disadvantages of the two stage process discerned in Alexander v Rayson do apply to contempt proceedings and are not, in my judgment, outweighed by such risk as there is involved in putting a respondent to his election.

…  The existence of such an absolute right to withhold evidence as is contended for on behalf of Mr Nadir would undoubtedly tend to prolong these hearings, and although justice to a respondent is of first and overriding priority, delay and thereby expense is not in my judgment an irrelevance.”

92.  I would respectfully decline to follow this ruling, for the reasons which I have given above for why the criminal procedure should apply.  While Knox J discussed the issue in terms of whether injustice would be caused, the ruling appeared to favour case management considerations more than human rights ones.

93.  In Re Kennedy (No 1), the election issue arose for decision.  In the end, however, Kwan J did not decide the issue.  She held that the defendant in that case was not required to elect.  This was because either he had an absolute right to withhold evidence or if the matter was within the court’s discretion, the court would still have exercised it in his favour: paras 21 and 22.

94.  However, her Ladyship went on to express her view against an absolute right.  She drew a distinction between a submission that (1) accepting the plaintiff’s case at face value, no case has been established to satisfy the elements of the contempt charge in law (“Type 1”), and (2) the evidence led by the plaintiff is so unsatisfactory or unreliable that the court should find that the burden of proof has not been discharged (“Type 2”).  Her Ladyship said that she was more inclined to agree with the reasoning in Barclays (para 20).  Re Kennedy itself was a Type 1 case.  In a Type 2 case, she favoured the one-stage approach.  At para 23, she said:

“I think there is a lot to be said of the undesirability of asking the court to express an interim view on the quality of the evidence where a submission of no case is made on the basis that the evidence adduced by the applicant is unsatisfactory or unreliable. If that is the basis for submission of no case, the assessment of the quality of the evidence should be done in a one-stage process instead of in two stages. That may be a reason for the exercise of the court’s discretion to require a respondent to make an election whether to give evidence. Here, that is not the basis for Mr Yu’s submission of no case. So much of the objection that may be taken if the respondent is not required to make an election is not present.”

95.  Mr Yu urges the court not to follow the obiter view.  It is a highly tentative view, as her Ladyship herself remarked that she would have liked more time to reflect on the point, which she did not find to be any easy one (para 21).  Also, the decision predated Cheung Kai Yin which made clear the applicability of Articles 10 and 11 of the Bill of Rights to committal proceedings. 

96.  I agree with both points.  The objective fact is that her Ladyship did not try to analyse the matter from a human rights perspective, but came to her tentative view primarily based on case management considerations.  I would also note that the discretion which she had in mind seems very different in scope from the one contended for by Mr Suen.

97.  I would therefore respectfully decline to follow the obiter view expressed in Re Kennedy (No 1).

Summary

98.  Therefore, both as a matter of principle and on authorities, the election issue should be resolved by adopting the criminal procedure.

THE DISCRETION

99.  The questions concerning the discretion does not arise in light of my conclusion.

CONCLUSION

100.  In conclusion, I hold that the defendants are not required to make an election not to call evidence at the same time when they make their submission of no case to answer.

101.  At the hearing, I indicated that I would give seven days to the defendants to confirm whether they would proceed with the no case submission.  According to my ruling, no election is required from them at this stage.  Hence, we should proceed with the no case submission on the reserved date of 30 April 2026. 

102.  For that, I make these directions:

(1)     The defendants do lodge and serve their written submissions by 10 am on 23 April 2026.

(2)     The plaintiff do lodge and serve their written submissions by 10 am on 27 April 2026.

(3)     The trial do resume on 30 April 2026 at 10 am for hearing the defendants’ submission of no case to answer.

(4)     If any party wishes to vary the above directions, they should consult with the other side and the parties should jointly write to the court by 10 am on 16 April 2026.

103.  On costs, these are my thoughts.  On the one hand, one may say that costs should follow the event and since the plaintiff has lost the argument, he should pay costs.  On the other hand, the election issue has long been an unsettled issue, particularly in Hong Kong.  There are legitimate arguments and counter-arguments, which have been properly raised and thoroughly explored not only by the winning party (the defendants) but also by the losing side (the plaintiff).  I am inclined therefore to treat the costs of the election issue as part of the costs of the overall contempt proceedings.  

104.  Accordingly, I make an order nisi that the costs arising from the arguments on the election issue, including the hearings on 5 and 8 December 2025, be in the cause of these proceedings, with a certificate for three counsel.