RE MAHESH J ROY

CACV 226/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 226 OF 2015

(ON APPEAL FROM LBTC NO 2189 of 2015)

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REASONS FOR JUDGMENT
AND DECISION ON COSTS

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Hon Lam VP (giving the Reasons for Judgment and Decision on Costs of the Court):

1.  A presiding officer in the Labour Tribunal has the power under Section 42 of the Labour Tribunal Ordinance Cap 25 [“LTO”] to summarily punish a person who in a hearing before the tribunal (a) uses a threatening or insulting expression to or concerning or in the presence of the presiding officer; or (b) behaves in an insulting manner or wilfully interrupts the proceedings.

2.  Subject to limitations set out in the statute, this statutory power is equivalent to the summary power of a court to punish contempt in the face of the court.  The power is a draconian one but, as with other courts of record[1], it is imperative that the Tribunal must have such a power in order to protect the integrity of proceedings in court and to ensure orderly conduct in the proceedings.  As Mr McCoy SC (appearing together with Mr S Marwah for the appellant in this appeal) fairly accepted, the existence of such a power is a necessary incidence of the authority of the court.  The power, as counsel observed in the course of proceedings, is not for the benefit of the judicial officer.  Instead it is a power which emanates from the public interest in the maintenance of the dignity and solemnity of court proceedings which is essential for the rule of law.

3.  At the same time, it is a power to be exercised cautiously.  In Balogh v St Albans Crown Court [1975] 1 QB 73, Stephenson LJ had this to say regarding the summary power under the common law:

“ The power of a superior court to commit … a contemnor to prison without charge or trial is very ancient, very necessary, but very unusual, if not indeed unique. It is as old as the courts themselves and it is necessary for the performance of their function of administering justice, whether they exercise criminal or civil jurisdiction. (p.88A)

The power … is both salutary and dangerous: salutary because it gives those who administer justice the protection necessary to secure justice for the public, dangerous because it deprives a citizen of the protection of the safeguards considered generally necessary to secure justice for him. …it is a power to be used reluctantly but fearlessly when, and only when, it is necessary to prevent justice being obstructed or undermined … (p.91A to B)”

Facts and background

4.  This appeal is about the exercise of such a summary power under Section 42.  The appellant was summarily punished by a presiding officer in the course of proceedings in the Labour Tribunal.  The presiding officer found him guilty of insulting behaviour and disturbing proceedings in front of her.  Having afforded him opportunities to arrange legal representation, and having adjourned the matter and later heard from counsel on his behalf, the presiding officer imposed a fine of $5,000.

5.  The appellant appealed and legal aid was granted to him.  As mentioned, he was represented by Mr McCoy SC and Mr Marwah before us.  As explained in the earlier judgment of this Court in this appeal, the Secretary for Justice was joined as intervenor, see Re Mahesh J Roy [2017] 2 HKLRD 935.  Mr Wong SC and Ms Cheng appeared on behalf of the Secretary for Justice.  Mr Wong’s team was mindful of the role of the Secretary for Justice in an appeal of this nature and acted in a completely impartial manner. Counsel fairly accepted that in light of some procedural defects in the proceedings (which we shall allude to below) the conviction of the appellant should be quashed.  We are very grateful for the assistance of counsel in this appeal.

6.  After hearing counsel, we allowed the appeal. We now give reasons for our judgment.

7.  The relevant facts can be summarized as follows.  On 19 August 2015, the appellant accompanied his girlfriend to attend proceedings in the Labour Tribunal.  His friend was a claimant in the proceedings.  They were present in the Tribunal when the Tribunal dealt with another case before his friend’s case was called upon.  In the course of the other case, the appellant spoke to his friend (both of them were then in the public gallery) and the Presiding Officer found the conversations disturbing the proceedings.  She therefore admonished the appellant and the appellant acted in a rather belligerent manner in response to such admonition.  He was able to respond to the Presiding Officer in English and made no suggestion that he had difficulties in understanding English.  The Presiding Officer did not take the matter further at that stage.

8.  After finishing the proceedings in the previous case, the Presiding Officer called on the case involving the friend of the appellant.  As soon as the Presiding Officer asked the parties to take the seats at the bar table, the appellant tried to talk to his friend.  Despite the intimation by the Presiding Officer that such course was not permitted, the appellant insisted on doing so.  He refused to sit down notwithstanding repeated directions by the Presiding Officer.  He kept saying that he would complain against the Presiding Officer and declined to stop talking to his friend.  He said he would call the police.  The Presiding Officer read out Section 42 to him and then adjourned the proceedings for police to be called.

9.  The proceedings were adjourned for slightly more than one hour.  When it was resumed, a police officer was there.  the Presiding Officer said to the appellant:

“ Now, having considered the conduct, just now, I consider that it was an insulting behaviour contrary to section 42 of the Labour Tribunal Ordinance, and the police officer will bring you back to Yau Ma Tei Police Station and then you will be released on police bail inthe sum of 3,000 on your own recognisance. And you will have to return to this court tomorrow, 11 am, and you have every single right to bring a lawyer. Okay, understand?”

10.  Though it may appear from this statement that the Presiding Officer concluded that the appellant acted in breach of section 42, she actually did not do so.  Judging from subsequent developments (set out below), what the Presiding Officer probably meant was that she proposed to consider if the appellant was guilty of an offence under section 42 on the next day and in the meantime the appellant could be put on bail.  She also told the appellant that he had the right to bring a lawyer at the next hearing.

11.  The Presiding Officer tried to resume with the case of his friend and told the appellant to go to police station.  The friend indicated she had to follow the appellant to the police station and declined to proceed with her case on her own.  The Presiding Officer intimated she would dismiss the friend’s claim if she refused to proceed.  She insisted on leaving the court room and the claim was dismissed by the Presiding Officer after she left.

12.  On 20 August 2015, the appellant appeared before the Presiding Officer and informed her that he had not yet been able to have legal representation.  He had approached several lawyers and received some legal advice.  However, the lawyers could not attend at short notice.  He also did not want to incur costs to engage lawyers.  He thought the matter would have to be dealt with by the magistrates court at Sai Wan Ho if he was charged.

13.  The Presiding Office adjourned the matter to 27 August 2015 to enable him to get a lawyer.  She also enquired with the appellant as to his proficiency in English.  The appellant told the Tribunal that he normally did not need an interpreter but if one were to be appointed he asked for interpretation in Hindi.

14.  On 27 August 2015, Mr A Marwah (not the Mr S Marwah appearing with Mr McCoy before us) appeared for the appellant.  At first he applied for an adjournment as he had limited instructions and did not find himself in a position to represent the appellant properly to contest the proceedings.  On the other hand, the Presiding Officer was keen on completing the proceedings on that day.  She invited counsel to listen to the audio recordings of 19 August 2015.  Though she alluded to the disturbance by the appellant to both sets of proceedings on 19 August 2015 (including the first case in which the appellant’s friend was not a party), that unfortunately was not picked up by her clerk.  Thus, we were told (and accepted) that the clerk did not play back the audio recordings of the first case to Mr A Marwah.  The transcript of the first case was not included in the appeal bundle before us. However, we have listened to the audio recording of the first case and had it played back to both teams of lawyers before the hearing of the appeal.

15.  Due to the above misunderstanding, Mr A Marwah had not been fully informed of the matters the Presiding Officer had in mind when she told him that she was proceeding under section 42(1)(b) of the LTO. The difficulty was compounded by the rather unhelpful response of the Presiding Officer when Mr A Marwah requested for a statement of allegations against the appellant.  Earlier on, the Presiding Officer had told Mr A Marwah that the proceedings were brought against the appellant for “disturbing and interrupting” proceedings.  Later when Mr A Marwah made a request for a statement of facts, the Presiding Officer simply referred to “wilfully interrupt the proceedings” without setting out the particulars of the charge.  When Mr A Marwah asked for more information, the exchange was as follows:

“ MR MARWAH: I think he was trying to express his contrition to the court because, of course, what he expressed to me outside was that, of course, he respects the court and did not intend to show any disrespect. But, if I may, Ma'am, the principal problem that I have in defending Mr Roy is that I don’t have a statement of allegations against Mr Roy, which he would have been, of course, been entitled to, under article 11 (2) (a) or (2) (b) of the ...

COURT: What statement?

MR MARWAH: ... Bill of Rights. I mean, there -- he needs to be given, in his own language -- if I may, Ma'am, he needs to a -- he needs

‘ (a) to be promptly informed [and] in detail in a language which he understands of the nature and the cause of the charge against him; [and]

(b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing.’

COURT: But, Mr . …

MR MARWAH: At the moment, …

COURT: … Marwah, …

MR MARWAH: I'm sorry.

COURT: Mr Marwah, the hearing was on 19 August, …

MR MARWAH: Yes, Ma'am.

COURT: … and then I immediately adjourn the next day for him to seek legal assistance and, then, at that time, he said he need a week so that was why it’s adjourned today and now you said -- how long would you -- you are here; you must have full instructions. Now, so, his stance is – that’s why I’m asking you. He must have the benefit of the legal representation, I agree, but you are here to represent him. So my question, initially, was whether or not he still want to argue section 42 does not apply to him or whether or not he accept that that was an insulting behaviour and he wish leniency or apologies. Which one?

MR MARWAH: I can make it very clear that Mr Roy does not accept that he wilfully interrupted or behaved in an insulting manner towards the court -- towards the tribunal. He does accept that the court's proceedings were interrupted and, of course, he does accept that the court feels insulted or feels that his behaviour was insulting but that’s a far cry from ...

COURT: No, you can see, the second limb, even the second limb, is a “Or” there.

MR MARWAH: Yes, I understand that and, of course, I don’t mean to be glib because the problem will, of course, be that I have not had -- I accept that the court has now told me that he's being charged under section 42(b) but I don’t have a statement of what exactly it is alleged that he did that was ...

COURT: Wilfully interrupt the proceedings.

MR MARWAH: Yes, I understand that that is the limb of the test that the court is referring to but, normally, in a case of this manner, there would be a brief statement of facts, a statement of allegations …

COURT: Not in …

MR MARWAH: … against him.

COURT: … the Labour Tribunal, so far as I'm aware of.

MR MARWAH: Yes, I understand that and I appreciate that that would not be the normal procedure in the Labour Tribunal but, of course, under article 11(2) of the Bill of Rights, he has a right to that, irrespective of the current ...

COURT: Right to?

MR MARWAH: ... practice of the Labour Tribunal.

COURT: Right to what?

MR MARWAH: He has a right to be informed and in detail, in a language which he understands, of the nature and the cause of the charge against him. Now, I accept that the tribunal has expressed that he is being charged under 42(b) but, if I may, the difficult is, in the recording, Ma’am referred to insulting behaviour but, then, earlier today, Ma’am referred to interruption and, at the moment, I don't have a clear idea of exactly what it is that he was meant to have done.

COURT: Well, I read out the whole section.  I think I read out the whole section before I stand the case down.”

16.  After the recording was played for a second time (and did not include the recording of the first case), the Presiding Officer explained that her reference to insulting behaviour on an earlier occasion was the reference to the general heading of Section 42.  She did not give any further statement of particulars and instead hastily proceeded to make a finding of guilt:

“ MR MARWAH: You can see the --perhaps, Ma'am, that encapsulates the difficulty in which I find myself in, which was, before attending today, I didn't understand that the tribunal was proceeding under part (b) and, even within that, although I have heard and I can see that, possibly, allegations might be made under one part of part (b) or another part of part (b), he’s -- the Mr Roy is entitled to have a clearly defined set of facts that he can face. And he can say they are proved or not proved …

COURT: Mr Marwah, …

MR MARWAH: ... and, without that statement of facts, …

COURT: … I don't intend to delay the proceedings any more. Now, any instructions on how I should proceed on the penalty? Or you need the lunchtime to address me? To take instruction?

MR MARWAH: With respect to the penalty -- so, do I take it that the court has made a ruling with respect to the liability aspect?

COURT: Yes.

MR MARWAH: Perhaps, I could have a few minutes to take instructions …

COURT: How about …

MR MARWAH:   ... in mitigation?”

17.  Before that, after the first playback of recording, the appellant had already apologized to the court in these words.

“ MR MARWAH: ... I wonder -- I've just taken some instructions from my client and there is something that he'd like to say to the court. I think it may assist the court, perhaps, before dealing with any substantive matters. If he could just have, perhaps, two minutes to just address the court about something?

COURT: Yes.

MR ROY: I’m not literate, I’m not educated. In my childhood, I did not go to school. The first time that I came here. In my heart, it was not there that I should disturb the court. Sometimes, I go to other courts and ...

HINDI INTERPRETER: “To”.

MR ROY: ... listen to the hearings and I do not disturb the court. I’ve been living in Hong Kong since 25 years. If there is some misunderstanding caused by me by your Worship, a misunderstanding, I would like to apologise to your Worship.

And the other matters is that my girlfriend who's the mother of my child. It was my sincere intention to help her and ...

HINDI INTERPRETER: “Because”.

MR ROY: ... she asked assistance from me. That’s all. It was not in my heart or not in my intention to disturb the court at that time. Sometimes, I go to the High Court, District Court to listen to the hearings and I do not disturb them at that time.

COURT: Even though you are interest to help your girlfriend but, in the first case, you were definitely talking to your girlfriend and that was I have already warned you not to talk at the back.

MR MARWAH: Ma’am, I took some instructions on that matter. I understand that what he was saying at that time to his girlfriend was only his attempt to explain that her case was coming up next. It wasn't having any other kind of conversation. And he expressed to me outside that he had not intended to speak in a way that would be audible to your Worship.

COURT: But, Mr Marwah, …

MR MARWAH: Yes.

COURT: … you heard the ...

MR MARWAH: Yes.

COURT: the transcript. It's audible. And, also, I have warned him not to speak at the back. He said he have every right to talk.

MR MARWAH: I think that that may be a result of a misunderstanding about -- if I may put it this way: of course, there is a right for applicants and claimants and parties in the Labour Tribunal to have the assistance of what might be called McKenzie friends but, of course, and I have explained this to Mr Roy, that does not entitle them to speak in such -- at a tone or at a volume which would be disturbing to the proceedings in the court.

I think, unfortunately, because of his linguistic limitations, if I can call them that, Mr Roy has explained to me that he wasn't intending to speak in a way that he thought would be audible to the court and, when he spoke to the court, he was trying to explain to the court his – that he was only attempting-- if I can put it in a lawyer’s way, as a McKenzie friend, not in an attempt to interrupt or insult the court.

I can see that he said some things in the recording that I think that I heard that he seemed to repeat in – to me in instructions, which, frankly, I had trouble understanding, even with the assistance of the Hindi language interpreter, partly—it’s partly clear that he does not understand the vagaries of the proceedings in this tribunal and he was trying to express something about the case which was -- it sounded like he was aiming a comment at the court, when, actually, he was trying to say something about his assistance to the claimant in this case and I think that misunderstanding may have come across in a way which Mr Roy did not intend.

        If I may, your Worship -- or Ma’am, if -- that, I think, was intended as Mr Roy’s apology. I don’t know if that resolves the matter for the tribunal but, if it does not, perhaps, I can make submissions on how the case can proceed.”

18.  Further, Mr A Marwah had also indicated to the Presiding Officer that the appellant may run a defence on the basis that he did not act wilfully:

“ MR MARWAH: If I may, Ma’am, I -- on the hand, personally, I can see from the recording how Ma'am will have come to the view that he was possibly interrupting the proceedings and may have been understood to have been insulting but, of course, with the benefit of instructions, I can also see that there may have been a misunderstanding in that he was not wilfully doing it. I mean, just at this initial juncture, I can see how the wilful requirement may not be satisfied. And that might have been exacerbated by the fact that he does not speak English very well and would not have understood the court’s warnings properly and would not have been able to communicate his difficulty to the court fully.”

19.  In the circumstances, it was somewhat surprising that the Presiding Officer deemed appropriate to convict the appellant without hearing full submissions on the question of wilfulness.

20.  Mr McCoy advanced a number of grounds to support the appeal.  Mr Wong agreed with some and refuted others.  In our judgment, it is not necessary for us to discuss all the grounds.  It suffices for us to hold that the conviction must be set aside on any one of these grounds alone:

(a)   The failure on the part of the Presiding Officer to give clear particulars of the charge to enable the appellant and his counsel to defend;

(b)   The failure on the part of the Presiding Officer to hear the appellant’s case on lack of wilfulness and her lack of consideration of this defence;

(c)   The failure on the part of the Presiding Officer to consider the adequacy of the apology offered by the appellant at the hearing of 27 August 2015;

(d)   The failure on the part of the Presiding Officer to give reasons for her determination on conviction.

Some general propositions regarding summary power to commit for contempt in face of court

21.  Before we address these grounds, it may be helpful for us to set out some general propositions regarding the exercise of power under Section 42 of LTO and the summary power of courts to punish contempt in the face of the court.  These are draconian powers as the persons found guilty could be punished by imprisonment.  As such, the rights of a defendant in criminal proceedings under article 11 of the Hong Kong Bill of Rights are engaged, see Secretary for Justice v Cheung Kai Yin [2016] 4 HKLRD 367 and YBL v LWC [2017] 1 HKLRD 823. 

22.  In some instances, in order to be effective, the summary process has to be conducted before the judicial officer who presides at the proceedings in which the alleged contempt has been committed.  Section 42(1) expressly provides that the power is to be exercised by “the presiding officer”, viz the presiding officer in whose presence the wrong was committed, see section 42(1)(a). 

23.  By reason of the right to a fair trial under article 10 of the Hong Kong Bill of Rights (which is engaged as much as the rights under article 11), the judicial officer must maintain impartiality in hearing the case against a person under Section 42 and he should not appear to be a prosecutor acting in his own cause, see Wilkinson v S [2003] 1 WLR 1254 at [23] to [27]; Kyprianou v Cyprus (No 2) (2007) 44 EHRR 27 at [118] to [128]; Robertson v HM Advocate (2007) SLT 1153 at [64] to [65] and [78] to [81].  As held by Hale LJ (as she then was) in Wilkinson v S, supra at [25]the common law rule against apparent bias is equally applicable.

24.  However, in cases where the wrongful behaviour was not targeted at the judicial officer or where there is no dispute of fact, with proper procedural safeguards in place to secure the overall fairness of the proceedings, it is possible for the same judicial officer to hear the case without apparent bias, see Robertson v HM Advocate, supra.  In that case, the Lord Justice Clerk drew the distinction between acts of contempt directed at the judge personally (by conduct exciting his personal emotions, as in the case of Kyprianou v Cyprus (No 2) supra.) and acts of contempt directed at the administration of justice (Robertson concerned a witness prevaricating in giving evidence).  In the latter type of situation, the learned judge said at [80]:

“ 80. …When the conduct is directed at the administration of justice, it is positively the duty of the presiding judge to decide whether it is contemptuous. The judge has seen the conduct at first hand and can best assess how serious it is. … If he proceeds in this way, the deterrent effect of any penalty imposed is all the greater. As this court observed in Mayer v HM Advocate, in the case of contempt by a witness there is much to be said for the view that, in the administration of justice, prompt and effective steps should be taken to deal with the situation (per Lord Penrose at para 60).

81. Such a procedure does not, in my view, make the judge a judge in his own cause.  Since the contempt is not directed at him, I can see no reason why an impartial and informed observer, knowing of the judicial oath, should see any appearance of bias if the presiding judge deals with the matter himself …”

25.  The Lord Justice Clerk further said at [99]:

“ There may be exceptional cases where, even though the contempt is not directed personally against the judge, it would be inappropriate for him to deal with the matter himself. I have in mind cases where, for example, the judge has to make a finding on disputed facts as to which he himself was a witness … or where he may have compromised himself by prematurely expressing a concluded view… In such cases it would be contrary to the concept of fairness if the trial judge were to deal with the matter himself.”

26.  We respectfully agree with this analysis.  In terms of the application of the principle in a case under Section 42 LTO, there is a distinction between contempt by way of threatening or insulting expression directed personally at the presiding officer (which, according to Kyprianou v Cyprus (No 2) supra., may engender a situation of apparent bias and should therefore not to be dealt with by that presiding officer) and contempt by way of wilful interruption of proceedings (which should be dealt with by the presiding officer). 

27.  Having said so, it does not mean that a presiding officer would be powerless in the face of insults or threats heaped against him.  The presiding officer can remind the person involved that the court has to maintain its solemnity and decorum and insults and threats have no place in a courtroom.  If the person persists, despite the reminder, the presiding officer can order the person to be excluded from the courtroom in order to maintain the orderly conduct of the proceedings.  If that person is a litigant, the presiding officer can consider adjourning the proceedings or give directions for paper disposal of the matter if it is appropriate.  If such courses are not viable (for example, if the incident occurs in the course of the giving of evidence by such person), a warning can be given for the possibility of contempt proceedings being brought before another judge.   

28.  Further, it must also be observed that there is nothing wrong for a judge to reserve the question of contempt in the face of court to be dealt with by summary process at a later stage.  As held in the English Court of Appeal in R v Santiago [2005] 2 Cr App R 24 at [19] to [27], what was said in this regard in Balogh had subsequently been tempered by the judgment in Wilkinson v S [2003] 1 WLR 1254 at [19] to [21].  The correct position was set out by Hooper LJ in R v Santiago supra, at [27],

“ We conclude that a judge is entitled to defer taking action on a prima facie contempt. He may adjourn the issue of whether a contempt was committed and any issue of punishment until later. The fact that the trial is over or the fact that there is no immediate need to take action does not prevent the judge from later taking action. Indeed he should not take action immediately if to do so would be unfair to the defendant. … It seems to us that the threat of summary contempt proceedings made at the time of the incident may well be effective in restoring or maintaining order whereas risk of prosecution in the magistrates’ court would not be so effective (if effective at all). It would be strange if having properly made the threat, the judge was precluded … from holding the proceedings.”

29.  In the Labour Tribunal, legal representation is not allowed except in relation to proceedings under Section 42.  Hence, in order to facilitate legal representation being procured, an adjournment is inevitable.  In our view, such adjournment should not prevent the presiding officer from hearing the case. 

30.  One of the rights guaranteed under article 11 of the Hong Kong Bill of Rights [“HKBoR”] is the right to be informed of the nature and cause of the charge a person is facing.  The Court of Appeal recently considered this right in YBL v LWC [2017] 1 HKLRD 823 at [38] to [43].  In the context of a summary process for committal of contempt in the face of the court, the significance of such a right was considered in Maharaj v AG for Trinidad and Tobago [1977] 1 All ER 411; HKSAR v Leung Ka Ching [1997] 3 HKC 466; MacGroarty v Minister for Justice [1990] LRC (Crim) 594.

31.  To fulfil that requirement, it is not sufficient to tell a person the relevant statutory provision under which he is charged, he should also be informed of the substance of it with particulars.  In the context of a summary process, the particulars need not be of the same level of detail as those in a count of indictment (see Appuhamy v The Queen [1963] AC 474 at p.488).  However, it must satisfy the requirement that there must be sufficient particularity to enable the defendant to defend himself, knowing what exactly he is said to have done or omitted to do which constitutes a contempt of court, see Chiltern District Council v Keane [1985] 1 WLR 619 at p.622; YBL v LWC, supra, at [39] to [43]. 

32.  As explained by the High Court of Australia in MacGroarty v Minister for Justice, supra at p.598, such a requirement is essential to the fair opportunity of a defendant to defend himself:

“ That requirement is not a mere matter of form or procedure. It is fundamental for the reason that the specific statutory offence must be identified if the person charged is to be informed of the elements of what is alleged against him and afforded an adequate opportunity of answering the charge …”

33.  In addition to the right to be informed of the substance of the charge, in our judgment the following are the irreducible minimum for a fair process even in the context of a summary procedure:

(a)   The defendant should be allowed a reasonable opportunity to obtain legal representation and to prepare his defence;

(b)   The defendant should be given an opportunity to be heard on his defence on the facts as well as the law;

(c)   If there is a dispute over the facts, the defendant must have the opportunity to examine witnesses.

34.  Further, it has to be borne in mind that committal is a last resort.  When softer options are open, they should be considered.  Though it is the duty of every party (including judicial officers and lawyers) to conduct themselves in a temperate manner in court, court proceedings are usually contentious and at times the expression of views in a forceful manner is not pleasant.  It is important that judicial officers should exercise self-restraint to demonstrate by way of example to others in court that one should not be too carried away by one’s emotion in order to maintain the orderly, proper and effective conduct of court business.  The court should also give due allowance for outbursts arising from the stress of litigation. 

35.  When a breach of proper behaviour occurs, very often it is more effective to adopt a progressive approach: rebuke and admonition coupled with a short adjournment, a demand for apology, extracting an undertaking not to repeat such behaviour, a warning to the wrongdoer that he may be excluded from the courtroom.  All of these more moderate alternatives may, in many cases, be more effective and appropriate.  Even if an act of contempt has occurred, the court has the discretion not to proceed by way of committal, see Re Perkins [1998] 4 VR 505.  In terms of sharp remarks or rude exchanges, the following observation by Priestley JA in Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201 at 209A to C is worth repeating:

“ The courtroom is a place where conflicts of many kinds are intended to take place and, at the end of the process, to be decided. In the progress of the case towards decision it is part of rather than interference with the proper administration of justice that opposing views are expressed. It is inevitable that expressions of view sometimes become very forceful and, when met with opposition cause heat between the people putting the differing views forward. Heat leads to sharp words and sometimes rude exchanges. These things are regrettable and usually regretted by the participants. In the overwhelming number of cases it never occurs to anyone that these incidents constitute interference with the proper administration of justice. They are part of it. When matters become extreme the power to punish for contempt is available. The comparative rarity of the use of this power in contrast to the innumerable incidents of heated behaviour in courtrooms shows how fully accepted it is that conflict in court is part of the ordinary routine of the proper administration of justice. Whether behaviour in court goes so far beyond a tolerable degree of heat and conflict as to justify the description of interference with the proper administration of justice will be a question of fact in each case.”

36.  On the other hand, courts will not tolerate conduct which obviously cross the line and goes beyond mere vigorous assertion of one’s case.  Personal insults and disrespectful statements directed against judicial officers, beyond the due allowance for disappointed or frustrated litigants[2], have to be halted.  Otherwise, as the New South Wales Court of Appeal said in Toner v Attorney General for New South Wales [1991] NSWCA 267:

“ if such were to become a general rule, or even common, it would change the conditions in which our courts have traditionally and beneficially functioned. It would run the risk of substituting for calm and orderly procedures the ranting and intimidating harassment …”

37.  In cases where it is necessary for the judicial officer to intervene in order to restore order and calmness to the proceedings, apart from having a short adjournment, the court does have the power to enlist the assistance of police officers and in appropriate cases to direct the arrest of the responsible person to bring him before the court, see Re Perkins, supra.  and Section 10(p) of the Police Force Ordinance Cap 232.  The judicial officer also has the inherent power to grant bail and can deal with the matter according to its seriousness in a proportionate manner as discussed above.  In this respect, we agree with Mr McCoy that the proper course is for the judge or judicial officer to grant bail instead of leaving the matter to the police to grant police bail.

38.  As to the other rights under article 11 of the HKBoR, we need not repeat what have been discussed in YBL v LWC, supra, at [36] to [52] and [62].  Since Mr McCoy had referred to the right to have legal representation in his written submissions, we reiterate what was said at [46] to [48] in that case.  In the context of proceedings in the Labour Tribunal, notwithstanding Section 23(2)(b) of the LTO expressly permits legal representation in Section 42 proceedings, because of the exemption in para 10 of Schedule 2 Part II to the Legal Aid Ordinance, Cap 91, legal aid is not available.  We are also told that the Duty Lawyer Scheme does not cover proceedings under Section 42 of the LTO.  This would appear to be an anomaly. We would urge the Director of Legal Aid and the Secretary for Home Affairs to consider as matter of priority remedying this situation by, say, removing Section 42 proceedings from paragraph 10 in the exemption or some other measure such as expanding the scope of the Duty Lawyer Scheme.

Application of the principles to the present case 

39.  In the present case, the Presiding Officer pronounced at the hearing on 27 August 2015 that she was considering the matter under the limb of wilful interruption of proceedings under Section 42.  In our judgment, this limb is concerned with conduct (like a prevaricating witness) which targets the due administration of justice.  Hence, in principle, there can be no objection to the Presiding Officer hearing the case unless she had conducted herself in a manner giving rise to an appearance of bias.  In respect of the latter, Mr McCoy drew our attention to the following remarks by the Presiding Officer which could suggest that she had made up her mind as to the disruption of proceedings by the appellant before hearing him. 

“ (i) On at least 4 occasions during the 19 and 27 August hearings, the Presiding Officer indicated that she already considered him guilty of contempt.

Now, having considered the conduct, just now, I consider that it was an insulting behavious contrary to section 42 … I think that is a contempt.

… last time, my view was he disturbed my proceedings … I find him disturbing las time …

Right from the first case he had been disturbing and interrupting.

… now, do you understand that you have tried to interrupt me last time?

(ii) At the 19 August hearing, the Presiding Officer spoke dismissively and disparagingly of him, asking one of the litigants “Are they always like this?” ”

40.  Mr Wong agreed that those remarks may well give rise to an appearance of bias to a fair-minded and informed observer.

41.  We have read the transcripts carefully.  It seems to us in the second reference the Presiding Officer was referring to the friend of the appellant rather than the appellant.  As regards the other references, they are no doubt unwise remarks, notwithstanding in the overall context of the proceedings the Presiding Officer was mindful of the need to afford the appellant the opportunity to defend with legal representation and she was willing to afford an opportunity to Mr A Marwah to listen to the audio recording and hear his submissions on behalf of the appellant.  The real problem, as it was also submitted by Mr McCoy, was that the Presiding Officer had reversed the burden of proof.  Further, as we shall discuss below, the crucial issue was not whether the appellant had in fact disrupted proceedings (he admitted he had in his apology), but whether he had done so wilfully.  Unfortunately, the Presiding Officer overlooked that requirement when she hastily decided liability against the appellant.

42.  We are in agreement with counsel that the Presiding Officer had not adequately informed the appellant the particulars of the charge.  On 19 August 2015, she only read to the appellant Section 42 (1) in full without even specifying under which limb the appellant might have been found guilty.   That was clearly insufficient to give the appellant the information he needed on the gist of the charge to enable him to properly defend himself. 

43.  On 27 August 2015, though the Presiding Officer referred to the appellant disturbing proceedings and asked Mr A Marwah to listen to the relevant audio recordings, the scope of the charge was apparently not clear to the appellant, the lawyer and the judicial clerk as the proceedings in the first case were not replayed.  That was understandable because the Presiding Officer gave no indication in the course of the first case that she intended to resort to Section 42 on account of the appellant’s behaviour in the public gallery.  The Presiding Officer also made no reference to the first case when she read Section 42 to the appellant on 19 August 2015.

44.  Such misunderstanding could have been avoided if the Presiding Officer had provided clearer particulars on the disturbance of the appellant.  Thus, even though the Presiding Officer referred to the first case again after the playback of the recording, the appellant and Mr Marwah might not have had a full picture as to the specific conducts in the first case since the recording had not been played back.  Nor did the Presiding Officer explain the basis on which she could revert back to the first case when no action was taken in terms of Section 42 during the course of the first case.

45.  We have set out the exchange between the Presiding Officer and Mr A Marwah on the statement of allegations.  With respect, though the Presiding Officer narrowed down the case to wilful interruption of proceedings, she did not quite address her own mind to the issue of wilfulness before she told Mr A Marwah that she concluded the question of liability and invited counsel to address her on penalty.  Had she paused to work out the particulars of the charge, she would have realized that the element of wilfulness was in issue and she should not conclude the question of liability that hastily.  In effect, the Presiding Officer did not hear the appellant on the issue of wilfulness before she convicted him.

46.  The appellant had explained, as part of his apology tendered on 27 August 2015 after the replay of the recording, that he did not intend to disturb the proceedings.  The issue of wilfulness was a live issue which Mr A Marwah also specifically alluded to.  We do not see any basis for the Presiding Officer to brush it aside in the way she did before coming to the conclusion that the appellant was guilty of a breach of Section 42(1)(b).

47.  In any event, having considered the seriousness of the matter by reference to the audio recordings of the first and second cases, we are of the clear view that the tendering of an apology by the appellant on 27 August 2015 should have settled the matter.  The disruption occasioned by the behaviour of the appellant in the first case was not so serious to justify a committal as apology had been tendered.  As regards the second case, it was probable that the appellant’s conduct was attributable to his misunderstanding on “the right to act as a McKenzie friend” in the context of proceedings in the Labour Tribunal.  Again the apology should have been regarded as sufficient in terms of the purging of the contempt (if any).  The Presiding Officer did not appear to have considered the adequacy of such apology.  For reasons set out above, it is wrong in principle to commit in such circumstances. 

48.  The Presiding Officer did not give a reasoned judgment on the conviction.  It is again an error which warrants intervention by this Court.  In the absence of a reasoned judgment, we do not know if the Presiding Officer had simply ignored the element of wilfulness from her consideration or, if she had considered it, the basis on which she found that the appellant interrupted proceedings wilfully.  The duty to give reason has been explained by the Chief Justice in Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority [1998] 2 HKLRD 857; the Chief Judge in Zhuo Cui Hao v Ting Fung Yee [1999] 3 HKC 634 and this Court in Welltus Ltd v Fornton Knitting Co Ltd [2013] 5 HKC 106.  In Leung Wing Yi Asther v Kwok Yu Wah (2015) 18 HKCFAR 605, Stock NPJ said at [59]:

“ The question whether reasons provided in a judgment are adequate is always case and issue specific, and is a question which is to be approached with common sense. It must, however, be made apparent to the parties, especially to the losing party, from the reasons which are provided, why the judge has arrived at his decision and:

‘  … if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision.  This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained.  But the issues the resolution of which were vital to the judge’s conclusion should be identified and the manner in which he resolved them explained.  It is not possible to provide a template for this process.’[3] ”

49.  In the exercise of the summary power to commit under Section 42, a Presiding Officer should give a reasoned judgment setting out the findings of fact and the legal analysis and conclusion flowing from such findings.  Had the Presiding Officer set out to do so in the present case, she would have realized that the finding of wilfulness might not have a cogent basis and it was not safe to convict the appellant.  As it is, we have no idea if she had addressed that issue at all. 

50.  For these reasons, we allowed the appeal and set aside the conviction of the appellant.

Costs

51.  Mr McCoy sought costs against the Secretary for Justice.  Counsel submitted that as the appellant is successful in the appeal, he should be entitled to costs based on costs following the event. 

52.  On the other hand, Mr Wong opposed on the ground that the committal proceedings were not brought about by the Secretary for Justice.  The Secretary for Justice, in accordance with the decision of this Court in the earlier ruling of 11 April 2017, took part in the appeal as defender of the public interest in respect of the administration of justice. Mr Wong acted with complete impartiality and fairly accepted that the conviction had to be set aside.  Thus, counsel submitted that as between the Secretary for Justice and the appellant, the latter could not be said to be more successful than the former.  There was no reciprocity given the difference in roles.  He also said that the Secretary for Justice should not be penalised for costs in taking up his constitutional role to take part in this appeal. Since it was the conduct of the appellant which brought about the committal proceedings in the first place, Mr Wong submitted that, by analogy with Toner v Attorney General for New South Wales, supra, it would not be appropriate to make any order for costs in his favour.  Mr Wong also submitted that the position of the Secretary for Justice was similar to that of an amicus, and as such should not bear the burden of costs.

53.  In MacGroarty v Minister for Justice, supra, the High Court of Australia allowed the appeal with costs.  Mr Wong submitted no reason was given as to the basis for costs being so ordered.  Mr McCoy submitted that the court must have regarded this as a conventional approach. 

54.  In our judgment, it is not particularly helpful to analyse the matter by examining to what extent the appellant has succeeded vis-à-vis the Secretary for Justice (in the way Mr Wong did) as if these were adversarial proceedings between these parties.  We also reject Mr Wong’s submissions based on the analogy with an amicus.  It has been made clear in the earlier ruling that the Secretary for Justice is not playing the role of an amicus.

55.  The more appropriate approach, in our judgment, is to regard this appeal as being akin to an appeal against a conviction for criminal contempt (albeit it emanates from incidents in the course of civil proceedings, as such the appeal has a civil character, see Secretary for Justice v Cheung Kai Yin [2016] 4 HKLRD 367). 

56.  The role of the Secretary for Justice in this appeal is similar to his role in a criminal appeal.  In an ordinary criminal appeal, when an appeal is allowed by reason of errors on the part of the judge, the successful appellant would get the costs of the appeal even though the appeal is conceded by the prosecution.

57.  We are of the view that the same approach should be applied in an appeal against the summary conviction under section 42 of the LTO.

58.  We do not regard the fact that the prosecution under Section 42 was not undertaken by the Secretary for Justice should make any material difference in this respect.  As the defender of the public interest in the administration of justice, the Secretary for Justice should be a party to the appeal.  In our judgment, contrary to the submissions of Mr Wong, it is an incidence of such constitutional role that the Secretary for Justice could be liable for costs even in cases where he, acting impartially and properly, does not feel able to defend the conviction. 

59.  The rationale for that approach does not stem from the responsibility of the Secretary for Justice in his role as prosecutor.  Hence, the fact that the prosecution was not brought by him is not germane.

60.  We accept that in cases where an appellant had so grossly misbehaved such that it can be said that he had brought the summary proceedings on himself the court has a discretion to deprive him of costs.  Toner v Attorney General for New South Wales, supra, is an example of that, involving a professional lawyer who should have known better.  However, in the present case, having regard to what actually happened at the Labour Tribunal on 19 August 2015, whilst we accept it was perfectly proper for the Presiding Officer to take some action in light of the behaviour of the appellant, we do not find it to be a case which calls for committal.

61.  In the circumstances, we shall order the Secretary for Justice to bear the costs of the appellant in the appeal, such costs are to be taxed if not agreed.  The appellant’s own costs are to be taxed in accordance with Legal Aid regulations.

62.  Mr McCoy also sought an order for costs in respect of the proceedings in the Labour Tribunal.  The appellant had to pay a modest fee to Mr A Marwah for his representation on 27 August 2015.  Counsel however acknowledged that there is no statutory basis for any award of such costs in the Labour Tribunal because there was no party against whom such order could be directed.  The Secretary for Justice was not a party in the Labour Tribunal.

63.  Mr Wong shared Mr McCoy’s view on the lack of jurisdiction.

64.  This appear to us to be another lacuna in the statutory scheme.  In the absence of such power, we cannot make any order for costs regarding proceedings in the Labour Tribunal.  All we can do is to urge the government to consider remedying the position as we have suggested above in respect of legal aid.

65.  Last but not least, we wish to thank counsel for their assistance in this appeal.