SAI CHU HO AND ANOTHER v. YUN SING CHENG AND OTHERS

1990, No. A5457

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Mr Cheng is released from his undertakings, the prosecution will be hampered in its conduct of its case.

An undertaking a litigant has given to the court is something the litigant has volunteered to his opponent and to the court and from which (presumably) he has obtained some benefit. The court will release a litigant from such an undertaking only if sufficient grounds are shown for doing so; the question I have to consider is whether sufficient grounds have been showing for doing so here.

At the conclusion of the argument before me on 20th August 1993, I held that no such sufficient grounds had in fact been shown here and I indicated that I would reduce my judgment, explaining my reasons for so holding, into writing. This is that judgment.

Mr Cheng is a compellable witness for the prosecution. His compellability does not, however, preclude him from claiming privilege against having to answer a specific question or questions. If his claim is a proper one, his refusal to answer the question will not be a contempt of the court hearing the criminal proceedings.

Mr Cheng, then, clearly has no right to object altogether to giving evidence. His only right is to object to answering a specific question, on the ground that he has a proper claim to privilege against having to do so.

Does the fact that he has given the undertakings in question give rise to a proper claim for privilege? That must be a matter for the judge hearing the criminal proceedings, not for this court. But it may be helpful if I set out the considerations which, as it seems to me, the judge ought to bear in mind.

1. There is one relevant ground on which, prima facie, Mr Cheng may claim privilege against answering a specific question; that is, that giving his answer may expose him to a charge of contempt of this court, which partakes of the nature of a criminal charge and for which he may be punished and sent to prison: See Comet Products UK Ltd. v. Hawkex Plastics Ltd. [1971] 2 QB 67 (esp. per Lord Denning MR at p.73).

[Where a litigant has given an undertaking to the court not to disclose a document to third parties without the leave of the court, but makes such disclosure under compulsion of an order made by another court, he does not expose himself to any real risk of being punished for contempt]

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J U D G M E N T

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1. This is an appeal from an order of Master Woolley made on 10th August 1993 whereby he refused an application by Cheng Yun Sing ("Mr Cheng") to be released from certain undertakings he gave to this court on 18th December 1992 in these actions.

2. The undertakings given by Mr Cheng were not to disclose, prior to the hearing of those actions, to any third party other than his own solicitors and counsel, copies of, or the contents of, any affidavit or document served upon or disclosed to him by the other parties save with their consent or the leave or order of the court.

3. On those undertakings, this court, by consent, stayed all further proceedings in the actions (with certain immaterial exceptions) until after the conclusion of certain criminal proceedings at first instance against Ho Sai Chu and Ko Tze Ha, Salina.

4. Mr Cheng was summoned to appear as a Crown witness in those criminal proceedings. He affirmed on 10th August 1993, but immediately referred to the undertakings he had given. The prosecution was placed in a quandary.

5. This application, although nominally made by Mr Cheng, is actually made at the instance of the Crown. The Crown apparently believes that, unless

2. No witness in any proceedings, criminal or civil, is bound to answer a question when his answer to that question may expose him to a real risk of being punished for doing so.

3. Mr Cheng can invoke this privilege so as to refuse to produce from his custody, or refer to the contents of, any private document.

4. In deciding whether or not to allow any claim for privilege made on this ground by Mr Cheng, the judge must decide whether or not there really is reasonable ground for Mr Cheng to apprehend danger to himself from his being compelled to answer the question.

5. The judge must be satisfied that the claim is made bona fide for the protection of Mr Cheng, and not for ulterior purposes : See In Re Reynolds (1882) 20 Ch. D.294. (If he concludes it is really a matter of indifference to Mr Cheng himself whether he shuts up like a clam or sings like a canary, he should disallow it on that ground alone.)

6. If the judge decides to compel Mr Cheng to answer a specific question, the chance of Mr Cheng in fact having to face proceedings for contempt of this court subsequently as a result of having done so is in fact remote in the extreme; for no judge of this court would hold Mr Cheng guilty of a contempt of this court by reason only of his answering, under compulsion of an order by another court, a question put to him in that court.

6. It follows that the judge hearing the criminal proceedings (although, I repeat, the matter is one for him and not for me) would be justified, if he thought the interests of justice required it, in compelling Mr Cheng to answer any specific question put to him if his only claim to privilege against doing so was a claim founded on his feared exposure to proceedings for contempt of this court for breach of his undertakings. If the judge does decide to compel Mr Cheng to answer some specific question, neither he, nor (more importantly) Mr Cheng need in fact fear that Mr Cheng will be exposed to any real risk of such proceedings.

7. In these circumstances, no sufficient grounds have been shown to justify Mr Cheng's application and, as I have said, it was for this reason that I rejected this appeal.

8. The Crown has agreed to bear the costs of Mr Cheng and of the other parties brought here as respondents to Mr Cheng's application. The order I make dismissing Mr Cheng's appeal from the order of Master Woolley will reflect this agreement.