SECRETARY FOR JUSTICE v. CHOY BING WING

HCMP 4694/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 4694 OF 2003

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RULING  AS  TO  PENALTY

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1. In October 2003, the Secretary for Justice instituted proceedings against the respondent seeking his committal for contempt of court.  The proceedings were instituted by way of notice of motion pursuant to O.52 of the Rules of the High Court. 

2. The respondent challenged the lawfulness of those proceedings, seeking to have them struck out.  Inter alia, he did so on the basis that they disclosed no reasonable cause of action against him, that they were scandalous, frivolous and vexatious and constituted an abuse of process. 

3. That challenge was unsuccessful, both at first instance and before the Court of Appeal.  The respondent sought leave to appeal the matter to the Court of Final Appeal.  However, leave was not granted. 

4. With the determination of this preliminary challenge now finalised, this court, per Hartmann J, gave directions for the filing of evidence and the dates for hearing of the notice of motion proceedings.  The respondent chose not to appear at the directions hearing. 

5. The respondent, however, appealed those directions.  Inter alia, he submitted that leave to commence the proceedings pursuant to O.52 had been vitiated by fraud on the part of the Secretary for Justice and her counsel.  In addition, he submitted – as he has also submitted to us – that, as the proceedings against him concerned an alleged criminal contempt, O.52 had no application; to put it plainly, that the Court of First Instance had no jurisdiction.

6. It appears that the respondent further submitted that Hartmann J, who had given the directions, was unsuitable or unfit to do so.

7. That challenge was also unsuccessful.  The Court of Appeal, in a judgment dated 9 August 2005, saying the following (paras.22 and 23) :

“22. The allegation that Hartmann J’s direction on 8 June 2005 was made without jurisdiction, and was the result of fraud was completely unfounded.

23. The suggestion that Hartmann J was not suitable and unfit to give the directions and/or to sit at the hearing was again entirely without merit.  It was a blatant attempt to remove a judge whom the respondent perceived, entirely without any foundation, to have erred in granting the ex parte order for committal.”

8. We wish to make it clear that the respondent was entitled, as he saw fit, to bring these challenges.  He is not criticised for doing so and anything said later in this ruling as to his conduct is not to be taken as qualifying this in any way.

9. With the determination of this second challenge now finalised, the committal proceedings themselves took place before this court on 20 and 21 October 2005.  The respondent chose not to attend.

10. In correspondence before the hearing, however, he persisted in his allegation (despite the findings of the Court of Appeal) that this court had no jurisdiction under O.52 to determine whether he should be committed for contempt.  By way of illustration, in a letter dated 7 October 2005, after the bailiff had unsuccessfully attempted to serve notice of the hearing upon him, the respondent wrote to this court, his letter commencing :

“I was informed that a Bailiff left a message in my office yesterday intending to serve in vain a notice of hearing on me wasting resources for want of jurisdiction.”  [our emphasis]

11. As it was, the hearing of the notice of motion took place in the absence of the respondent.  In our judgment of 25 October 2005, we dealt at length with why we had determined, exceptionally, to allow the proceedings to continue although personal service of a notice of hearing had not been effected on the respondent.  In summary, we concluded that the respondent did in fact know of the dates of hearing or, in the alternative, that he had taken active steps to avoid being served with a notice of hearing and had thereby deliberately placed himself beyond the reach of the court.

12. As to the merits of the Secretary for Justice’s application, we were satisfied to the required standard that the respondent had committed a contempt of the most serious kind.  In this regard, we can do no better than quote from our judgment of 25 October 2005 (paras.89 to 92) :

“89. In our view, the written words in the respondent’s affirmation filed in support of his application and the tirade of abuse which he heaped upon the judge during the course of the application are both – individually and taken together – examples of the most serious scandalising of the court in an attempt, by that scandalisation, to achieve a specific, calculated result.  That result, which in the event the respondent failed to achieve, was the removal of Mr Justice Rogers from the hearing of the appeal.

90.  It is manifest, in our view, that the respondent was not exercising in good faith any right of ordinary criticism, even if misguided.  Instead, he indulged in sustained scurrilous, abusive attacks on the integrity of Mr Justice Rogers, and through him the court itself.  His attacks were not susceptible to any form of reasoned answer.

91.  We have examined the judgments which were the purported basis upon which the respondent criticised Mr Justice Rogers.  It is not for us to consider whether in those judgments, and any appeals flowing from them, Mr Justice Rogers was or was not correct in law.  All that need be said is that we have been able to find nothing which might even begin to suggest that Mr Justice Rogers was deserving of any of the abuse to which he was made subject by the respondent.  The respondent’s accusations were totally unwarranted and baseless.  There can be no justification for them.  They were made in bad faith.  To repeat what we have said earlier, they were made to achieve a specific end which the respondent saw at the time as being to his advantage as the representative of a litigant. 

92.  We are satisfied beyond reasonable doubt, therefore, that the respondent’s abuse and invective constituted a serious contempt of court, one which had the real risk, and certainly, in that, the real tendency, to interfere with the due administration of justice in this Territory.”

13. Although we committed the respondent for contempt of court, we were of the view that, if possible, the respondent should be brought before us so that he may, if he wished, make representations as to the issue of penalty before we determined what penalty, if any, was appropriate.

14. To this end, a warrant for his committal was issued.  It was not possible, however, to serve the warrant until 5 December 2005, more than a month after the date of our judgment.  It appears that for much of the intervening period the respondent had absented himself from Hong Kong and was in Macau. 

15. Upon his arrest, the respondent was brought before us.  The respondent sought to address us on the issue of jurisdiction and on the issue of the validity of the warrant for committal in terms of which he had been arrested.  We gave him leave to do so.  Having heard his submissions, and having heard briefly from Mr Wesley Wong, counsel for the Secretary for Justice, we ruled that we did have jurisdiction and that the warrant of committal was a valid warrant.  We informed the respondent that our reasons for these determinations would be handed down as soon as possible. 

16. We then gave the respondent the opportunity to address us in respect of the matter of penalty. 

17. In the course of his representations, the respondent said that he regretted what he had done.  He said that he had had no intention to harm the judiciary as a whole.  His intention, he said, had been simply to convince Rogers VP that he must recuse himself from sitting on the appeal of the company whose interests he was representing.  In explaining why he now regretted his actions, he said that all his attempts had come to nothing.

18. The respondent emphasised that at the time he committed his contempt, he had what he described as an ‘honest belief’ that what he was doing was for the benefit of the company he represented.  He said he was a man of strong character and had become heated.  It was, he said, difficult for him to describe, and difficult for this court to understand, what was going on in his brain at the time.

19. As we understood the respondent, he did purport to tender an apology for his actions and thereby to purge his contempt.  However, we do not accept that what he said constituted any genuine form of apology; that is, any sincere attempt to purge his contempt.

20. Yes, of course, the respondent, to employ his own language, now ‘regrets’ what he did.  That is not surprising.  The history of events in this matter shows that up until now the respondent has felt confident to challenge the machinery of the law in a belligerent, accusatory and sometimes abusive manner.  Now, however, as the respondent appreciates, that same machinery which he has so denigrated has slowly and painstakingly, seeking always to give him a chance to be heard, brought him to the point where he must answer for his contempt. 

21. In AXA China Region Insurance Co. Ltd v. Li Yu Ping Ellen [2002] 3 HKC 339 at 363, Stock JA spoke of a defendant who had also been found liable for contempt and had unreservedly apologised for her conduct.  We can do no better than adopt the learned judge’s description of the true nature of that apology as being directly applicable in the present case :

“This is a false apology.  It is a device deployed by the defendant, intended to avoid imprisonment in the event that all else fails.  That is self-evident from the history of the case …”

22. In the course of his representations – effectively, his plea in mitigation – the respondent attempted to lessen his culpability by saying that Rogers VP should have told him to stop his abusive conduct and warn him that he was in danger of being found in contempt of court.  If that had been done, said the respondent, he would have stopped. 

23. That, we think, having heard the transcript, would have been most unlikely.  The respondent was at the time set on a calculated course of conduct to try and ensure that, with a tirade of abuse, he could obtain the result he desired; namely, to obtain the recusal of Rogers VP, and, by that result, to fashion the Court of Appeal to his own liking. 

24. The respondent is an educated man, an engineer by profession.  This was not the first time he had been in court.  He knew what he was doing.  Indeed, during the course of his tirade before the Court of Appeal, he challenged Rogers VP to commit him for contempt.  In our judgment of 25 October 2005, we have made mention of this : see paras.85 to 87 inclusive.  To illustrate the point, however, we cite again just one extract from the transcript of proceedings, these being the words of the respondent :

“… I sit here and wait for you to telephone Andrew Li that Bing Choy make allegation I am the crook, or you ask the Secretary for Justice to serve on me contempt of the court and put me down in gaol. …”

25. In our judgment of 25 October 2005, we made it plain that, in our view, the actions of the respondent which constituted his contempt were premeditated and deliberate.  In this regard, we can do no better than repeat what we said in our judgment (para.84) :

“… We emphasise again, however, that this was not merely a moment of exasperation by an individual overcome by the stress of litigation.  It is, in our view, an exercise in intimidation, a clear attempt by the respondent to have the court constituted as he wishes it and to do so by means of heaping one extreme accusation upon another.  In our opinion, the accumulation of language constituted of itself a form of violence.  A more timid judge may well have been overwhelmed.”

26. We appreciate, of course, that litigation, for the litigants themselves and often for their legal representatives too, can be a trying process, at times no doubt exasperating.  In such circumstances, from time to time, there may be unintended outbursts of emotion.  But the respondent’s actions, as we have said, were not of this nature at all.  They were calculated and invidious and were, as we have said, intended to undermine the administration of justice by fashioning it to the self-serving desires of a single litigant. 

27. The respondent, we fear, has mistaken the respect shown to him in all the proceedings which have constituted this matter as a form of weakness.  He must appreciate, however, that the administration of justice, if it is to function efficiently and fairly, must be able to protect itself from assaults upon it of the kind committed by him.  This matter is not concerned with the dignity of individual judges, it would be a mistake to think so.  This matter is concerned with the integrity of the administration of justice and through that with the rule of law. 

28. We accept that the respondent is no longer a young man and that over the years he appears to have earned himself a respected position in his profession.  We accept that any period of imprisonment will tell on him.  We also accept that in the course of these proceedings, and, it appears, generally in his dealings with the law over the past several years, he has lost a good deal of his sense of objectivity and balance.  But the contempt for which he has been committed was grave and must, in our view, be met with a penalty of imprisonment.

29. In our judgment, taking all matters into account, we consider that the justice of the matter demands that the respondent serve a period of six months’ imprisonment, that period to be calculated from the date of his arrest.  We make an order to that effect.