SECRETARY FOR JUSTICE v. CHAU WAN YING AND OTHERS

HCMP 774, 776-781, 783, 784, 787-789, 791-798/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS

NOs 774, 776-781, 783, 784, 787-789, 791-798 OF 2015

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(Heard together)

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D E C I S I O N

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INTRODUCTION

1.   The principal question which I have to decide is what is the consequence of a lapse of the leave granted by the court to an applicant to apply for an order of committal as a result of his failure to enter the originating summons for hearing within 14 days after such leave was granted under Order 52, rule 3(2) of the Rules of the High Court (Cap 4A) – in particular does the lapse of leave mean that the court has no jurisdiction to entertain a fresh application by the applicant for leave to apply for an order of committal against the same respondent within the same set of proceedings?

2.  In what follows, references to “Order” and “rule” shall, unless the context indicates otherwise, be references to the Rules of the High Court.

BACKGROUND FACTS

3.  These contempt proceedings, commenced by the Secretary for Justice against the 20 respondents herein, arose out of events occurring at portions of Nathan Road between Argyle Street and Dundas Street on 26 November 2014 in connection with the execution of an injunction order granted by Mr Justice Au on 10 November 2014 and amended on 21 November 2014 in HCA 2104/2014 (“the Amended Injunction Order”).

4.  The underlying facts giving rise to these proceedings are well known to the parties and I do not propose to set them out in this decision.

5.  On 2 April 2015, the Secretary for Justice applied for leave to apply for an order of committal against each of the 20 respondents (collectively “the 1^st Leave Applications”).  Each application, made ex parte pursuant to Order 52, rule 2(2), was supported by (i) a written statement dated 2 April 2015 (“the Statement”), and (ii) an affirmation of Tsui Wing Yan Yvonne affirmed on 2 April 2015 and the exhibits thereto (“Tsui’s First Affirmation”).

6.  On 16 April 2015, this court granted leave to the Secretary for Justice to apply for an order of committal against each of the 20 respondents (collectively “the April Orders”).

7.  On 29 April 2015, the Secretary for Justice, pursuant to the leave granted by the court as aforesaid, issued an originating summons under Order 52, rule 3(1) against each of the 20 respondents (collectively “the 1^st Originating Summonses”) seeking, inter alia, an order that the respondent be committed to prison and/or fined for criminal contempt of court by “interfering with and/or impeding the due execution on 26 November 2014 of [the Amended Injunction Order] by refusing to leave the obstructed area covered by the injunction order despite repeated warnings”.

8.  The 1^st Originating Summonses were not, however, entered for hearing within 14 days after leave was granted as required by Order 52, rule 3(2).

9.  On 22 July 2015, the Secretary for Justice applied (collectively “the 2^nd Leave Applications”), again on an ex parte basis, against each respondent for leave to:-

(1) amend the Statement as per the copy annexed to the application (“the Amended Statement”) pursuant to Order 52, rule 2(6); and

(2) make an application for committal for criminal contempt of court against the respondent “on the facts and grounds appearing in the [Amended Statement] pursuant to Order 52 rule 2(2) of the Rules of the High Court (Cap 4A) accompanying this application which is supported by [Tsui’s First Affirmation] and the Second Affirmation of Tsui Wing Yan Yvonne affirmed on 22 July 2015 and filed herein and the exhibits thereto”.

10.   In the Affirmation of Mr Suen Sze Yick filed on 30 November 2015, it is said that what prompted the 2^nd Leave Applications was the discovery of a factual error in the evidence of Madam Chim Fung Ling, Assistant Chief Bailiff (“Madam Chim”) relating to the sequence of the bailiff’s announcement and certain acts of the crowd that took place in the course of the execution of the Amended Injunction Order on 26 November 2014, whose evidence was relied upon by the Secretary for Justice in support of the 1^st Leave Applications.  According to Mr Suen, Madam Chim first requested for clarification of the error in her witness statement on 13 May 2015, and the Department of Justice was informed of such request on 26 May 2015.  Following internal deliberation as to the proper way forward and receipt of senior counsel’s advice, the Department of Justice took the view that a further ex parte application should be made for (i) leave to amend the Statement, and (ii) leave to apply for an order of committal against each respondent on the basis of the corrected Statement.  The draft documents for the purpose of the 2^nd Leave Applications were prepared and later cleared by senior counsel on 21 July 2015 and, as earlier mentioned, the 2^nd Leave Applications were made on 22 July 2015.

11.   On 30 July 2015, this court granted the relief sought by the Secretary for Justice under the 2^nd Leave Applications (“the July Orders”).

12.   On 3 and 5 August 2015, the Secretary for Justice issued fresh originating summonses against the respondents (collectively “the 2^nd Originating Summonses”) pursuant to the July Orders.

13.   On 7 August 2015, the Secretary for Justice issued, in respect of each respondent, a notice of appointment to hear the originating summons pursuant to Order 52, rule 3(2).

14.   All respondents now seek to challenge the July Orders, although the precise relief sought by them is not identical. 

15.   By summonses taken out by the respondents in HCMP 783, 784, 788, 791, 796 and 798 of 2015 (represented by Mr Hector Pun SC and Mr Earl Deng) and by the respondent in HCMP 774 of 2015 (represented by Mr Lawrence Lok SC and Ms Christine Yu) dated 23 November 2015, they seek an order that the leave granted by the court to the Secretary for Justice to apply for an order of committal on 30 July 2015 be set aside.

16.   By a summons taken out by the respondents in HCMP 776, 778, 780, 787, 792 and 795 of 2015 (represented by Mr Lawrence Lok SC and Ms Christine Yu) dated 23 November 2015, they seek:-

(1) a declaration that –

(a) the leave to apply for committal against them granted on 16 April 2015 lapsed on 30 April 2015,

(b) the court had no jurisdiction to grant leave to amend the Statement on 30 July 2015, and

(c) the court had no jurisdiction to grant leave to apply for committal against them on 30 July 2015 on the facts and grounds appearing in the Amended Statement; and

(2) an order to set aside the July Orders.

17.   By summonses taken out by the respondents in HCMP 777, 779, 781, 789, 793, 794 and 797 of 2015 (represented by Mr Gerard McCoy SC and Mr Albert N B Wong) dated 23 November 2015 and 22 February 2016 respectively, they seek:-

(1) a declaration that the leave to make applications for committal for contempt of court against them has lapsed, and/or

(2) an order that the originating summons in each of HCMP 777, 779, 781, 789, 793, 794 and 797 of 2015 filed on 5 August 2015 be dismissed for lack of jurisdiction; or

(3) an order that the July Orders granting leave to the Secretary for Justice upon the 2^nd Leave Applications filed on 22 July 2015 be set aside for material non-disclosure and/or abuse of process.

18.   In response to the respondents’ applications, the Secretary for Justice issued a summons on 30 November 2015 seeking:-

(1) a re-grant of leave to commence contempt proceedings against the respondents should the leave granted under the July Orders be set aside on the ground of material non-disclosure and/or abuse of process; and

(2) further or alternatively, an extension of time to issue a notice of appointment to hearing originating summons pursuant to the leave granted under the April Orders in respect of each respondent should the court set aside the July Orders and dismiss the 2^nd Originating Summonses on the ground that the leave granted under the April Orders has lapsed by reason of the failure to comply with Order 52, rule 3(2).

19.   In passing, I should record that although the respondent in HCMP 793/2015 (Szeto Tse Long Jason) was not made a party to the Secretary for Justice’s summons (for some procedural reasons which it is not necessary to go into in this decision), Mr Albert Wong who appeared for that respondent confirmed that he was content to treat the Secretary for Justice’s summons as having been made against that respondent as well and no objection would be taken on the issue of service of that summons.

THE RESPONDENTS’ APPLICATIONS

20.   Three principal grounds are relied upon by the respondents in support of their applications, namely, that:-

(1) The lapse of the leave granted under the April Orders resulted in the court having no jurisdiction to make the July Orders.  This argument has been put on behalf of the respondents in various ways.  Mr McCoy in his written submissions puts it as a “lapse of jurisdiction”, in contradistinction to a “procedural defect”, which it is said cannot be cured by powers to amend which are premised on the principle that form should not overrule substance.  Mr Lok argues that once leave has lapsed the entire committal proceedings must have collapsed and cannot proceed further, and that the proceedings could not be revived by the court granting fresh leave, or an extension of time under Order 3, rule 5. Mr Pun argues that the lapse of the leave granted under the April Orders means that there is “nothing further” for the court “to continue with” in respect of the current proceedings and therefore the 2^nd Leave Applications are invalid and/or a nullity.

(2) The 2^nd Leave Applications were not “fresh” applications for leave to apply for orders of committal, and in any event were not properly constituted by reason of the fact that the Secretary for Justice did not pay the prescribed court fee (HK$1,045) for commencement of each “originating ex parte application”.

(3) The leave granted under the July Orders should be set aside on the ground of material non disclosure or failure on the part of the Secretary of Justice to observe the duty of candour.  The matters which it is said the Secretary of Justice ought, but failed, to disclose when making the 2^nd Leave Applications are:-

(a) a full account of the status of the proceedings subsequent to the 1^st Leave Applications, in particular that the leave granted under the April Orders had lapsed by reason of the failure to enter the 1^st Originating Summonses for hearing within 14 days after leave was granted and the consequences flowing from such lapse;

(b) the Secretary for Justice had paid the prescribed court fees upon commencing the 1^st Leave Applications and again when issuing the 1^st Originating Summonses, but did not do so upon commencing the 2^nd Leave Applications; and

(c) (according to Mr Pun) the Secretary for Justice’s position that he did not need to pay the prescribed fee twice, once when making a leave application and again when issuing an originating summons.

21.   I shall consider each of these grounds of objections below.

COURT’S JURISDICTION AFTER LAPSE OF LEAVE

(i) Proper approach for determining the consequence of non-compliance

22.   The conventional approach when there has been non-compliance with a time or other procedural requirement laid down by a statute for the commencement or prosecution of proceedings is to seek to ascertain whether the requirement which was not complied with should be categorised as “directory” or “mandatory”.  Generally, the statute would not state whether the requirement is directory or mandatory.  There would be no difficulty if the statute expressly stipulates the consequence of the non compliance.  On the other hand, if the statute does not do so, the distinction between directory and mandatory requirements would not assist in answering the question of what should be the consequence of the non-compliance.

23.   The modern approach for determining the consequence of non-compliance with a time or other procedural requirement laid down by a statute is to treat the matter as one of statutory construction, and the court’s task is to ascertain what the legislature intends to be the consequence of the non-compliance, having regard to the language of the statute, the legislative purpose of the requirement in question and the relevant factual context in which the non-compliance occurred. 

24.   In R v Secretary of State for the Home Department, ex p Jeyeanthan [2000] 1 WLR 354, the non-compliance related to the use of a prescribed form for making an application for leave to appeal against a special adjudicator’s decision to the Immigration Appeal Tribunal.  The application (contained in a letter) included all the relevant information required by the prescribed form except a declaration of truth.  The question was whether the failure to use the prescribed form rendered the application for leave to appeal a nullity.  It was held by the English Court of Appeal that although the omission of the declaration of truth meant that the application failed to comply substantially with the relevant statutory requirement, the omission was an irregularity which could be cured and had been waived, and the application should not be treated as a nullity.  Lord Woolf MR (with whom Judge and May LJJ agreed) stated the court’s approach to procedural irregularities as follows:

“The issue is of general importance and has implications for the failure to observe procedural requirements outside the field of immigration. The conventional approach when there has been non-compliance with a procedural requirement laid down by a statute or regulation is to consider whether the requirement which was not complied with should be categorised as directory or mandatory. If it is categorised as directory it is usually assumed it can be safely ignored. If it is categorised as mandatory then it is usually assumed the defect cannot be remedied and has the effect of rendering subsequent events dependent on the requirement a nullity or void or as being made without jurisdiction and of no effect. The position is more complex than this and this approach distracts attention from the important question of what the legislator should be judged to have intended should be the consequence of the non-compliance. This has to be assessed on a consideration of the language of the legislation against the factual circumstances of the non-compliance. In the majority of cases it provides limited, if any, assistance to inquire whether the requirement is mandatory or directory. The requirement is never intended to be optional if a word such as ‘shall’ or ‘must’ is used…

By contrast, a requirement may be clearly directory because it lays down a time limit but a tribunal is given an express power to extend the time for compliance. If the tribunal grants or refuses an extension of time the position is clear. If the time limit is extended the requirement is of no significance. If an extension is refused the requirement becomes critical. It may, for example, deprive a member of the public of a right to appeal which if exercised in time would have been bound to succeed. In the latter situation a directory requirement has consequences which are as significant as any mandatory requirement…

It must be remembered that procedural requirements are designed to further the interests of justice and any consequence which would achieve a result contrary to those interests should be treated with considerable reservation…

I suggest that the right approach is to regard the question of whether a requirement is directory or mandatory as only at most a first step. In the majority of cases there are other questions which have to be asked which are more likely to be of greater assistance than the application of the mandatory/directory test. The questions which are likely to arise are as follows.

1. Is the statutory requirement fulfilled if there has been substantial compliance with the requirement and, if so, has there been substantial compliance in the case in issue even though there has not been strict compliance? (The substantial compliance question.)

2. Is the non-compliance capable of being waived, and if so, has it, or can it and should it be waived in this particular case? (The discretionary question.) I treat the grant of an extension of time for compliance as a waiver.

3. If it is not capable of being waived or is not waived then what is the consequence of the non-compliance? (The consequences question.)

Which questions arise will depend upon the facts of the case and the nature of the particular requirement. The advantage of focusing on these questions is that they should avoid the unjust and unintended consequences which can flow from an approach solely dependant on dividing requirements into mandatory ones, which oust jurisdiction, or directory, which do not. If the result of non-compliance goes to jurisdiction it will be said jurisdiction cannot be conferred where it does not otherwise exist by consent or waiver.”

25.   In Seal v Chief Constable of South Wales Police [2007] 1 WLR 1910, Lord Bingham of Cornhill (with whom Lord Carswell and Lord Brown of Eaton-under-Heywood agreed) affirmed that the focus of the inquiry should be the legislative intention of what would be the consequence of non-compliance.  At paragraph 7, the following was stated:-

“The important question is whether, in requiring a particular condition to be satisfied before proceedings are brought, Parliament intended to confer a substantial protection on the putative defendant, such as to invalidate proceedings brought without meeting the condition, or to impose a procedural requirement giving rights to the defendant if a claimant should fail to comply with the requirement; but not nullifying the proceedings: see R v Soneji [2006] 1 AC 340, para 23. To answer this question a broader inquiry is called for.”

26.   This approach can also be seen in Lord Bingham’s judgment in R v Clarke [2008] 1 WLR 338 at 347, quoting with approval the following passage in the judgment of Fulford J in R v Ashton [2007] 1 WLR 181 at paragraph 4:-

“In our judgment it is now wholly clear that whenever a court is confronted by failure to take a required step, properly or at all, before a power is exercised (‘a procedural failure’), the court should first ask whether the intention of the legislature was that any act done following that procedural failure should be invalid. If the answer to that question is no, then the court should go on to consider the interest of justice generally, and most particularly whether there is a real possibility that either the prosecution or the defence may suffer prejudice on account of the procedural failure. If there is such a risk, the court must decide whether it is just to allow the proceedings to continue.”

27.   In Adorian v Metropolitan Police Commissioner [2009] 4 All ER 227, the relevant procedural requirement, under section 329 of the Criminal Justice Act 2003, was the court’s permission being obtained before a claimant could bring civil proceedings for damages in circumstances where the act complained of amounted to trespass to the claimant’s person but the claimant had been convicted of an imprisonable offence committed on the same occasion as that on which the act was alleged to have been done.  The English Court of Appeal held that the above requirement was procedural and directory, and that if proceedings were brought without permission the defect could, if appropriate, be cured on application to the court.  At paragraph 34, Sedley LJ (giving the judgment on behalf of the Court of Appeal) stated as follows:

“A need to invalidate such proceedings unless leave is first obtained is undoubtedly exceptional and may be unique. Certainly, as their Lordships were careful to stress in Seal's case [2007] 1 WLR 1910, the imposition of a jurisdictional bar on access to the courts is a drastic measure, in contrast to a requirement that proceedings, once instituted, can be struck out if they do not pass muster, whether on specified statutory criteria or because they have no realistic chance of success.”

28.   In Bank of Ireland v Colliers International UK plc [2013] Ch 422, which concerned a failure to obtain the consent of the administrator or the permission of the court prior to the commencement of proceedings against a company in administration, David Richards J summarised the effect of the decisions of the House of Lords in Seal and of the Court of Appeal in Adorian as requiring the court to “look beyond the language of the section to the entire context of the provision, its purpose, and the consequences of a decision as to its effect, with a general pre-disposition that the lack of prior permission should not render the proceedings a nullity” (see paragraph 30 of his judgment).

29.   In Fabrique Ebel Societe Anonyme v MBO Far East (HK) Ltd [1985] 1 HKC 166, civil contempt proceedings were commenced without leave of the court as required by Order 52, rule 2.  Hunter J (as he then was) held that the failure was an irregularity which the court could, and should, cure, on the ground that Order 2, rule 1 had done away with the old distinction between nullities and irregularities such that every mistake and omission was to be regarded as an irregularity which the court could and should rectify so long as it could do so without injustice.  At 168-170, Hunter J stated as follows:-

“So that the position is this. The applicants have launched their application without first obtaining leave under O.52. In those circumstances they invite the court, to regulate the proceedings by a necessary assuaging order under O.2 r.1; an order which would retrospectively give them leave and direct that the proceedings are to continue as if leave had initially been granted.

Three points have been taken on this. The first is whether or not this is the sort of mistake in respect of which discretion can properly be exercised under O.2…

O.2 r.1 follows verbatim the change in the rules introduced in England in 1965. That came before the Court of Appeal in Harkness v. Bell's Asbestos and Engineering Limited (1967) 2 Q.B. 729. In the course of giving his judgment in that case the Master of the Rolls, Lord Denning says this: -

‘This new rule does away with the old distinction between nullities and irregularities ..... Every omission or mistake in practice or procedure is henceforth to be regarded as an irregularity which the court can and should rectify so long as it can do so without injustice.’

I should explain that before this alteration was brought about, a body of case law had developed which drew a distinction (a very difficult dividing line it was) between mistakes which rendered the procedural step a nullity, and mistakes which simply constituted irregularities. What Lord Denning was there saying firmly was that that distinction has now gone. That in substance is why the rule says that a number of failures which are set out ‘shall be treated as irregularities’. That is also I think why the M. R. says that the court not only can, but should, rectify such errors, so long as it can do so without injustice…

I accept that this is a procedure which ought to have been followed. It is an important step in so far it is a protection to the liberty of the individual. I believe that when one finds that a failure like this has taken place, the first question which the court has to ask itself is: What would I have done if an application for leave had been made. And if the answer to that is: I would have granted leave without hesitation: then I think that that is the way to approach this particular application. I have no doubt here that had application been made to me for leave, it would have been granted. In those circumstances I ask myself what injustice is there now in validating proceedings which have continued since last October, on the assumption on everybody's part that they were valid and effective. I cannot see any. So my answer to the first question is that this is a proper case for the exercise of the Court's discretion under r. 2.”

30.   In passing, I observe that the judgment of Hunter J in Fabrique Ebel Societe Anonyme was referred to with approval by the Court of Appeal in Effiscient Ltd v Lehman [2012] 3 HKLRD 671, which held, in the context of proceedings for civil contempt, that leave granted to apply for an order of committal which had lapsed under Order 52, rule 3(2) could be revived by the power of the court under Order 3, rule 5(1) and (2) to extend time, even after the time for compliance had expired.

(ii) Application to the present case

31.   In the present case, there is no dispute that the Secretary for Justice’s failure to enter the 1^st Originating Summonses for hearing within 14 days after leave was granted under the April Orders resulted in the lapse of the leave as granted.  That is what Order 52, rule 3(2) states in plain terms.  It does not necessarily follow, however, that the lapse of the leave granted carries the further consequence that the court is thereby deprived of any further jurisdiction to grant fresh leave to the Secretary for Justice to apply for an order of committal against the respondents in the same proceedings.

32.   In my view, the following considerations strongly militate against any legislative intention that the lapse of leave should carry such consequence.

33.   First and foremost, it seems to me to be clear that the court has jurisdiction to entertain a fresh leave application by the Secretary for Justice in new proceedings to be commenced after the original leave has lapsed.  Although Mr Pun expressly reserved his position on this matter, he did not advance any substantive argument to support the contention that the court has no jurisdiction in such circumstances.  For my part, I am unable to see why a mere failure on the part of the Secretary for Justice to comply with the time requirement under Order 52, rule 3(2) should lead to the consequence that he should forever be barred from seeking an order of committal against the respondents in new proceedings to be commenced.  There are many cases where the courts have allowed or permitted an applicant to commence fresh proceedings for an order of committal after the first proceedings have been set aside or dismissed in circumstances where the respondent has not been “in peril of punishment” in the first proceedings: see Jelson (Estates) Ltd v Harvey [1983] 1 WLR 1401; El Capistrano SA v A T O Marketing Ltd [1989] 1 WLR 471; Incorporated Owners of United Building v Ng Yuk Ming [1994] 3 HKC 637; and Aqua-Lesiure Industries Inc v Aqua Splash Ltd, HCA 18928/1998 (18 April 2001).  Although those cases all relate to civil contempt, I do not consider there is any difference between civil contempt and criminal contempt for this purpose.  On the other hand, if the court can entertain an application for fresh leave in new proceedings, I see no good reason why the application cannot be made in the existing proceedings.  The difference between the two seems to me to be more a matter of form than substance.  In my view, the overall interest of justice would demand that the court should continue to have jurisdiction to entertain fresh leave applications by the Secretary for Justice in the existing proceedings so that there could be a proper adjudication on the merits of the cases without unnecessary costs or delay.  The existence of jurisdiction would not, of course, preclude the court from exercising its discretion to refuse to grant fresh leave, or later to set aside the fresh leave as granted, in appropriate circumstances.  

34.   Second, the purpose of the time requirement under Order 52, rule 3(2) is, I apprehend, to ensure that contempt proceedings would be prosecuted by an applicant promptly after leave to apply for an order of committal has been granted.  Any failure to comply with the time requirement would result in the lapse of the leave as granted such that it can no longer be utilized by the applicant to satisfy the requirement under Order 52, rule 2(1), namely, that no application for an order of committal against any person may be made unless leave to make such an application has been granted by the court. This sanction would be sufficient to satisfy the legislative purpose behind the time requirement under Order 52, rule 3(2).  There seem to me no good reason why the applicant’s failure to comply with the time requirement should attract the further sanction that he may not seek fresh leave for an order of committal in the same proceedings.

35.   Mr Pun argued that if the Secretary for Justice were allowed to have a second bite of the cherry by making a fresh leave application in the existing proceedings despite the lapse of the first leave, it would render the 14-day time limit under Order 52, rule 3(2) otiose.  I do not accept this argument because, as earlier mentioned, the lapse of the first leave has the effect that it can no longer be relied upon by the applicant to satisfy the requirement under Order 52, rule 2(1).  The logic of Mr Pun’s argument, if correct, would equally apply to any fresh leave application made in new proceedings.  I am unable to accept that the legislature intends that a mere failure to comply with the time requirement under Order 52, rule 3(2) should be visited with the drastic consequence that the Secretary for Justice would forever be debarred from seeking an order of committal against the respondents.

36.   Third, the purpose of the leave requirement under Order 52, rule 2(1) appears to be to “avoid persons being harassed by applications for committal which are either obviously unfounded or oppressive, or perhaps applications which have some suspicion of oppression about them” (per Hunter J in Fabrique Ebel Societe Anonyme at 168E-G).  Again, the “no-jurisdiction” consequence contended for by the respondents would not, it seems to me, be required to give effect to such purpose of the leave requirement.

37.   Mr Pun referred me to the decision of Yeung J (as he then was) in Aqua-Lesiure Industries Inc v Aqua Splash Ltd, HCA 18928/1998 (18 April 2001) and submitted that a “strict approach” is required in an application for an order of committal for contempt of court, and that “strict compliance” with the requisite rules must be observed.  It should be noted, however, that the learned judge was there dealing with a completely different problem, namely, the applicant’s failure to set out sufficient particulars of the allegations in the notice of motion (under the former version of Order 52) and the statement in support of the leave application, and the question that he had to decide was whether the defects could be cured by the contents of the supporting affidavit.  The learned judge held that the defects could not be so cured, and set aside the leave granted.

38.   Incidentally, it is of note that Yeung J said that the setting aside of the leave was “without prejudice to the plaintiffs commencing a fresh proceeding on properly formulated Statement”. I do not read the learned judge as expressing the view that leave could only be sought in fresh proceedings, because the question of whether the court had jurisdiction to grant fresh leave in the existing proceedings was, it would seem, never debated.

39.   The respondents also argued that I had decided, in my previous decision in Secretary for Justice v Cheng Kam Mun [2015] 5 HKLRD 41, that after the lapse of leave the proceedings should cease as a matter of jurisdiction.  In fact, there was no application for fresh leave in the cases before me on that occasion and I did not have to deal with the question of whether the lapse of leave under Order 52 rule 3(2) would mean that the court could not grant fresh leave in the same proceedings. The four questions that I had to consider were set out in paragraph 22 of that decision.

40.   In all, I am of the view that the court had jurisdiction to make the July Orders notwithstanding the lapse of leave granted under the April Orders.

THE 2^ND LEAVE APPLICATIONS WERE FRESH LEAVE APPLICATIONS

41.   The 2^nd Leave applications were, on their face, fresh leave applications.  In each application, the Secretary for Justice sought, in terms, (1) leave to amend the Statement, and (2) leave to make an application for committal for criminal contempt of court against the respondent.  The July Orders also expressly granted to the Secretary for Justice (i) leave to amend the Statement, and (2) leave to make an application for committal for criminal contempt of court against the respondents.

42.   At paragraph 15 of Mr McCoy’s written submissions, he suggested that because Mr Suen had said at paragraph 16 of his affirmation that “no thought was directed towards whether a new set of HCMP numbers should be adopted”, that would be an indication that the Secretary for Justice was not aware that he was applying for, or obtaining, “fresh leave”.  It seems to me that the assignment of a case number to any cause or matter is merely an administrative matter, and has little bearing on the question of whether the 2^nd Leave applications ought properly to be treated as fresh leave applications. 

43.   At paragraph 16 of Mr McCoy’s written submissions, he further argued that the leave granted to make an application for committal “on the basis of a correct version of statement of facts” under the July Orders “merely rode on the back of the application to amend the statement of facts, upon the assumption the original jurisdiction was still engaged”.  A similar same point was made by Mr Lok at paragraphs 26 and 27 of his speaking notes dated 23 February 2016.  In my view, the 2^nd Leave Applications included two applications: (1) an application for leave to amend the Statement, and (2) an application for leave to apply for an order of committal.  I fail to see why the fact that there was an application for leave to amend the Statement would mean that there was not also an application for leave to apply for an order of committal.

44.   Both Mr Lok and Mr Pun argued that the 2^nd Leave applications were not fresh leave applications because the Secretary for Justice did not pay the prescribed fee upon the commencement of the applications.  Rule 2(1) of the High Court Fees Rules (Cap 4D) provides that the fees respectively specified in the First and Second Schedules shall be payable in respect of all proceedings in any action or matter whatsoever in the High Court, “whenever commenced”. Paragraph 1 of the First Schedule, under the heading “commencement of a cause or matter”, provides for payment of the fee HK$1,045 on sealing (inter alia) “(e) an originating ex parte application”.  My reading of the rules is that a court fee is payable upon the “commencement” of proceedings, including an originating ex parte application for leave to apply for an order of committal.  However, since the 2^nd Leave Applications were made in existing proceedings which had already been commenced and the appropriate fees had previously been paid upon the commencement of those proceedings, I do not consider that a separate fee had to be paid upon the making of the 2^nd Leave Applications.  In any event, even if I am wrong on this point, I do not accept that the failure of the Secretary for Justice to pay fees when making the 2^nd Leave Applications means that they were not fresh leave applications.

45.   In all, I consider that the Secretary for Justice made fresh applications for leave to apply for an order of committal against the respondents on 22 July 2015, and the court granted fresh leave to the Secretary for Justice on 30 July 2015.

THE 2^ND LEAVE APPLICATIONS WERE PROPERLY CONSTITUTED

46.   The respondents submitted that because Secretary for Justice failed to pay the prescribed fees upon commencing the 2^nd Leave Applications, those applications were not properly constituted and therefore the court had no jurisdiction to make the July Orders.

47.   I have already dealt with the question of whether the Secretary for Justice was required to pay the prescribed fees upon commencing the 2^nd Leave Applications.  Assuming that I am wrong in my view that no fees were payable in the circumstances, the question of whether the 2^nd Leave Applications should be regarded as being not properly constituted would arise.  This again raises an issue of statutory construction, and the inquiry is whether the legislature intends that a failure to pay the prescribed fees under the High Court Fees Rules means the proceedings are a nullity.

48.   The High Court Fees Rules do not prescribe the consequence of a failure to pay the prescribed fees.

49.   On the other hand, in relation to procedural requirements imposed by the Rules of the High Court, Order 2, rule 1(1) provides as follows:-

“Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of any thing done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify proceedings, any step taken in the proceedings, or any document, judgment or order therein.”

50.   Although Order 2, rule 1(1) applies, on its face, only to a failure to comply with the requirements of the Rules of the High Court (“these rules”) and not to a failure to comply with the requirements of the High Court Fees Rules, this rule embodies a clear legislative intent regarding the consequence of a failure to comply with procedural requirements imposed by the Rules of the High Court, namely, to treat any failure as an “irregularity” only, leaving it to the court to decide what should be the just consequence of such failure under Order 2, rule 1(2).  That being the position, I believe it to be a fortiori that the legislature does not intend to nullify proceedings commenced without payment of the prescribed fees under the High Court Fees Rules.

51.   The respondents have drawn my attention to two cases in support of their argument. First, there is the decision of H H Judge Lopez in Price v Egbert H Taylor & Co Ltd (Birmingham County Court, 9 October 205).  That case concerns the consequence of a failure to pay the prescribed fee for issuing an application for an extension of time for the service of the claim form, the particulars of claim, the schedule of loss and medical evidence in support of an action in personal injury.  As one can see from paragraph 26 of the judgment in that case, the Civil Procedure Rules (CPR) in the UK contain express stipulations relating to the consequence of non-payment of fees.  Also, an issue of limitation period arose in that case (see paragraphs 7 and 76 of the judgment).  I do not consider this judgment to be helpful in deciding whether a failure to pay the prescribed fees under High Court Fees Rules upon the commencement of proceedings would lead to the proceedings being treated as a nullity.

52.   Next, there is the decision of the Court of Appeal in Re Li Jing [2015] 2 HKLRD 933, where the applicant failed to pay the required fee before lodging a notice of appeal against a judge’s decision refusing the applicant’s ex parte application for leave to apply for judicial review.  The fee was in fact paid after the 14-day time limit for appeal had expired.  The Court of Appeal did not hold that the proceedings commenced by the notice of appeal were a nullity for non-payment of the required fee.  As rightly observed by Mr Benjamin Yu SC (for the Secretary for Justice), in that case the applicant required an extension of time to appeal in any event, and the Court of Appeal did consider whether time ought to be extended to allow the applicant to appeal.  Again, I do not consider the decision of the Court of Appeal in Re Li Jing supports the respondents’ argument.

53.   If, contrary to my view, the Secretary for Justice was required to pay the prescribed fees upon commencing the 2^nd Leave Applications, I consider that the failure to pay the fees would amount only to an irregularity but would not nullify the 2^nd Leave Applications or any of the steps taken thereafter in these proceedings.  In that scenario, the irregularity could and, in my view, should be cured by ordering the Secretary for Justice to pay the outstanding prescribed fees.

54.   In all, I reject the respondents’ argument that the 2^nd Leave Applications were not properly constituted, or that the court had no jurisdiction to make the July Orders, by reason of the Secretary for Justice’s non-payment of the prescribed fees upon commencing the 2^nd Leave Applications.

MATERAL NON DISCLOSURE/BREACH OF DUTY OF CANDOUR

55.   I can deal with the complaint of material non disclosure and breach of the duty of candour briefly.

56.   The relevant principles relating to material non disclosure and the duty of candour are well known and I do not propose to set them out in this decision.

57.   In relation to the first matter relied upon by the respondents, namely, the alleged failure to set out a full account of the status of the proceedings subsequent to the 1^st Leave Applications, in particular that the leave granted under the April Orders had lapsed by reason of the failure to enter the 1^st Originating Summonses for hearing within 14 days after leave was granted and the consequences flowing from such lapse:-

(1) The fact that the leave granted under the April Orders had lapsed by the time of the 2^nd Leave Applications was self-evident on the face of the materials before the court and, in my view, there was no requirement to make disclosure of such self-evident matter.  The legal consequence of the lapse of leave is a matter of law.  Although the duty of full and frank disclosure may extend to matters of law and procedure in some circumstances (see Memory Corp plc v Sidhu [2000] 1 WLR 1443 at 1454C-G, per Robert Walker LJ), I have rejected the respondents’ contention that the lapse of leave means that the court has no jurisdiction to grant fresh leave in the same proceedings, and I do not see that the Secretary for Justice could be required to “disclose” (or set out) the respondents’ arguments regarding the consequences flowing from the lapse of leave, even if one were to assume that the Secretary for Justice was aware of the respondents’ arguments at that time.

(2) I also have considerable reservations on whether the fact that the leave granted under the April Orders had lapsed was relevant to the weighing operation that the court had to carry out in deciding whether to grant fresh leave.  The court’s main consideration was whether the procedural and substantive requirements for granting leave under Order 52, rule 2 were satisfied, and whether it would be appropriate to grant leave on the basis of the grounds set out in the statement and affidavit filed in support of the leave application.

58.   In relation to the second matter relied upon by the respondents, namely, the failure to disclose the fact that the Secretary for Justice had paid the prescribed court fees upon commencing the 1^st Leave Applications and again when issuing the 1^st Originating Summonses, but did not do so upon commencing the 2^nd Leave Applications, I have reached the conclusion that the Secretary for Justice was not required to pay the prescribed fees for commencing the 2^nd Leave Applications, and thus there was no question of material non disclosure.

59.   Lastly, in relation to the third matter relied by Mr Pun, namely, the failure to disclose the Secretary for Justice’s position that he did not need to pay the prescribed fee twice, once when making a leave application and again when issuing an originating summons, I do not see how the omission by the Secretary for Justice to disclose his stance in relation to the matter of payment of the prescribed fee, assuming that he had formulated some such stance at the time of the 2^nd Leave Applications, can properly form the subject matter of material non disclosure in the present cases.  Either a fee was payable, or not payable, depending on the true construction of the High Court Fees Rules. As it is, I have come to the conclusion that the Secretary for Justice was not required to pay another set of fees for making the 2^nd Leave Applications. Whether that is because no fee is payable for making a leave application, or because no fee is payable for making a second leave application in the same proceedings, makes no difference in the context of the present cases.

60.   In any event, even if there was some material non disclosure or breach of duty of candour by the Secretary for Justice on any one or more of the grounds raised by the respondents, I would exercise my discretion not to discharge the leave granted under the July Orders, for the following reasons:

(1) The affidavit of Mr Suen Sze Yick filed on 30 November 2015 on behalf of the Secretary for Justice indicates that the non disclosure regarding to the lapse of the leave granted under the April Orders was “innocent”.  The explanation given by Mr Suen has not been seriously challenged by the respondents, and it has not been suggested that the non disclosure was intentional or made in bad faith.

(2) If leave is set aside, it would be open to the Secretary for Justice to commence fresh proceedings to seek leave to apply for an order of committal against each of the respondents.  This would only serve to increase costs and cause further delay with no benefit to any party.

(3) No tactical advantage has been gained by the Secretary for Justice in the way that the matter was dealt with by seeking fresh leave in the existing proceedings.

DISPOSITION AND OTHER MATTERS

61.   For the foregoing reasons, I dismiss the respondents’ summonses.

62.   Having reached the above conclusions, it is not necessary for me to deal with the Secretary for Justice’s summons dated 30 November 2015, and I make no order on that summons.  Some of the issues raised by the Secretary for Justice’s summons are interesting but academic in view of my decision on the respondents’ summonses.  I do not consider it justifiable to delay the handing down of this decision in order for me to deal with those academic issues, having regard to the history of these matters.  Should it become necessary for those issues to be determined by the Court of Appeal, I doubt whether any input on those issues by me would be of much assistance to the Court of Appeal, in view of the fact that they raise questions of law and/or discretion upon essentially undisputed primary facts.

63.   On the question of costs, I make an order nisi that:-

(1) the Secretary for Justice shall have the costs of the respondents’ summonses, to be taxed if not agreed, with certificate for two counsel;

(2) there be no order as to the costs of the Secretary for Justice’s summons; and

(3) the respondents’ own costs are to be taxed in accordance with Legal Aid Regulations.

64.   Lastly, the parties are agreed that:-

(1) these 20 actions shall be tried together with 45 days reserved; and

(2) the deponents to the affidavits or affirmations listed in Schedule 2 to the Secretary for Justice’s skeleton submissions dated 4 November 2015 shall stand as their evidence in chief, provided that the deponents shall attend the trial to be cross examined on their affidavits or affirmations.

65.   I therefore grant leave to the Secretary for Justice to fix dates for the substantive hearing of the 20 actions together, with 45 days reserved.  I also make a direction in terms of (2) above.

66.   Lastly, it remains for me to thank counsel for the assistance that they have rendered to the court.