CHOY BING WING v. PRESIDENT OF HONG KONG INSTITUTE OF ENGINEERS (HKIE)

HCA1994/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 1994 OF 2012

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BETWEEN

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D E C I S I O N

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1.  There are 2 applications before the court:

(1) The Plaintiff’s appeal against the order of Master A Ho made on 11 January 2013 dismissing the Plaintiff’s summons for a stay of the proceedings pending determination of an alleged perjury said to have been made by the Defendant in his affirmation filed on 10 December 2012 (“D’s 1^st Affirmation”), alternatively, an order that D’s 1^st Affirmation be struck out.

(2) The Plaintiff’s summons issued on 8 March 2013 (“P’s Unless Order Summons”) for an unless order to compel the Defendant to file an affirmation in reply to the Plaintiff’s affirmation dated 6 December 2012 (“P’s 1^st Affirmation”) and the Plaintiff’s 2^nd Affirmation dated 7 January 2013 (“P’s 2^nd  Affirmation”).

Background

2.  The Plaintiff commenced this action on 24 October 2012 seeking an injunction to restrain the Defendant (by himself or through his agents or servants) from continuing the prosecution of disciplinary proceedings brought by The Hong Kong Institution of Engineers (“HKIE”) against him including holding the inquiry hearing on 9 November 2012.

3.  By a summons issued on 29 November 2012, the Defendant applies to strike out the action which was returnable on 14 December 2012 (“D’s Strike Out Summons”). This summons was supported by D’s 1^st Affirmation filed on 10 December 2012.

4.  On 6 December 2012, the Plaintiff issued a summons to strike out D’s Strike Out Summons (“P’s Strike Out Summons”) which was supported by P’s 1^st Affirmation filed on the same day.  One of the grounds relied upon by the Plaintiff in support of his application is that the disciplinary proceedings commenced by HKIE was based on “the purported criminal conviction due to purported contempt of Court”.  It is the Plaintiff’s contention that there was “no criminal conviction since contempt of Court is legally civil matter”.

5.  At the call‑over hearing before Master H Au‑Yeung on 14 December 2012, orders were made directing the parties to file further evidence in respect of the strike out summonses within the time stipulated, and the strike out summonses to be heard together.

6.  By letter dated 3 January 2013, the Defendant’s solicitors informed the Plaintiff that they intended to attend court on 10 January 2013 to fix a date for substantive hearing of D’s Strike Out Summons and P’s Strike Out Summons.

7.  The Plaintiff retorted by issuing a summons on 7 January 2013 seeking an order that the proceedings be stayed pending determination of the alleged perjury in D’s 1^st Affirmation, alternatively, that D’s 1^st Affirmation be struck out on the same ground (“P’s Stay Summons”).

8.  At the call‑over hearing on 11 January 2013, Master A Ho dismissed P’s Stay Summons with costs assessed at $800 and payable by the Plaintiff within 14 days.  This order is the subject matter of the Plaintiff’s appeal.

9.  On 8 March 2013, P’s Unless Order Summons was issued.

Appeal

10.  In respect of P’s Stay Summons, the Plaintiff alleged in P’s 2^nd Affirmation that the Defendant had in D’s 1^st Affirmation “falsely asserted that [the Plaintiff] had been criminally convicted and criminally sentenced to imprisonment which were totally false”.  Such false affirmation, said the Plaintiff, should be dealt with before further conduct of these proceedings.

11.  In dismissing P’s Stay Summons, Master A Ho held that there was no evidence to show that D’s 1^st Affirmation is false or that the Defendant had committed perjury.  In any event, as D’s 1^st Affirmation was filed in connection with his strike out application, D’s 1^st Affirmation would be considered by the court when dealing with such strike out application.  It was not a ground to strike out or to seek a stay of this action.

12.  In this appeal, the Plaintiff further contends that:

(1)     The order made by Master A Ho is “unlawful” as the Defendant has not filed any affirmation in reply to P’s Stay Summons which, it is said, is required in all adversarial proceedings.  The Plaintiff asserts that this is “contrary to Common law under Article 8 of the Basic Law”.

(2)     In the various Judgments of the court in HCMP 4694/2003 and HCMP 1313/2010 exhibited to D’s 1^st Affirmation, which are Judgments relating to the previous contempt proceedings brought by the Secretary for Justice against the Plaintiff, there were “no words, conviction and sentence”.  As the Court of Appeal held in HCMP 2665/2012, 8 February 2013, the Plaintiff had been “committed to prison for a period of 4 months and was not sentenced to prison”.

13.  In my view, the grounds relied upon by the Plaintiff are wholly devoid of merit.

14.  First, it is clear that the Defendant did not in D’s 1^st Affirmation said that the Plaintiff “had been criminally convicted and criminally sentenced to imprisonment” as the Plaintiff alleged.  Instead, the Defendant said “[t]he Plaintiff had been sentenced to prison twice for contempt of court.  He was sentenced to 6‑month imprisonment on 7 December 20005 and 4‑month imprisonment on 11 February 2011” and exhibited the Judgments of the court in HCMP 4694/2003 and HCMP 1313/2010.  As the Defendant has never said what the Plaintiff alleged to have been said, I am unable to see how the Plaintiff can assert that the Defendant has given false evidence in D’1^st Affirmation.

15.  Moreover, there is no falsity in the Defendant’s statement, in light of the following matters:

(a)     In the Judgment in HCMP 4694/2003, 25 October 2005, at paras 40‑41, it was held that the contempt proceedings against the Plaintiff “is an offence of a quasi criminal nature involving the liberty of the subject”, and was brought “to prevent undue interference with the administration of justice”.

(b)     In fact, the Plaintiff himself contended that the contempt of which he stood accused was a criminal contempt.  This can be seen from the Ruling as to Penalty in HCMP 4694/2003, 7 December 2005 at para 9.

(c)     As can be seen from the Ruling as to Penalty in HCMP 4694/2003 and the Judgment on Penalty in HCMP 1313/2010, the Plaintiff was in fact committed to prison for contempt on 7 December 2005 and 11 February 2011 for 6 months and 4 months respectively.

16.  Although the Defendant used the word “sentenced” instead of “committed” in D’s 1^st Affirmation, it does not make his statement to become false.

17.  In any event, as the Learned Master observed in his Decision, the Plaintiff may at the substantive hearing of D’s Strike Out Summons and P’s Strike Out Summons make submission on the Defendant’s statement including the use of the word “sentenced”.

18.  For the above reasons, the Plaintiff’s appeal must be dismissed.

P’s Unless Order Summons

19.  The Plaintiff contends that the court should make an unless order to compel the Defendant to file an affirmation in reply to P’s 1^st Affirmation and P’s 2^nd Affirmation failing which D’s Strike Out Summons should be dismissed with costs.

20.  At the hearing, the Plaintiff submits that:

(1)     The orders made by Master H Au‑Yeung “are unlawful due to uncertainty with more than one mode of direction by inventing the second mode of direction for if any to allow the Defendant not to reply to the affirmation of the Plaintiff”.  It is said that Master H Au‑Yeung should have given direction on D’s 1^st Affirmation which, the Plaintiff said, is false.

(2)     The orders of Master H Au‑Yeung are “judicial fraud” as they both stated that the court had read an Affirmation of Wong Sze Shing filed on 12 December 2012 and the Affirmation of Poon Ming Hang filed on 3 December 2012 when neither affirmations were ever provided by the Defendant’s solicitors to him.

21.  The application is wholly misconceived.

22.  There was nothing wrong for Master H Au‑Yeung to order the Defendant to file affirmation in reply to P’s 1^st Affirmation and P’s 2^nd Affirmation, if any.  The effect of the orders is to give liberty to the Defendant to file an affirmation in reply within the time stated in the order, should he wish to do so.  It is a matter for the Defendant whether he wants to file any affirmation in reply to P’s affirmations.  If, as it turned out to be the case, the Defendant did not file any affirmation within the time stipulated in the orders, he would have no right to file any further affirmation to deal with the matters set out in P’s 1^st and 2^nd Affirmations unless he obtained leave of the court to do so.

23.  As for the two affirmations recited in the orders of Master H Au‑Yeung, I am told by the Defendant’s counsel that they are affirmations of service and there is no requirement that such affirmations should be served on the Plaintiff.  Having read the two affirmations, I am satisfied that they are affirmations of service, as both affirmations only contained facts relating to the service of the documents filed by the Defendant’s solicitors with the court on the Plaintiff.  They have nothing to do with the merit or substance of any of the summonses issued by the Plaintiff or the Defendant.

24.  As the Defendant has elected not to file any affirmation in reply to P’s 1^st and 2^nd Affirmations within the time stipulated by the orders, which remains the Defendant’ position, there is simply no basis for the Plaintiff to ask the court to make an unless order to compel the Defendant to file any affirmation in reply to P’1^st and 2^nd Affirmations.

25.  P’s Unless Order Summons is dismissed.

Costs

26.  I make an order nisi that the Plaintiff is to pay the costs of and occasioned by the appeal and P’s Unless Order Summons to the Defendant.  The order will become absolute within 14 days from the date of this Decision.  I further direct the Defendant to lodge a statement of his costs within 7 days after the costs order has become absolute, and the Plaintiff to lodge a statement of his objections thereto, if any, within 7 days thereafter.