RE CHU KONG

CACV 173/2017 &
CACV 174/2017

[2022] HKCA 191

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 173 OF 2017

(ON APPEAL FROM HCMP 2120/2016)

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AND

CIVIL APPEAL NO 174 OF 2017

(ON APPEAL FROM HCMP 3605/2016)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  By a judgment dated 25 July 2018, reasons for which were handed down on 27 October 2021, this court (Cheung JA, Yuen JA and Barma JA) allowed the appeal of Chu Kong (“the Plaintiff”) against the judgment of DHCJ Saunders (“the Judge”) and set aside the Judge’s orders dated 5 July 2017, by which the Judge:

(1)  set aside the ex parte leave granted to the Plaintiff by DHCJ Yee in HCMP 2120/2016 (on paper) on 20 December 2016 to bring contempt proceedings against Sun Min (“Sun”), Chang Dafa (“Chang”) and Pacific Bulk Shipping (Cayman) Limited (“Pacific Bulk”) (“the Defendants”). The Defendants were the putative 1^st, 3^rd and 4^th defendants in CACV 173/2017, and the 1^st 3^rd and 4^th defendants in CACV 174/2017). The alleged contempt arose out of fabricated evidence used in an application for an injunction in HCA 2562/2014, in which the Defendants were plaintiffs and the Plaintiff was a defendant; and

(2)  in consequence, dismissed the contempt proceedings (HCMP 3605/2016) brought by the Plaintiff pursuant to such leave.

2.  The effect of our judgment was to restore the Plaintiff’s leave to commence contempt proceedings, and allow the substantive contempt proceedings to continue against the Defendants.

3.  The facts and issues in the appeal, as well as the court’s reasons for allowing it, are set out in our judgment.[1] We will not repeat them here.

4.  The Defendants subsequently applied, by Notices of Motion filed on 23 November 2021 in each set of proceedings, for leave to appeal to the Court of Final Appeal. The grounds for appeal and questions of great general or public importance that have been identified are identical in each Notice of Motion. Both sides have filed written submissions, which we have considered. In accordance with our usual practice, we have determined the applications on paper.

5.  The Notices of Motion identify four questions which are said to be questions of great general or public importance, as follows:

(1)  Question 1:  Does the Secretary of Justice (“the SJ”) have the exclusive right to bring proceedings against an alleged contemnor in respect of criminal contempt?

(2)  Question 2:  If the answer to Question 1 is in the negative, then, if a private litigant seeks to commit another for criminal contempt under Order 52 of the Rules of the High Court (Cap 4A), is he or should he be required (in the absence of exceptional circumstances such as urgency) to consult the SJ before he can bring an application for leave to commit under Order 52 rule 2?

(3)  Question 3:  If the answer to Question 2 is in the affirmative, and assuming the SJ, having been so consulted, declines to bring proceedings in respect of the said criminal contempt, is the private litigant required to join the SJ as party, and/or lay relevant facts before the Court including any expressed views of the SJ, when bringing proceedings for criminal contempt under Order 52?

(4)  Question 4:  In the event that the answers(s) to any of the above questions is/are in the affirmative, should the leave granted to the Plaintiff to commence committal proceedings against the Defendants herein (by DHCJ Kent Yee on 20 December 2016) be set aside and these contempt proceedings be dismissed on the basis that they are procedurally defective, and/or that there had been material non-disclosure in respect of the Plaintiff’s failure to consult the SJ before commencing these proceedings and/or his failure to join the SJ to these proceedings?

6.  The Defendants also suggest that for the reasons set out in paragraph 13 of their Notices of Motion, leave to appeal to the Court of Final Appeal should be granted on the “or otherwise” ground.

7.  In this court’s judgment (at [39]), we held that the contempt proceedings before the Judge were civil proceedings in the procedural sense, but that the alleged contempt was to be regarded as criminal in nature.

8.  While we would be inclined to accept that Questions 1 to 3 may be regarded as raising points of great general and public importance, we do not consider that they are reasonably arguable on appeal to the Court of Final Appeal, for the reasons clearly explained at [36] to [45] of our judgment.

9.  In particular, in respect of Questions 1 and 2, as we observed in our judgment (at [40]), civil proceedings for contempt, which include both civil and criminal contempts committed in the context of civil proceedings, are subject to RHC Order 52, and the procedure thereunder does not require the involvement of the SJ in the proceedings.

10.  Regarding Question 3, as discussed in our judgment (at [42]), the existing procedure under Order 52 already provides an adequate vetting process for intended claims for contempt. There is consequently no need for the SJ to be joined in all civil proceedings for contempt which relate to criminal contempts.

11.  Question 4 is fact and context specific to the present case and follows on from the answers to Questions 1 to 3. In itself, it does not amount to a question of great general or public importance.

12.  For the foregoing reasons, we decline to grant leave to appeal to the Court of Final Appeal in respect of Questions 1 to 4.

13.  As for the “or otherwise” ground, in accordance with the usual practice of this court, this is a matter that should be left for the Court of Final Appeal to determine.

14.  We therefore dismiss the application for leave to appeal to the Court of Final Appeal.

15.  We also order that the Defendants are to pay the Plaintiff’s costs of this application, which we shall assess on a gross sum basis. Having considered the Plaintiff’s statement of costs, we are bound to say that we consider the costs incurred to be excessive, and in particular are of the view that the engagement of two senior counsel for the purpose of this application was unnecessary. We therefore assess the Plaintiff’s costs of this application on a gross sum basis in the amount of HK$600,000.00.