SECRETARY FOR JUSTICE v. CHOY BING WING

HCMP4694/2003

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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D E C I S I O N

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1. By a Notice of Motion dated 10 November 2003 ("the Contempt Notice of Motion"), the Secretary for Justice (the Applicant), with leave obtained from Hartmann J, seeks an order that the Respondent be committed for contempt of court (or for such other orders as the court deems just). The basis for the Motion is that the Respondent has made serious and scurrilous allegations of impropriety against the Honourable Mr Justice Rogers VP during the proceedings in CACV Nos. 303, 306 and 414 of 2002. The relevant allegations of fact supporting the above charges are contained in the Statement served pursuant to RHC O.52, r.2(2).

2. In short, the Applicant alleges that in the various appeals referred to earlier, the Respondent has, in documents filed into court and also in the face of the court, asserted that the Vice President was dishonest, biased, had cheated and fabricated evidence, and was a disgrace. There are other terms used by the Respondent. These serious and powerful accusations made by the Respondent were published in local newspapers and magazines.

3. In support of the Notice of Motion, the Applicant has filed and served an affirmation of Mr Wong Kin Man (a Senior Government Counsel at the Department of Justice) dealing with these allegations.

4. On 10 December 2003, I made various directions in relation to the hearing of the Notice of Motion, including the affidavit evidence to be filed by both the Applicant and the Respondent. I also directed that the Contempt Notice of Motion was to be heard by the Court of First Instance rather than the Court of Appeal (which was the court named in the original Notice of Motion to hear the application) and that the hearing would take place on 17 February 2004. The Respondent was not present at this hearing but was served with the Order.

5. On 12 December 2003, the Respondent applied by Notice of Motion to strike out the Contempt Notice of Motion ("the Striking Out Notice of Motion"). It refers to the four grounds set out in O.18, r.19. The Striking Out Notice of Motion was supported by the Respondent's affirmation. There are before me in relation to this Notice of Motion two affirmations from the Respondent and one in reply from the Applicant.

6. In the Respondent's evidence and in his submissions, both oral and written, it would appear that the grounds for seeking an order that the Contempt Notice of Motion be struck out are essentially as follows:-

(1) In bringing the present contempt proceedings against him, the Applicant has failed to disclose material facts. These include the allegation that his assertions against Mr Justice Rogers VP are in fact true. He has, in his affirmation, written submissions and his oral submissions, gone into considerable detail. Other material facts omitted include his correspondence with the Department of Justice and others prior to the taking out of the Contempt Notice of Motion.

(2) It was improper for the Applicant to have brought contempt proceedings against the Respondent. As it involved the court, proceedings should and could only have been commenced by the court. The Respondent seems to go further: any contempt proceedings can only be heard by Mr Justice Rogers VP himself. In any event, he says, it is significant that Mr Justice Rogers VP has not been asked for an explanation as to why the court did not seek to commit him of its own motion.

(3) The evidence in support of the Contempt Notice of Motion was hearsay.

(4) The Respondent was merely exercising his constitutional right of free speech. In any event, he was protected by the absolute privilege accorded to counsel in judicial proceedings.

(5) Although the Applicant had appeared to invite the Respondent in correspondence to express his point of view, she had effectively pre-determined her decision to charge him with contempt.

(6) The Respondent has not been properly served in the present proceedings. He was only served by the bailiff and not by a representative of the Applicant.

7. Today, the Respondent has made the following submissions in addition to the above points:-

(1) He had an honest belief in the accusations levelled against the Vice President. This, according to him, was an absolute defence.

(2) Further to his arguments on hearsay, the Respondent says that there is no affidavit evidence from the judge himself and there ought to be.

(3) Reference was made to In re Lonrho [1990] 2 AC 154 for the proposition that if direct action is taken by a litigant to secure the substance of a remedy he was seeking in judicial proceedings, this cannot amount to contempt:- see page 212E - 213A (at paragraph 8.4). The Respondent referred to his application to have Mr Justice Rogers VP disqualified as being such "direct action".

(4) It was also submitted that it was a defence to what otherwise may be a contempt if a prior warning to the Respondent had not been given to the effect that what he might say could be a contempt of court. In this context, the Respondent referred to Munster v Lamb (1883) 11 QBD 538 and WS Edwards v KM Almao [1957] HKLR 269. The Respondent's point seems to be that if a warning had been given to him prior to his saying what he did, he may not have done so.

8. I am unable to accept the Respondent's submissions in respect of his application to strike out:-

(1) There has been no material non-disclosure in the present case. The purported justification of the allegations made against Mr Justice Rogers VP is a matter for the substantive hearing. As for the exclusion of correspondence between the Applicant and the Respondent and the Respondent and others, I have read them but have found the matters dealt with in them of doubtful materiality at best. Even if there is any material non-disclosure, I would not have found it of any weight sufficient to set aside the ex parte leave granted by Hartmann J (which I might add is not the Respondent's application in any event), much less strike out the Contempt Notice of Motion.

(2) Contempt proceedings can be instituted by the Applicant even though it involves a contempt of court. In many ways, it is always preferable for the Secretary for Justice to bring any charges rather than for the court to do so. Apart from any other consideration, fairness to the person charged means that another body should be given the responsibility of objectively deciding whether or not to prosecute in the first place. For a judge to hear an application in relation to a contempt committed before him or involving him, might give rise to an impression he was being a judge in his own cause. Mr McCoy SC referred me in his written submissions to HKSAR v Yau Petrus [1999] 3 HKC 51, a case dealing with an alleged contempt in the face of the court (there, the District Court). At page 56, Keith J said this:

"It is therefore only in exceptional circumstances for the court to consider contempt proceedings, and even then it may be more suitable to let the contempt proceedings be handled by the proper prosecuting authorities and be determined by a different tribunal."

(3) There is nothing in the hearsay point. Hearsay evidence is permitted in civil contempt applications:- see Hong Kong Civil Procedure 2004 at paragraph 52/6/3.

(4) As for the Respondent's reliance on the right of free speech and the right of absolute privilege, these are matters for the substantive hearing and ought not to be dealt with or resolved at this stage when all relevant facts are not before the court.

(5) Whether or not there was any pre-determination by the Applicant of the decision to charge the Respondent with contempt, this is not relevant, in my view, to the application to commit him for contempt.

(6) As for the Respondent's point that he was not properly served by reason of his having been served by the bailiff, section 38A of the High Court Ordinance, Cap.4, expressly permits this.

(7) As for the submissions based on honest belief, I would accept for present purposes that this may be a relevant matter but it is not an aspect on which I can reach any firm view at this stage and certainly not on the evidence that has been presented to me.

(8) I now turn to the submissions that there is no affidavit evidence from Mr Justice Rogers VP. Whether or not that will materially affect the Contempt Notice of Motion is a matter for the substantive hearing of that application, particularly bearing in mind the admissibility of hearsay evidence.

(9) The case of In re Lonrho doubted whether contempt proceedings could be brought in relation to "direct action" taken by a litigant to enforce rights. I note here that the Respondent's submission was that the various accusations he made against Mr Justice Rogers VP were in the course of applications to disqualify and that he had an honest belief in what he said. This and other matters can only properly be dealt with at the substantive hearing after an examination of all relevant facts that will emerge then.

(10) As to Munster v Lamb, again a proper consideration of any principle deriving from this case can only take place at the substantive hearing. I must, however, just say that I should not be taken to accept the principle of law submitted by the Respondent.

9. For the above reasons, I dismiss the Notice of Motion to strike out. It was really quite hopeless and it is far from plain and obvious that the Contempt Notice of Motion should be struck out.