CHOY BING WING v. HONG KONG INSTITUTE OF ENGINEERS

CACV 275/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 275 OF 2015

(ON APPEAL FROM HCA NO. 309 OF 2015)

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J U D G M E N T

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Hon Kwan JA (giving the judgment of the court):

Introduction

1.  This is the appeal of the plaintiff, Choy Bing Wing (“Mr Choy”), against the decision of Au-Yeung J on 27 November 2015.  By that decision, the judge ordered Mr Choy’s claim against the Hong Kong Institution of Engineers[1] (“HKIE”) in HCA 309/2015 be struck out and the action be dismissed on the grounds that it discloses no reasonable cause of action, is frivolous or vexatious and is an abuse of the process of the court.  Pursuant to Order 14A of the Rules of the High Court, the judge also determined the following question (“the Question”) raised by HKIE in the affirmative:

“Whether the references to a person being ‘convicted of a criminal offence’ in [HKIE’s] Constitution and Disciplinary Regulations include the situation where a person was found guilty of criminal contempt of court.”

2.  Article 13(4)(d) of the Constitution of HKIE provides that if a member shall be found by the Board of Inquiry to have been guilty of “improper conduct”, the Council may, among other things, order that his membership be suspended for any period.  “Improper conduct” is defined in Article 13(5)(c) to include “conviction by a competent tribunal of a criminal offence which in the opinion of the Council renders a member unfit to be a member.”

3.  Mr Choy, a member of HKIE, was found guilty of criminal contempt of court in HCMP 4694/2003 (by Hartmann J and Suffiad J on 25 October 2005) and HCMP 1313/2010 (by McMahon J and Macrae J on 7 January 2011).

4.  On 9 November 2012, the Board of Inquiry found Mr Choy to have been guilty of improper conduct by reason of the two committals for contempt.  On 17 January 2013, the Council ordered his membership be suspended for three years with effect from 18 January 2013.  Mr Choy then served on HKIE a notice of appeal against the suspension order on 21 January 2013.  That appeal is pending so the suspension order is not yet in force.

5.  On 5 February 2013, he issued the writ in this action (HCA 309/2015) against HKIE, seeking a declaration that the suspension order is null and void.

HCMP 4694/2003

6.  As mentioned earlier, Mr Choy was committed for criminal contempt of court by Hartmann J and Suffiad J ([2005] 4 HKC 416)[2].

7.  The Secretary for Justice brought these proceedings for contempt against Mr Choy in relation to his actions in April and May 2003 when he made scurrilous accusations of the most profound kind against Rogers VP, in an attempt, by scandalising the court, to secure the Vice President’s recusal from sitting on an appeal brought by a company for which Mr Choy obtained leave to represent.

8.  The court heard the notice of motion to commit for contempt in Mr Choy’s absence, having drawn the only reasonable inference that he had learned of the adjourned dates of hearing but chose to ignore that information.  Alternatively, it was apparent that he had taken active steps to avoid being served with the notice of the adjourned hearing or to learn of the dates of the adjourned hearing and deliberately placed himself beyond the reach of the court.

9.  The court found that the words in Mr Choy’s affirmation in support of his application seeking the disqualification of the Vice President and the tirade of abuse which he heaped upon the Vice President during the course of that application were examples of the most serious scandalising of the court in an attempt to achieve a specific, calculated result, which was to remove the Vice President from the hearing of the appeal.  The court was satisfied beyond reasonable doubt that the abuse and invective constituted a serious contempt of court, one which had the real risk and tendency to interfere with the due administration of justice in this territory.  Mr Choy was committed for contempt and sentenced to six months’ imprisonment.

HCMP 1313/2010

10.  The Secretary for Justice again brought proceedings to commit Mr Choy for contempt, in relation to serious scurrilous remarks and allegations he made against Registrar Au-Yeung[3]in 2009 in connection with two civil proceedings.  The vituperative and insulting statements were widely published by Mr Choy, having been copied to institutions and politicians in Hong Kong and internationally.

11.  McMahon J and Macrae J heard the application to commit for contempt in Mr Choy’s absence, having been satisfied that he had received ample and proper notice of the hearing but had deliberately chosen not to be present.  The court held that he had deliberately scandalised the court by his sustained and inexcusable vilification of a particular judicial officer.  By his sustained use of insulting and abusive language towards the Registrar, which he refused to withdraw when afforded the opportunity to do so in open court, as well as the scurrilous allegations against her in court documents, Mr Choy had undermined the authority and dignity of the Registrar so as to amount to a contemptuous scandalising of her court and seriously undermined the confidence of ordinary people and litigants in the due administration of justice.  He was committed for contempt and sentenced to four months’ imprisonment.

The decision of Au-Yeung J

12.  The judge first analysed the Question as it forms the core dispute.  Having considered the authorities cited, including Cobra Golf Inc & Anr v Rata & Ors [1998] Ch 109, Garvin v Domus Publishing Ltd [1989] Ch 335 at 345, Balogh v St Albans Crown Court [1975] 1 QB 73, Chiu Luen Public Light Bus Co Ltd v Persons Unlawfully Occupying or Remaining on Public Highway & Ors [2014] 6 HKC 298 at §§123 and 124 and General Medical Council v Spackman [1943] AC 627, the judge came to the view that criminal contempt is an offence punishable at common law.  Indeed, that was Mr Choy’s contention in HCMP 4694/2003 when he sought to challenge the jurisdiction of the court, arguing that he could only be tried in a criminal court on indictment in respect of a criminal contempt, not by way of committal proceedings pursuant to Order 52 of the Rules of the High Court.  Hartmann and Suffiad JJ agreed with him that the contempt of which he stood accused was a criminal contempt, but held it was open to the Secretary for Justice to proceed under Order 52 instead of by way of a criminal indictment[4].

13.  Applying the relevant principles, Au-Yeung J held there can be no doubt that Mr Choy had been convicted twice of a criminal offence of contempt of court.  The absence of the word “sentence” in the judgments in HCMP 4694/2003 and HCMP 1313/2010 is irrelevant, as it is undeniable that Mr Choy had been sentenced to imprisonment twice and he had served those sentences.  The reference to a person “being convicted of a criminal offence” in the Constitution of HKIE includes the situation where a person is found guilty of contempt of court.

14.  The judge then analysed Mr Choy’s pleaded case and concluded it is plainly unarguable and is frivolous or vexatious and an abuse of process of the court.  There cannot be any doubt that he had been convicted of a criminal offence and hence was guilty of “improper conduct” within the meaning of Articles 13(4)(d) and (5)(c).  She answered the Question in the affirmative and ordered the statement of claim to be struck out and the action dismissed.

15.  Mr Choy filed a notice of appeal against this decision on 18 December 2015, seeking an order that the judge’s order be set aside in its entirety and his appeal be allowed, and that his claim against HKIE be restored and allowed to proceed to trial.

16.  On 5 May 2016, Kwan JA granted permission to HKIE to be excused from attendance in the appeal, with leave to serve a skeleton submission 7 days before the hearing.

Two preliminary matters

17.  We will first deal with two matters brought up by Mr Choy before we deal with his appeal.

18.  First, he has applied earlier for the tape recording of the hearing before Au-Yeung J on 18 November 2015 be played in court at the hearing of the appeal.  On 5 May 2016, Kwan JA made a direction that this application be dealt with at the appeal.  The reason for Mr Choy’s application is that he claimed the tape recording of the hearing released to him had been “criminally edited” for the appeal with a “manipulated transcript”[5].  He found the transcript “manipulated” in that on page 15 when he read out the law being authority number 4 on his list at page 136 of the case, the transcript read as follows:

“It’s a proceeding for contempt of court, a criminal offence, public law, question mark. So that’s so far as I can see … (indistinct) statement. There is only one answer, namely that -- it’s not only one answer, it’s not. Of course it is perfectly true that the standard of proof required in such a proceeding is the criminal standard of proof.”

19.  Mr Choy claimed the law read out by him but did not appear in the transcript is[6]:

“the law declared originally by Lord Atkin in Ambard v Attorney General for Trinidad and Tobago [1936] AC 332 [sic][7] that contempt cases were not criminal cases i.e. civil cause or matter the said law as determined and as affirmed in FAMV 33/2008[8] by the Appeal Committee of Court of Final Appeal composed of Andrew Li CJCFA (the name angelli manipulated in the purported transcript), Bokhary/Chan PJJCFA in its quashing of the error of law that contempt cases had been determined as criminal cases by the CA in CACV 244/2004[9] and in CACV 11/2004[10] the said case referred to in CACV 244/2004. The said error of law committed in CACV 11/2004 led to the same error of law committed again in HCA 309/2015 and the concealment of the law to prevent restitution by the release of manipulated transcript, page 15 in particular of the manipulation, …”

20.  Case number 4 read out by Mr Choy as appeared from the transcript with the relevant page 136 would appear to be Cobra Golf Inc.  At 136C, Rimer J quoted from a passage in Garvin v Domus Publishing Ltd at 345C to D, in which Walton J said this:

“Is a proceeding for contempt of court a criminal offence? To that, so far as I can see, there is only one answer, namely, that it is not. Of course it is perfectly true that the standard of proof required in such a proceeding is the criminal standard of proof.”

21.  That was the passage Mr Choy was reading out to Au-Yeung J and as part of his words was indistinct, as noted in the transcript, it was not transcribed accurately and completely.  But the judge fully understood his submission, and referred to it in her decision at §22, giving the page numbers of the relevant cases he mentioned.

22.  His allegation that the transcript was “manipulated” and “doctored” is simply far- fetched.  He was making a submission on the law.  Even if the transcript did not give a reasonably complete and intelligible version of his oral submission before the judge (which we do not think is the case), Mr Choy would not be prohibited from making his submission on the law when he came to argue his appeal, or to rely on the additional authorities he mentioned in his subsequent letters to the court.  Indeed, that was the reply in the letter of the clerk of Lam VP to him dated 26 April 2016.

23.  In the exercise of our discretion, we refuse his application to play the tape recording of the hearing before Au-Yeung J in the appeal.

24.  The other matter raised by him is this.

25.  On 1 September 2016, Mr Choy lodged in court, without the leave of the court, an additional bundle marked “Appeal Bundle C (Criminal) under rule 59 Cap 221A and Article 11 of Cap 383”.  It should be noted that on 14 June 2016, Barma JA and Poon JA made a restricted application order against Mr Choy in the proceedings in this appeal[11], to prevent him from making unwarranted applications repeatedly in these proceedings.

26.  Included in this new bundle is a letter of Mr Choy to the Registrar of the High Court dated 21 July 2016, in which he enclosed copies of 11 forms (prescribed form No XXVII in the Criminal Procedure Ordinance, Cap 221, being “Appellant’s Application for further Witnesses”).  The forms as completed and signed by Mr Choy were addressed to the four judges who had committed him for contempt in HCMP 4694/03 and HCMP 1313/2010, the senior counsel who appeared for the Secretary for Justice in those proceedings, and the police officers involved in his arrest in the execution of the warrants and had attempted to obtain finger and palm prints from him while in custody.  Mr Choy asserted in his letter that the 11 persons should be called as witnesses to give evidence in this appeal, and as the forms are “mandatory” and “prescribed for criminal appeals against the criminal offence affirmed”, the Court of Appeal has no discretionary power not to call the witnesses.

27.  On 1 September 2016, Mr Choy served his skeleton submission in this appeal with a list of authorities.  In his submission, he stated that his appeal is “against the criminal offence for contempts, the contempts condemned in his absences in HCMP 4694/2003 and in HCMP 1313/2016 [sic]” and that the witnesses are called to be cross-examined by him on these matters: “the contempts prosecuted/adjudicated for want of jurisdiction”, “the accused condemned in his absences”, “the fabrication and issuance of counterfeit arrest warrants” and “the assaults/detentions of the accused for want of authorities”.  He claimed that Au-Yeung J failed to inquire into the facts and he shall make his closing submission of the appeal against the criminal offence ruled by the judge after his cross-examination of all the witnesses listed in his new bundle. In his letter to this court dated 12 September 2016, he asserted that the hearing of the appeal may not proceed as his right to cross-examine witnesses under the Bill of Rights has been violated.

28.  Insofar as Mr Choy is seeking the permission of this court to call the witnesses he proposed in the hearing of the appeal, we reject his application without hesitation in the exercise of our discretion.  Contrary to his submission, this appeal is not against the orders made in HCMP 4694/2003 and in HCMP 1313/2010 by which he was committed for criminal contempt, or the warrants issued by the courts in those proceedings and executed by the police officers.  He had sought to challenge the jurisdiction of the court in committing him for contempt and the warrants issued when he was brought before the court in the course of the two contempt proceedings.  The courts had ruled against him on all his challenges[12].  There was no appeal on those rulings and it is completely out of order to seek to raise them in the present appeal without leave and well out of time.  Mr Choy is not allowed to re-open these matters by seeking to cross-examine the witnesses he proposed.

This appeal

29.  At the start of this hearing, Mr Choy handed to the court a bundle of papers[13] and left the court without a word.  We decided to deal with his appeal in his absence, on the basis of the written submissions we received from both parties.

30.  The skeleton submission of Mr Choy only sought to challenge the two orders committing him for contempt for want of jurisdiction and the warrants issued by the courts.  These matters are outside the proper scope of this appeal and it is unnecessary to say anything further.

31.  The grounds of appeal stated in the Notice of Appeal are in very general terms and read as follows:

“1. The Learned Judge erred in answering the said Question with a “Yes” by failing to have a proper regard to the law submitted by reading out as instructed so by the Judge in front of her from the legal authorities a definite and unequivocal “No” to the same question.

2. The learned judge failed to have a proper regard to the matters settled by the Court of Appeal.

3. The learned Judges failed to uphold the Basic Law under Article 104 for the Violations raised in particular under Articles 19 and 87 of the Basic Law.”

32.  Insofar as ground 1 is a complaint that the judge had erred by failing to have regard to the law submitted by Mr Choy, we do not think the judge is in error in her analysis and discussion of the cases she mentioned in §§20 to 24, 29 to 42 of her decision.  It is not necessary to repeat the judge’s analysis, which we agree with.

33.  In ground 2, Mr Choy complained that the judge failed to have proper regard to the matters settled by the Court of Appeal.  He has not particularised what those matters are.  Among the cases cited in his list of authorities dated 1 September 2016 is the case of Secretary for Justice v Law Wai Yan, CACV 69 to 75, 77 to 89, 125 to 131, 133 to 135/2016, 1 August 2016, in which Lam VP gave the judgment of the court (Cheung CJHC, Yeung VP and Lam VP).  The judgment under appeal was the dismissal of the respondents’ applications to strike out the applications by the Secretary for Justice for committal based on allegations of criminal contempt.  One of the questions the appeal court was concerned with was whether the appeals brought by the respondents are civil or criminal appeals and if they are criminal appeals what procedural rules are applicable.

34.  Lam VP held that the appeals are properly characterised as civil appeals.  He adopted the approach in Re Kennedy (No 3), a case relied on strongly by Mr Choy in his letter to the court in February 2016 as mentioned earlier and which is binding on the Court of Appeal.  The Appeal Committee in Re Kennedy (No 3) was considering whether leave to appeal should be determined as an appeal in a criminal cause or an appeal in a civil cause or matter.  Bokhary PJ held in §7 that regard should be given to the underlying matter involved.  So notwithstanding the motion was to commit for criminal contempt, as the underlying matter concerned winding-up proceedings, it was a civil cause or matter.  Following that approach Lam VP had regard to the underlying matter leading to the contempt proceedings before the court, and as they stemmed from the execution of injunction orders granted in civil proceedings, they remain civil causes or matters notwithstanding they are proceedings for criminal contempt.  He held that the committal proceedings “should be regarded as civil in terms of its procedural character for the reasons explained in the Australian authorities cited above” (emphasis supplied), see §§26, 27, 33 and 34.

35.  The Australian authorities referred to by Lam VP are pertinent to the present discussion and we quote from §§14 to 16 of his judgment:

“14. In this connection, Mr Yu SC also referred to some Australian authorities highlighting that from a procedural point of view committal proceedings for criminal contempt has a civil character. In Hinch v AG (1987) 75 ALR 502, the High Court of Australia had this to say:

“Notwithstanding that a contempt may be described as a criminal offence, the proceedings do not attract the criminal jurisdiction of the court to which the application is made.  On the contrary, they proceed in the civil jurisdiction and attract the rules that ordinarily applied in that jurisdiction …”

15. In Construction, Forestry, Mining and Energy Union v Boral Resources (2015) 320 ALR 448 at [65], Nettle J held in the High Court of Australia that committal proceeding for criminal contempt is not criminal proceeding.

16. The dual character of criminal contempt was explained by Buss JA in Allbeury v Corruption and Crime Commission (2012) 42 WAR 425 at [182]:

“Although the substantive character of criminal contempt proceedings is essentially criminal, the procedural character of the proceedings is civil rather than criminal.” ”

36.  We are here concerned with the substantive character of the two instances of criminal contempt, rather than the procedural character.  The acts complained of that formed the basis of the criminal contempt in both instances amounted to scandalising the court with the real risk and tendency to interfere with the due administration of justice.  The proceedings to commit Mr Choy for contempt were brought by the Secretary for Justice acting as the guardian of the public interest in ensuring the protection of the due administration of justice.

37.  In Cobra Golf Inc at 137C to F, Rimer J expressed “no doubt that contempts which are properly classified as ‘criminal contempts’ are criminal offences” and quoted from these works in support:

“Oswald on Contempt, Committal and Attachment, 3rd ed. (1910), p. 8, after saying that criminal contempts are misdemeanours at common law, asserts:

“If, on the other hand, the contempt is mere disobedience to an order of the court in a civil action it is not criminal, and in such a case the punishment is only ordered for the purpose of enforcing the order in the civil action ... or, in the case of a corporation by sequestration.”

Similarly, Sir John Fox said in his introduction to Contempt of Court (1927):

“Civil, distinguished from criminal, contempt is a wrong for which the law awards reparation to the injured party; though nominally a contempt of court, it is in fact a wrong of a private nature as between subject and subject, and the King is not a party to the proceedings to punish it. The punishment is a form of execution for enforcing the right of a suitor.”

Borrie & Lowe, The Law of Contempt, 3rd ed. (1996)[14], p. 662, asserts:

“A further distinction [between criminal and civil contempts], which might prove of relevance in a novel case, is that criminal contempt is, for all its peculiarities, a crime, whereas a civil contempt despite its criminal characteristics is not.” ”

38.  To the above, I would add this passage from Arlidge, Eady & Smith on Contempt, 4^th ed (2011) at §3-55 which appears under the heading of “Criminal contempt and the general criminal law framework”:

“There is no doubt that contempt of court is in some of its manifestations appropriately described as criminal because of the threat which is implied to the administration of justice. The purpose the law serves in this context, as with other criminal offences, is to protect a public interest, and to punish its violation. Yet the law of criminal contempt has certain procedural attributes which appear to distinguish it from other forms of criminal offence. These primarily relate to the summary nature of the procedure, which was evolved at common law and subsequently refined by rules of court.”

39.  For the purpose of ascertaining whether the criminal contempt found by the court in HCMP 4694/2003 and HCMP 1313/2010 would amount to “conviction by a competent tribunal of a criminal offence” in Article 13(4)(d) of HKIE’s constitution, we are concerned with the substantive character of the criminal contempt, not its procedural character.  Hence, the present case is distinguishable from Re Kennedy (No 3) and Secretary for Justice v Law Wai Yan and these authorities do not govern the present situation.

40.  In ground 3, Mr Choy alleged that the judge failed to uphold Article 104 of the Basic Law in relation to the violations under Articles 19 and 87 of the Basic Law.  He failed to particularize or make good this allegation.  He has made similar complaints of violations of the Basic Law which the judge dismissed as irrelevant in §49 of her decision.

41.  We dismiss his appeal as none of the grounds of appeal are of merit.  As costs should follow the event, we make an order nisi that Mr Choy should pay the costs of HKIE in this appeal.

42.  HKIE has submitted a statement of costs for summary assessment.  Since Au-Yeung J has assessed the costs awarded on a summary basis, we will do likewise.  The costs allowed by her came up to $150,000.  The total costs claimed in this appeal amounted to $109,870.  We find this excessive and reduce it to $64,870 on account of excessive time and unnecessary duplication of work.

43.  Any party who seeks to vary the costs order nisi or the gross sum assessment must apply in writing within 14 days of the handing down of this judgment, setting out the grounds of the application.