LI XIAO YI v. TANG CHUNG WAH (also known as ALAN CHUNG WAH TANG)

HCMP 406/2025

[2026] HKCFI 5202

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 406 OF 2025

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D E C I S I O N

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Introduction

1.  On 29 July 2026, I found that Alan Tang Chung Wah (“Mr Tang”) had been in contempt of court in respect of five Counts (“Counts”) relied on by the Plaintiff, Dr Li Xiao Yi (“Dr Li”).  I adjourned the hearing on penalty until 31 August 2026.  My judgment dated 29 July 2026 (“July 2026 Judgement”) comprehensively sets out the background to Dr Li’s complaints and the Counts themselves, and I do not repeat them here.  I adopt the abbreviations used in my earlier judgments.

2.  On 31 August 2026, I heard the Parties’ submissions in respect of the penalty to be imposed.  I subsequently ordered that Mr Tang be sentenced to four months in custody (“Order”).  At the hearing, Mr Tang indicated his intention through counsel to apply for a stay pending his appeal of the July 2026 Judgement.  I thus granted a temporary stay pending his application, which I fixed to be heard today, 8 September 2026.

3.  Prior to today’s hearing, Mr Tang indicated in correspondence that (a) he would be representing himself at the hearing; (b) he would no longer be making submissions in respect of a stay pending appeal; and (c) he instead intended to apply for bail pending appeal.

4.  Mr Tang has not filed any summonses.  Given the contents of Mr Tang’s letters of 4 September 2026 and the absence of a summons for a relevant order, the discussion below is moot; however, for completeness, these would be my reasons for proceeding to order Mr Tang’s immediate committal to prison, should a properly formulated application have been made.

Court’s power to grant a stay and/or bail pending appeal

5.  There is authority to the effect that the Court of First Instance does not have the power to grant bail pending appeal.  Chu J (as she then was) in Secretary for Justice v Yuen Oi Yee Lisa[1], held that this Court can only suspend an order for committal under Order 52 rule 7 of the Rules of the High Court (Cap. 4A).  It is solely the Court of Appeal that has the power to grant bail pending appeal in contempt proceedings: section 50(3) of the High Court Ordinance (Cap. 4) and Order 59 rule 20(2) of the Rules of the High Court.  This view was supported by H Au-Yeung J in High Fashion New Media Corp Ltd v Leong Ma Li[2].

6.  It follows that in order to avoid an immediate committal to prison Mr Tang would have to obtain a stay of my Order.  I will proceed to deal with Mr Tang’s application as if it were an application for a stay.

Merits of Mr Tang’s application

7.  Even assuming that this court had the relevant powers, I would refuse Mr Tang’s application.

8.  The applicable principles in considering the merits of a stay application were explained by H Au-Yeung J in High Fashion v Leong[3]:

(1)  The imposition of a short sentence in itself, as well as the possibility that the appeal could be rendered nugatory, does not automatically entitle the defendant to a stay of execution of the committal order, or an order to that effect (at [9]);

(2)  The existence of an arguable appeal (meaning one with reasonable prospect of success) is the minimum requirement before a court can even consider granting a stay in civil proceedings.  However, given that the execution of orders in civil proceedings does not contemplate restraining the liberty of a person, the approach in civil proceedings may not be applicable to a stay of execution of a committal order (at [10]);

(3)  As such, it would be apt to consider the approach adopted in criminal cases in which the accused is sentenced to a short term of imprisonment (at [11]);

(4)  Even so, the approach adopted in criminal cases is similar to that in civil cases—the minimum requirement being that of an arguable appeal (at [16]).

9.  The criminal approach was discussed in detail by Zervos JA in HKSAR v Chow Yuen-Kong[4] at [6]–[8]:

“6. It is well settled that there is no right to be admitted to bail pending appeal after a person has been convicted and sentenced to a term of imprisonment.[5] That is fundamentally because a convicted person has lost the presumption of innocence.

7. It follows that to admit an appellant to bail pending appeal is only done in exceptional circumstances and clearly at the discretion of the court.[6] To this end, the court must exercise such discretion judicially and should grant bail pending appeal when it is just to do so.[7]

8. It is accepted that when deciding whether to grant bail pending appeal relevant considerations generally involve the strength of the grounds of appeal and the length of sentence served by the time the appeal is heard.  It can be granted where there is a reasonable prospect of success of the applicant’s appeal or where there is a risk that the sentence imposed on the applicant will have been served by the time the appeal is heard, subject to the applicant having a reasonably arguable case on appeal.” (emphasis added)

10.  In the later case HKSAR v Wong Wai Wah[8] Zervos JA says at [7]:

“7. Bail pending appeal is an exceptional remedy after conviction which may be granted where it appears that the appeal has a strong likelihood of success (the ‘merits ground’), or where there is a likelihood that all or a substantial part of the sentence would be served before the disposal of the appeal (the ‘time ground’)[9]. In considering the time ground, it must also be demonstrated that the appeal is at least reasonably arguable or promising.[10] In other words, the grounds of appeal are reasonably arguable in that they afford some real chance of success.[11]” (emphasis added)

11.  In civil proceedings, the principal criterion for granting a stay is that there are reasonably arguable grounds of appeal[12].  In addition, if an appeal will be rendered nugatory unless a stay is granted, this weighs in favour of a stay being granted.

12.  I accept that although the proposed appeal will not be rendered nugatory if a stay is refused, requiring Mr Tang to serve at least a period of the sentence before any appeal is determined is a detriment that would not be corrected by a subsequent setting aside of my decision, and this is a matter properly to be taken into account.  However, that consideration is only relevant if I am satisfied that Mr Tang has at least reasonably arguable grounds of appeal; although in practice given this case involves the liberty of the individual, I would incline to apply this test liberally and give Mr Tang the benefit of the doubt.  However, it seems to me for the reasons I will explain that each of the five Grounds of Appeal that were exhibited in Tang 5^th (“Grounds of Appeal”) are unsustainable.

13.  At the hearing on 31 August 2026, I was told that the Grounds of Appeal do not challenge any of the factual findings.

14.  Ground 1:

“1. The learned Judge was wrong as a matter of legal principle to find the Defendant/Appellant guilty of criminal contempt at common law based merely on his testimony and evidence which the learned Judge found as untruthful, that alone, without more, is not necessarily sufficient, and is not sufficient under the circumstances of this case, to constitute an obstruction of or interference with the judicial process: Coward v Stapleton (1953) 90 CLR 573, at 579; Jaginder Singh v A-G [1983] 1 MLJ 71.

2.  Albeit the Defendant/Appellant was not charged for perjury, and precisely since criminal contempt and perjury may be two different legal concepts or processes, the law of perjury fortifies the proposition that false evidence may not necessarily constitute contempt, and one must turn to look at the type and nature of falsity itself.”

15.  The two authorities referred to were not referred to me at the trial in May 2026.  Mr Tang would appear to be contending that, however clear it is from his own affirmation and testimony that he gave false evidence (and as I have noted the findings of fact are not challenged), that alone is not capable of itself of constituting contempt.  It is not clear precisely what the argument is and why Mr Tang’s false evidence was not sufficient in respect of each of the five Counts to support a finding of criminal contempt.  Ground 1 is unsustainable.

16.  Ground 2:

“3. Further or alternatively, the learned Judge was wrong to infer or to find the inference irresistible that the untruthful testimony or evidence of the Defendant/Appellant were made with an intention to interfere with the judicial process:-

(1) The inference fails to satisfy the requirements in Winnie Lo v HKSAR (2012) 15 HKCFAR 16, at §115;

(2) There is no direct evidence on the Defendant/Appellant's state of mind or finding of direct primary fact(s) upon which an inference can be drawn either way as to the reason for the untruthful testimony or evidence;

(3) It was not put to the Defendant/Appellant at trial that his intention for the testimony or evidence, which was found to be untruthful, was to interfere with the judicial process, or that the Defendant/Appellant was not given the opportunity or appropriate opportunity to explain why he gave that testimony or evidence which was found to be untruthful;

(4) The inference drawn by the learned Judge was based primarily on the indirect facts that the Defendant/Appellant was an experienced liquidator and his unexplained failure to peruse 350 boxes of documents, which facts, standing on their own by themselves, do not necessarily lead to the inference found;

(5) The inference drawn by the learned Judge was not irresistible in that the untruthful testimony or evidence could equally be, for instance, to exculpate the Defendant/Appellant himself from personal liability for disciplinary action(s) as a liquidator;

(6)  Or that the Defendant/Appellant had been under the apparent influence of his legal advisers such as to honestly believe that the testimony or answers given would not have constituted a contempt of the Court or the judicial process.”

17.  Winnie Lo v HKSAR was not referred to at the trial.

18.  As explained in [16] and [17] of the July 2026 Judgment, to establish intent, it is necessary to prove Mr Tang had (1) no honest belief in the truth of the relevant statement; and (2) knew of its likelihood to interfere with the administration of justice.

19.  Mr Tang is not challenging any of the findings of fact; for example, he is not challenging my conclusion that [8] of Tang 6^th was untrue and he knew it.  In cross-examination in the present proceedings Mr Tang accepted that he knew the court would rely on his evidence in the Action[13]. This was specifically put to him in respect of each of the five Counts and on each occasion he agreed.  Plainly the evidence given by Mr Tang, which is the subject of each of the five Counts of contempt, was intended to be relied on by the court.  Giving false evidence to a court knowing that the evidence will be taken into account by the court satisfies the criteria referred to in the earlier paragraph.

20.  It is not correct that Mr Tang was not given the opportunity to explain why he gave the evidence found to be untrue.  It was entirely a matter for him what evidence to give.  He could have given this evidence in an affirmation, in answer to the question referred to in the previous paragraph or in evidence in reply.  He chose not to address the matters of which he now complains.  For example, Mr Tang gave no evidence nor made any submission consistent with Ground 2(5) or (6).

21.  Ground 2 is unsustainable.

22.  Ground 3:

“4. Even on the notion that the Defendant/Appellant was triable for a charge of contempt, the learned Judge failed to apply or properly apply the criminal standard of proof when He, at §63 of the Judgment, apparently and wrongly found the Defendant/Appellant to be more likely than not to have lied than to consider that the testimony or evidence had been a result of mistake, misunderstanding, imperfect memory or imprecise wording.

5.  Further or alternatively, the learned Judge was also wrong to place reliance on the failure of the Defendant/Appellant to ‘call any of his staff or produce any new documents’, or otherwise produce supporting evidence, to disprove the falsity of the testimony or evidence in question, when the burden of proving contempt rested on the Plaintiff, and so any benefit of doubt must go in favour of the Defendant/Appellant.”

23.  This Ground is misconceived.  The contention in the first paragraph refers not to the court’s analysis of the evidence and reasoning leading to the conclusion that Mr Tang had knowingly or recklessly lied, but a general and unparticularised submission made by Mr Tang.

24.  The contention in the second paragraph refers to the absence of evidence, which might be exculpatory.  The court did not reason that because of the absence of such evidence the five Counts had been proved.  It is clear from the July 2026 Judgment that the court found based on the evidence adduced to it that Mr Tang’s evidence was false.

25.  Ground 3 is unsustainable.

26.  Ground 4:

“6. On considering whether the Appellant had genuinely held an honest belief in his testimony or evidence, which was found to be untruthful, the learned Judge was wrong to adopt the objective test alone, or to base His reasons primarily on reasonableness, without asking also subjectively whether the Defendant/Appellant might have held that belief, when the learned Judge rejected the same as being inherently improbable.”

27.  As Mr Tang is not challenging the factual findings this Ground makes no sense.  It also overlooks that in the case, for example, of Count 1, Mr Tang has never suggested that [8] of Tang 6^th was correct.

28.  Ground 5:

“7. On finding contempt, the learned Judge was also wrong to accept that deliberate falsehood by itself was sufficient without considering whether each of the 5 counts of falsehood, deliberate or not, had materially interfered with the administration of justice under the circumstances of this case. The proper analysis is that the testimony or evidence, even though untruthful, had no material effect under the circumstances of this case on the merits of the original claims. It follows from this that the Defendant/Appellant would not have had the requisite intention to commit contempt of the Court.”

29.  This Ground appears to contend that dishonest evidence does not constitute contempt unless it impacts materially on a decision made by the court.  In other words, Mr Tang contends that even if (A) he gave false evidence that (B) he intended the court to rely upon it, there will not be any contempt if as matters transpire the false evidence does not materially affect the court’s reasoning.  I would have thought it self-evident that this is non-sense.  Plainly, a witness who gives false evidence intending that the court rely on it behaves in a way which adversely affects the proper administration of justice.

Disposition

30.  Mr Tang has not established that he has reasonably arguable grounds of appeal.  In my view, all Grounds of Appeals are clearly unsustainable.  I would have dismissed any application for a stay of the custodial sentence pending the appeal had a properly formulated application been made and decline Mr Tang’s application for bail pending the appeal. I order that Mr Tang pays the Plaintiff the costs of the bail application on an indemnity basis with a certificate for counsel.