WONG YEUNG NG v. THE SECRETARY FOR JUSTICE

CACV 161/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 161 OF 1998

(ON APPEAL FROM HCMP NO. 407 OF 1998)

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J U D G M E N T

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Mortimer V-P (giving the judgment of the Court) :

1. This is an application by the respondent for either leave to appeal to the Court of Final Appeal if this matter were a civil one, or for the certification by the Court of a point of law of great and general importance involved in the decision if this contempt is a criminal cause or matter. The parties agree that this is in essence a criminal cause or matter. We agree and leave the matter there.

2. The first point which arises is a question under the Practice Directions for this kind of application. The Practice Directions provide:

"3. Applications for a certificate to the Court of Appeal or the Court of First Instance that the decision involves a point of law of great and general importance should be made immediately after the judgment is given from which the appeal is to be brought."

6. A failure to make the application in accordance with these directions may make it difficult or impossible for parties to comply with the time limit for applications for leave to appeal to the CFA."

This Court has said before - and it repeats - the importance of the provision that applications should be made for such a certificate immediately after the judgment is given. There are extreme good reasons for this. The court will then determine how the application is to be dealt with and will ensure that the application is dealt with in time for the parties to comply with time limits for application for leave to appeal to the Court of Final Appeal. Although in this case the respondent took out a summons on the same day that judgment was handed down, that does not comply with the direction. When the judgment is handed down, as in this case, counsel should attend and make the application, after informing the other party that they will attend. This case is unusual because although it is a criminal cause or matter, the decision was handed down rather than was given orally. The reasons were that the respondent was not present in court for the judgment. Nonetheless, we think in the circumstances that it is proper for us to hear the application.

3. The application is under s.32(2) of the Hong Kong Court of Final Appeal Ordinance. That provides:

"(2) Leave to appeal shall not be granted unless it is certified by the Court of Appeal or the Court of First Instance, as the case may be, that a point of law of great and general importance is involved in the decision ...."

A number of points were initially advanced for certification by counsel for the respondent but in the end - consequent upon exchanges between Bench and Bar - there are two points which remain.

4. The first is:

"in the light that article 16(2) of the Bill of Rights Ordinance (Cap. 383) read together with article 27 of the Basic Law require that the freedom of expression shall be subject to restrictions that are necessary for the maintenance of public order (order public) whether the offence of scandalising the court by scurrilous abuse can only survive in Hong Kong if the offence requires proof that the acts complained of constituted a clear, present and imminent danger to the administration of justice.

5. The second point is:

"whether conduct such as the pursuit of the Hon Mr Justice Godfrey on 11, 12 or 13 January 1998 as found by the Court of First Instance constitutes the offence of contempt of court in the absence of evidence of actual interference with the administration of justice."

6. We turn to the second point first. The decision of this Court was that, so far as the pursuit was concerned, contempt was made out because there was real risk that the administration of justice as a continuing process would be interfered with, in the sense that public confidence in the due administration of justice would be undermined. That was the point which was involved in the decision of this Court. In those circumstances we decline to certify the second point.

7. We turn then to the first question. It is submitted by Mr Ronny Tong SC who appears for the Secretary for Justice that we should concentrate upon the difference in the wording between this section and the section dealing with civil appeals. In particular that a point of law of great and general public importance is involved, notice the word "and". The submission, if I may encapsulate it, is that this offence is thankfully so rare that there has never been a previous case in Hong Kong, and indeed, in other places in the common law jurisdictions, it is also very rare. In these circumstances, although the point may be of great importance, it is certain that it cannot also be of general importance so as to entitle this Court to exercise its discretion to certify. In support, he cites a passage from Arnold and The King-Emperor [1914] AC 644 at 648 where Lord Shaw said this:

"It may in general be stated that its practice is to the following effect: It is not guided by its own doubts of the appellant's innocence or suspicion of his guilt. It will not interfere with the course of criminal law unless there has been such an interference with the elementary rights of an accused as has placed him outside of the pale of regular law, or unless, within that pale, there has been a violation of the natural principles of justice so demonstratively manifest as to convince their Lordships, first, that the result arrived at was opposite to the result which their Lordships would themselves have reached, and, secondly, that the same opposite result would have been reached by the local tribunal also if the alleged defect or misdirection had been avoided."

With respect, that is not exactly in point. We have to determine the isolated question whether to certify that this is a point of great and general importance.

8. On balance, we conclude that it is a point of great and general importance. It obviously relates to constitutional freedoms, although a rather limited application of them. In spite of the fact that this Court decided that this was a plain and obvious case of contempt, that is not a matter which should influence us in our present consideration.

9. In those circumstances we certify that this is a point of great and general importance which was involved in the decision of the Court. That is on the undertaking that the Notice of Motion will be filed today. There will be liberty to apply. Costs will be in the cause of the application for leave to appeal.