SECRETARY FOR JUSTICE v. SIEW YUN LONG

HCMP 2917, 2920-2923, 2926, 2928-2929, 2931-2932/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS

NOS 2917, 2920-2923, 2926, 2928-2929, 2931-2932 OF 2015

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D E C I S I O N
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INTRODUCTION

1.  I have before me a total of 5 summonses taken out by the respondents seeking, in each instance, an order that the leave (“the Second Leave”) granted by this court on 11 November 2015 to the Secretary for Justice (“the Secretary”) to apply for an order of committal against the respondents be set aside.

2.  In what follows, references to “Order” and “rule” shall, unless the context indicates otherwise, be references to the Rules of the High Court.

PROCEDURAL BACKGROUND

3.  The present contempt proceedings arose out of events occurring at the westbound carriageway of Argyle Street between the junction of Tung Choi Street and Portland Street on 25 November 2014 in connection with the execution of an injunction order granted by Au J on 10 November 2014 and sealed on 14 November 2014 in HCA 2086/2014 (“the Injunction Order”).

4.  The background facts leading to the lapse of the earlier leave (“the First Leave”) granted by this court on 20 March 2015 to the Secretary to apply for an order of committal against the respondents have been set out in my earlier decision in Secretary for Justice v Cheng Kam Mun [2015] 1 HKLRD 41 given on 1 September 2015.  I do not propose to repeat them in this decision.

5.  Following the court’s decision in Cheng Kam Mun, on 6 November 2015, the Secretary applied, ex parte, for fresh leave to apply for an order of committal against the respondents pursuant to Order 52, rule 2(2).

6.  On 11 November 2015, this court granted fresh leave (ie the Second Leave) to the Secretary to apply for an order of committal against the respondents.

7.  On 25 November 2015, the Secretary, pursuant to the Second Leave, issued an originating summons under Order 52, rule 3(1) against each of the respondents.

8.  Also on 25 November 2015, the Secretary for Justice issued, in respect of each of the respondents, a notice of appointment to hear the originating summons pursuant to Order 52, rule 3(2).

9.  The respondents now seek to challenge the Second Leave granted by this court.  In summary, the following grounds have been raised by some or all of the respondents in support of their applications:-

(1) The Secretary is time-barred from initiating committal applications on conduct which could have been prosecuted by way of a statuary offence under section 23 of the Summary Offences Ordinance, Cap 228 (“Section 23”).

(2) Alternatively, the court should, in the exercise of its discretion, set aside the Second Leave on the ground of frustration of legitimate expectation.

(3) The time limit imposed by Order 52, rule 3(2) for entering the originating summons for hearing is mandatory.  Once the court has granted leave to an applicant to apply for an order of committal against a respondent and such leave has lapsed, the court lacks jurisdiction to deal with the same matter anymore.

(4) The lapse of the First Leave means that it is an abuse of process for the Secretary to re-commence committal proceedings against the same respondents.

10.  In what follows, I shall deal with each of these grounds separately.

1^ST GROUND: IMPLIED TIME BAR

11.  According to Mr Gerard McCoy SC, there is an implied time bar, namely, 6 months from the date when the matter of complaint of criminal contempt arose, for the Secretary to apply for leave to apply for an order of committal against the respondents.  This time bar, it is said, arises from the “principle of legality” and/or the Hong Kong Bill of Rights having regard to the following circumstances:-

(1) The conduct of the respondents complained of by the Secretary could equally be prosecuted as an offence under Section 23.

(2) As a matter of fact, the Secretary did originally charge the respondents for an offence under Section 23 in the magistrates’ court.

(3) The Secretary subsequently decided not to pursue the Section 23 charge and elected to proceed with committal proceedings, recognising that the respondents could not be punished “twice on the same acts”.

(4) A person who is charged with a Section 23 offence is entitled to certain statutory protections, including (i) a time limit of 6 months for commencement of prosecution under Section 26 of the Magistrates Ordinance (Cap 227), and (ii) a penalty limit of a fine of HK$1,000 and imprisonment for 6 months under Section 23.

(5) Accordingly, the same protections should be available to the respondents who could have been, and were originally, charged with an offence under Section 23, even though the Secretary has later elected to pursue committal proceedings against them.

12.  On this argument, the lapse of the First Leave is irrelevant.  The time bar of 6 months would apply even if the leave application made on 6 November 2015 was the first time that the Secretary sought leave to apply for an order of committal against the respondents.

13.  I do not accept that the Secretary is subject to the suggested time bar of 6 months for seeking leave to apply for an order of committal under Order 52, rule 2(2), whether generally or in the particular circumstances of these cases.  In my view, Mr McCoy’s argument overlooks two fundamental points.  First, the offence created by Section 23 and the offence of criminal contempt are completely different in so far as their purposes, essential ingredients and sanctions are concerned.  In particular:-

(1) The purpose of Section 23 is to proscribe conduct amounting to “resisting or obstructing a public officer or other person lawfully engaged in a public duty”, whereas the purpose of the offence of criminal contempt is for “the protection of the administration of justice and the maintenance of the court’s authority”: see Arlidge, Eady & Smith on Contempt (4^th Ed, 2011), paragraph 3-6.

(2) In relation to their essential ingredients, Section 23 catches conduct amounting to resisting or obstructing a public officer or other person lawfully engaged, authorized or employed in the performance of any public duty or any person lawfully assisting such public officer or person therein (which may have nothing whatsoever to do with the execution of any court order or the administrative of justice), whereas conduct constituting a criminal contempt can take a variety of forms occurring in a variety of circumstances which can be far removed from what is mentioned in Section 23.  Since the parties have not made submissions on the precise essential ingredients of the offence of criminal contempt, I shall leave that matter for future consideration as and when it becomes necessary to do so.

(3) Lastly, the sanction following a conviction of an offence under Section 23 is limited to a fine of HK$1,000 and imprisonment for 6 months, whereas the sanction for criminal contempt is not so limited.

14.  The second fundamental point is that under Article 63 of the Basic Law, prosecutorial decisions are vested in the Department of Justice free from any interference.  Generally speaking, it is entirely a matter for the Secretary to decide what criminal charge to pursue against a person whose conduct could be prosecuted for a number of different offences carrying difference consequences.  The court has power to restrain an abuse of process, but it would only be in the most exceptional circumstances that the court would consider a prosecutorial decision made by the Department of Justice as amounting to an abuse.

15.  In the present cases, the Secretary’s reasons for deciding to pursue the criminal contempt route were set out in the skeleton submissions of the Deputy Director of Public Prosecutions (“DDPP”) dated 7 January 2015 in HCA 2086/2014 and more fully in paragraph 5 of the DDPP’s skeleton submissions dated 7 January 2015 in HCA 2104/2014 (relating to another set of contempt proceedings), as follows:-

“(1)The main gravamen of the conduct leading to the arrests was open disobedience of the Court Injunction Order, thereby undermining (a) the due administration of justice, (b) the respect for the authority of the court, and (c) therefore the Rule of Law …

(2) The Rule of Law ought to be upheld.

(3) In the interest of justice, it is more appropriate to bring the APs back before the court whose order s/he openly disobeyed to be dealt with by the Court as the court may deem appropriate.

(4) The Rule of Law, and the authority of the Court, are best safeguarded and seen to be safeguarded this way.”

16.  Whether the respondents’ conduct amounted to an open disobedience of the Injunction Order or constituted a criminal contempt are matters to be tried in due course (in respect of which I express no view at present), but I am unable to see how the Secretary’s decision to proceed with contempt proceedings for the aforesaid reasons, which appear to be based on public interest considerations, can be said to amount to an abuse of the court’s process or, as put by Mr McCoy, a “colourable device to circumvent time limits to arrive at the possible outcome of a deprivation of liberty” (see paragraph 9 of Mr McCoy’s written submissions).

17.  Neither can I see any valid basis to import the time bar prescribed by Section 26 of the Magistrates Ordinance into the criminal contempt regime.  In Gascoyne v Custom and Excise Commissioners [2003] Ch 292, Neuberger J (as he then was) had to consider whether it would be an abuse of process for the Commissioners of Custom and Excise to commence condemnation proceedings in the High Court (which was not subject to any time limit) when he could have instituted condemnation proceedings in the magistrates court, which would have been subject to a time limit of 6 months which had expired.  Rejecting the defendant’s complaint of abuse of process, Neuberger J stated as follows:-

“70. … The legislature, for reasons best known to itself, has given the commissioners the option of bringing condemnation proceedings either in the magistrates' court or the High Court, and I cannot see any reason, in principle or logic, for applying to High Court proceedings a time bar which plainly only applies to magistrates' court proceedings. Where legislation gives a person, whether a public body or a private individual, the option of taking one of two courses, each of which is subject to its own statutory and procedural rules, it seems to me that it would require the most exceptional circumstances before a statutory procedural rule, which was plainly promulgated in relation to only one of the courses, could be applied to the other course as well.

71. On the other hand, the notion that the commissioners have, almost literally, an infinite period within which to issue condemnation proceedings in the High Court cannot, to my mind, be right. It appears to me that, in any particular case, a time will come when it would be an abuse of their powers, and indeed an abuse of process, for the commissioners to issue condemnation proceedings, that is to say that such proceedings would, if issued, be struck out. It would be inappropriate to try to set out the sort of circumstances which might give rise to such a situation; whether such proceedings are or would be an abuse would have to be decided on the particular facts of the particular case. Plainly, in the great majority of cases, an abuse argument would be based on an unjustifiable or oppressive period of delay, or on some sort of assurance or indication that condemnation proceedings would not be issued in the High Court.”

18.  I pause to observe that there is no suggestion, nor is there any ground to contend, in the present cases that the Secretary was guilty of unjustifiable or oppressive delay in making the application for fresh leave on 6 November 2015, or that some sort of assurance or indication had been given by the Secretary that committal proceedings would not be issued in the High Court against the respondents.

19.  A similar argument, in the context of the same offence in civilian and military jurisdictions, was raised and rejected by the English Court of Appeal in R v Buchan [2007] EWCA Crim 716 and R v S [2013] EWCA Crim 2519.

20.  Although the above cases arose in somewhat different contexts, they illustrate the difficulty of trying to import rules made specifically for one regime for application in another regime.

21.  In support of his argument, Mr McCoy places heavy reliance on two cases, one a judgment of the House of Lord in R v Rimmington [2006] 1 AC 459, and the other a judgment of the Supreme Court of New Zealand in Siemer v Solicitor-General [2010] 3 NZLR 767.

22.  In Rimmington, the defendants were charged with and convicted of the common law offence of causing a public nuisance, in one case by sending to several different people a total of 538 separate letters and packages containing racially offensive materials, and in the other by sending through the post to an old friend an envelope containing a cheque in repayment of a debt together with a small quantity of salt, which was intended as a humorous gesture or joke but which a postal worker, upon seeing some of the leaked salt, feared might be anthrax and raised an alarm leading to the evacuation of the building and cancellation of the second delivery of the post for that day.  In the UK, conduct that was formerly chargeable as the crime of public nuisance at common law had largely become the subject of express statutory provision.  Apparently, the prosecutor chose to proceed with the common law offence because (i) by the time that the first defendant was unmasked as the writer of the letters, many of the incidents were so old that there was a bar on any prosecution under statute, and (ii) the sentence available on conviction under statute was regarded as insufficient to mark the seriousness of that’s defendant’s conduct.   It was in that context that consideration was given to the question of whether, where conduct was the subject of express statutory provision, it should be charged under the statutory provision and not as public nuisance at common law.

23.  On that question, Lord Bingham of Cornhill said the following at paragraphs 30 and 31 of his speech in the House of Lords:-

“30. Where Parliament has defined the ingredients of an offence, perhaps stipulating what shall and shall not be a defence, and has prescribed a mode of trial and a maximum penalty, it must ordinarily be proper that conduct falling within that definition should be prosecuted for the statutory offence and not for a common law offence which may or may not provide the same defences and for which the potential penalty is unlimited… It cannot in the ordinary way be a reason for resorting to the common law offence that the prosecutor is freed from mandatory time limits or restrictions on penalty. It must rather be assumed that Parliament imposed the restrictions which it did having considered and weighed up what the protection of the public reasonably demanded. I would not go to the length of holding that conduct may never be lawfully prosecuted as a generally-expressed common law crime where it falls within the terms of a specific statutory provision, but good practice and respect for the primacy of statute do in my judgment require that conduct falling within the terms of a specific statutory provision should be prosecuted under that provision unless there is good reason for doing otherwise.

31. It follows from the conclusions already expressed in paras 29 to 30 above that the circumstances in which, in future, there can properly be resort to the common law crime of public nuisance will be relatively rare. It may very well be, as suggested by J R Spencer in his article cited in para 6 above, at p 83, that ‘There is surely a strong case for abolishing the crime of public nuisance’. But as the courts have no power to create new offences (see para 33 below), so they have no power to abolish existing offences. That is a task for Parliament, following careful consideration (perhaps undertaken, in the first instance, by the Law Commission) whether there are aspects of the public interest which the crime of public nuisance has a continuing role to protect. It is not in my view open to the House in resolving these appeals to conclude that the common law crime of causing a public nuisance no longer exists.”

24.  In the same case, Lord Rodger of Earlsferry stated the following at paragraphs 52 to 54 of his speech:-

“52. When Parliament enacted the statutory offences, it did not expressly abolish the corresponding aspect of the common law offence of public nuisance. Therefore, if - contrary to my view - Mr Rimmington's conduct in writing the letters had amounted to a public nuisance, it would presumably have continued to do so even after the statutory offences were introduced. So a charge could not have been regarded as bad simply because it was framed in terms of the common law rather than in terms of the statute. To put the matter more generally, where Parliament has not abolished the relevant area of the common law when it enacts a statutory offence, it cannot be said that the Crown can never properly frame a common law charge to cover conduct which is covered by the statutory offence. Where nothing would have prevented the Crown from charging the defendant under the statute and where the sentence imposed would also have been competent in proceedings under the statute, the defendant is not prejudiced by being prosecuted at common law and can have no legitimate complaint.

53. Here, however, according to what Mr Perry told the House, the Crown had deliberately chosen the common law offence in order to avoid the time-bar which Parliament had enacted and to allow the judge, if he thought fit, to impose a heavier sentence than the one permitted under statute. The issue bears some resemblance to the issue in R v J [2005] 1 AC 562 . There is no suggestion, of course, that the Crown acted in bad faith. On the contrary, it is easy to understand why they did what they did. In a particular case, such as this, a time-limit which prevents prosecution once a certain time has passed since the act was committed can appear to be arbitrary and to reward an offender for concealing his offences. The sentence available under the statute may also seem inadequate to reflect the gravity of the defendant's conduct. But Parliament has deliberately chosen to intervene and to prescribe a period within which conduct of this kind can be prosecuted summarily under statute. This must be taken to reflect Parliament's judgment that, if the conduct has not been prosecuted within that time, the public interest is now against proceeding. That judgment may be based on various factors. Parliament may, for example, consider that after a certain period everyone should move on and prosecutors should turn their attention to other matters. Police and prosecution resources, it may be thought, are better spent on detecting and prosecuting recent, rather than stale, offences of this kind or recent, rather than old, incidents in a course of conduct. More serious matters should be given priority. Similarly, in the matter of sentence, Parliament has reached a view that certain conduct is appropriately covered by an offence which can be tried only summarily and which should attract no more than a particular level of sentence. Parliament has also fixed the maximum sentence to be imposed in summary proceedings, even where the defendant is convicted of more than one charge. Again, in any particular case, the sentence available under statute may appear to the prosecutor to be inadequate. But Parliament is entitled to place an offence in what it regards as the appropriate level in the hierarchy of offences and to limit the sentencing power of a court where the accused is not tried by jury.

54. It is not for the Crown to second-guess Parliament's judgment as to any of these matters by deliberately setting out to reject the applicable statutory offences and to charge the conduct in question under common law in order to avoid the time-limits or limits on sentence which Parliament has thought appropriate. It may be that, in the light of experience, Parliament's judgment can be seen to have been flawed or to have been superseded by events. Doubtless, the prosecuting authorities have channels through which they can-and perhaps should-draw any such perceived deficiencies to the attention of the Home Secretary. It is then up to ministers and, ultimately, Parliament to decide whether the law should be changed. But, unless and until it is changed, its provisions should be respected and the Crown should not devise a strategy to avoid them.”

25.  In my view, the true principle to be derived from the above speeches of Lord Bingham and Lord Rodger is that it is a matter of statutory construction whether the legislature intends, by enacting the relevant statutory offence, that the prosecution should no longer be permitted to prosecute an accused person for a corresponding common law offence where his conduct can also be prosecuted as an offence under statute.  It may be that the existence of the statutory offence can be taken as a pointer that the legislature intends that henceforth the prosecution should only proceed under statute.  The question is, ultimately, one of statutory construction, and the proper question to ask is whether the legislature intends that the prosecution can only prosecute the accused person for an offence under the statute in the circumstances which have occurred.

26.  Three further points are of note arising out of the judgment of the House of Lords in Rimmington.  First, the situation in which Lord Bingham said it would ordinarily be proper that conduct falling within the ingredients of a statutory offence should be prosecuted for the statutory offence and not for a common law offence is where the legislature has enacted a specific statutory offence and the conduct complained of can be prosecuted both as the statutory offence and a generally-expressed common law crime.  It does not seem to me that Section 23 can be regarded as the specific statutory offence designed or intended to cover the field of criminal contempt involving resisting or obstructing of a public officer or other person engaged in the execution of a court order.

27.  Second, the corresponding common law offence still exists notwithstanding the creation of the relevant statutory offence by the legislature.  For this reason, it must be the case that there could be occasions where it would be permissible, and indeed proper, for the prosecution to proceed with a charge under common law. As observed by Lord Bingham in the aforesaid quote from his speech, “good practice and respect for the primacy of statute do in my judgment require that conduct falling within the terms of a specific statutory provision should be prosecuted under that provision unless there is good reason for doing otherwise” [emphasis added].

28.  Third, where the prosecution has proceeded under common law but the circumstances are such that it ought to have proceeded under statute, it is not the case that statutory protections such as those relating to time bar for prosecution or maximum sentence upon conviction should be imported into the common law offence.  If, upon the true construction of the relevant statute, it is held that the prosecution can only prosecute the accused person for the statutory offence, the proper course to take, it seems to me, would be to dismiss the common law charge.

29.  It may also be observed that in Rimmington, notwithstanding what was said about the interaction between the statutory offence and the common offence of public nuisance, as a matter of fact, the House of Lords allowed the defendants’ appeals because in one case the conduct of the sender of the racially offensive materials did not amount to the offence of causing a public nuisance, and in the other case the sender of the letter containing the salt lacked the necessary mens rea for the common law offence.

30.  Rimmington was considered by the Hong Kong courts in two public nuisance cases concerning the same defendant, (i) HKSAR v Pearce [2006] 3 HKC 105, and (ii) HKSAR v Pearce [2009] 5 HKLRD 1.

31.  In the first case, the defendant dressed himself in a “Spiderman” costume and mounted to the podium in a building in Central and hung a banner in front of a large TV screen.  His actions drew crowds of onlookers and caused traffic congestion which lasted for about 2 hours.  Fire Services set up rescue cushion and part of the road beneath was cordoned off.  Vehicular traffic was diverted, and traffic lights were suspended.  Police were called in for crowd and traffic control.  Access to and from the shops in the building was impeded.  Some shops closed and staff of the management company had to shepherd pedestrians along the detour.  One of the defendant’s grounds of appeal against his conviction for public nuisance was that he should not have been charged with the common law offence of public nuisance when a statutory offence under section 4(28) of the Summary Offences Ordinance, which prohibited “any act whereby injury or obstruction, whether directly or consequentially, may accrue to a public place …” without lawful authority or excuse and prescribed a more limited penalty upon conviction, was available.  Rejecting the defendant’s argument, Beeson J said the following at paragraphs 54 to 58 of her judgment:-

“54. Counsel for the Appellant argued, on the basis of Rimmington, that if a statutory offence existed it should be used, rather than the common law equivalent, unless there was good reason not to do so. However as counsel for the Respondent pointed out the offence had not been abolished and could be charged in appropriate circumstances.

55. Article 63 of the Basic law provides:

‘The Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions free from any interference.’

56. The choice of charge and venue for trial is the responsibility of the Secretary for Justice and his designated officers. The prosecution has a wide discretion as to the charge or charges it may lay and in the absence of bad faith, abuse of process, or perverse decision a court is unable to question the decision. Charges are laid and venues chosen according to prosecution policy and guidelines taking into account the gravity of the offence, the elements that can be proved and other factors such as prevalence, deterrence, community mores etc. The prosecutorial burden is a heavy one and it is for the Secretary for Justice to decide in what manner it is borne. Although the Appellant argued that the charge was inappropriate, it was not suggested that the common law offence was chosen, in the manner deprecated in Rimmington, to circumvent mandatory time limits, or limits on penalties.

57. The Respondent submitted that it was open to the Secretary for Justice to choose the charge, which, in the proper exercise of his discretion, he considered, properly reflected the gravity of the situation it was intended to deal with. Section 4(28) of the Summary Offences Ordinance, Cap. 228 was more commonly used to combat the mischief of hawkers or shop owners encroaching on and obstructing public space in some way, although it could be used, as it was in Yeung May-wan and HKSAR (2005) 8 HKCFAR 137, to deal with obstruction caused by demonstrators.

58. Nothing in the arguments put forward by counsel for the Appellant convinces me that the common law offence should not have been preferred. This ground of appeal fails.”

32.  In the second case, the defendant unlawfully climbed onto Tsing Ma Bridge and, during a two-hour demonstration, roamed the six-lane upper deck and between two gantries using a makeshift crossing; hung three banners; spent significant periods without safety harness attached to any anchor; and placed one leg over the safety fencing twice threatening to jump off.  Out of concern for the safety of the defendant and others, the authorities closed the entire upper deck, creating traffic jam which stretched 4 km in one direction and 12 km in another. The defendant again raised the objection that he ought to have been charged with the offence of obstruction under the Summary Offences Ordinance instead of the common law offence of public nuisance.  Wright J dismissed the defendant’s objection, and said the following at paragraphs 25 to 27 of his judgment:-

“25. The appellant further raised a query why, in the light of the comments of Beeson J in HKSAR v Pearce, he had been charged with the common law offence of public nuisance rather than obstruction contrary to the Summary Offences Ordinance. The creation of a statutory offence does not abolish, of necessity, an existing common law offence, absent express indication: the restriction, if it maybe regarded as such, is against the prosecution charging a common-law offence with the express purpose of circumventing the statutory offence, especially, perhaps, as to either time limits or penalty.

26. Lord Bingham of Cornhill expressed it in this way in R v Rimmington, R v Goldstein [2005] UKHL 63:

‘30 … I would not go to the length of holding that conduct may never be lawfully prosecuted as a generally-expressed common law crime where it falls within the terms of a specific statutory provision, but good practice and respect for the primacy of statute do in my judgment require that conduct falling within the terms of a specific statutory provision should be prosecuted under that provision unless there is good reason for doing otherwise.’

27.   It seems to me that good reason for prosecuting the appellant under the common law offence clearly existed in the instant matter…”

33.  Returning to the cases at hand, I am unable to discern, from Section 23 or any other provision in the Summary Offences Ordinance, any legislative intention that, in the circumstances obtained here, the Secretary can only proceed against the respondents for an offence under Section 23 instead for criminal contempt in respect of their conduct complained of by the Secretary. I do not believe that the legislature intends, by enacting the offence of resisting or obstructing a public officer or other person lawfully engaged in a public duty under Section 23, that cases involving an open disobedience of an injunction order granted by the High Court (as alleged by the Secretary here) should or could only be prosecuted for the offence under Section 23 instead of the common law offence of criminal contempt.  In any event, I consider that the Secretary’s reasons for deciding to pursue the criminal contempt route given by the DDPP (referred to in paragraph 15 above) amount to “good reasons” for prosecuting the respondents for the common law offence of criminal contempt instead of the offence under Section 23.

34.  I next turn to consider the judgment of the Supreme Court of New Zealand in Siemer, which Mr McCoy says is “particularly apposite to the facts at hand” (see paragraph 9 of Mr McCoy’s written submissions).  The issue in that case was whether a person founded to be in contempt of court and sentenced to 6 months’ imprisonment should have been allowed to elect for a jury trial in his contempt proceedings by virtue of the section 24(e) of the New Zealand Bill of Rights Act 1990, which provided as follows:-

“Everyone who is charged with an offence –

(e) Shall have the right, except in the case of an offence under military law tried before a military tribunal, to the benefit of a trial by jury when the penalty for the offence is or includes imprisonment for more than 3 months …”

35.  By a majority, the Supreme Court of New Zealand held that the protection under section 24(e) of the New Zealand Bill of Rights Act 1990 was applicable to a person who was the subject of an application for committal for contempt, and substituted an order committing the appellant to prison for a maximum term of three months.

36.  The decision of the Supreme Court of New Zealand in Siemer may support the proposition that the rights which a person charged with a criminal offence enjoys under the Hong Kong Bill of Rights are also available to a person who is the subject of an application for committal for criminal contempt.  No relevant right under the Hong Kong Bill of Rights is, however, engaged in the present cases.  Although Mr McCoy has referred the court to Articles 10 and 11 of the Hong Kong Bill of Rights, I do not see what right(s) which the respondents may be entitled to under those articles has or have been infringed.

37.  On any reading, Siemer cannot support the proposition that a specific time limit of 6 months for commencement of contempt proceedings can be implied, whether generally or in the circumstances obtained in the present cases.

38.  In all, I reject the argument that the Secretary was time barred from applying for fresh leave to apply for an order of committal against the respondents on 6 November 2015.

2^ND GROUND: FRUSTRATION OF LEGITIMATE EXPECTION

39.  Mr McCoy next argues that the court should, in the exercise of its discretion, set aside the Second Leave on the ground of frustration of legitimate expectation, the relevant expectation being, it is said, the substantive protections of (i) a time bar for prosecution similar to that provided by Section 26 of the Magistrates Ordinance and (ii) a maximum sentence as prescribed by Section 23.

40.  Mr McCoy submits that the Secretary’s circumvention of the aforesaid statutory protections, by electing to proceed with contempt proceedings instead of pursuing a Section 23 charge, comes under the third category of frustration of legitimate expectation as articulated by Lord Woolf MR in R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213, at paragraph 57:-

“There are at least three possible outcomes. (a) The court may decide that the public authority is only required to bear in mind its previous policy or other representation, giving it the weight it thinks right, but no more, before deciding whether to change course. Here the court is confined to reviewing the decision on Wednesbury grounds (Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223). This has been held to be the effect of changes of policy in cases involving the early release of prisoners: see In re Findlay [1985] AC 318 ; R v Secretary of State for the Home Department, Ex p Hargreaves [1997] 1 WLR 906. (b) On the other hand the court may decide that the promise or practice induces a legitimate expectation of, for example, being consulted before a particular decision is taken. Here it is uncontentious that the court itself will require the opportunity for consultation to be given unless there is an overriding reason to resile from it (see Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629) in which case the court will itself judge the adequacy of the reason advanced for the change of policy, taking into account what fairness requires. (c) Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.”

41.  It is clear from the above judgment of Lord Woolf MR that before any legitimate expectation under the third category can arise, there must first be a lawful promise or practice by the decision maker inducing the expectation.  In the present cases, the respondents have not been able to identify any relevant lawful promise or practice by the Secretary either that he would only charge the respondents for an offence under Section 23 and would not apply for an order of committal against them, or that any application for leave to apply for an order of committal would be made within 6 months of the conduct giving rise to the alleged contempt.  There is, in my view, no proper basis for the alleged legitimate expectation which could have been frustrated by the Secretary’s decision to seek fresh leave to apply for an order of committal against the respondents on 6 November 2015.

42.  Mr Benjamin Yu SC (for the Secretary) has also drawn my attention to the judgment of the Court of Appeal in The Queen v Soo Fat-ho, HCMA 982/1991 (26 June 1992), in which it was held that the concept of “legitimate expectation” has no place in the criminal law, although the court has power to stay proceedings on the ground of abuse of process.  In R v Maxwell [2011] 1 WLR 1837, at paragraph 13, Dyson JSC said that the court has the power to stay proceedings in two categories of cases, namely, (i) where it will be impossible to give the accused a fair trial, and (ii) where it offends the court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case.  The same principles were stated by Sir Anthony Mason NPJ (with whom the other members of the Court of Final Appeal agreed) in HKSAR v Lee Ming Tee (2003) 6 HKCFAR 336, at paragraph 182.  In the present cases, I do not consider that it will be impossible to give the respondents a fair trial, or it will offend the court’s sense of justice and propriety to be asked to determine the Secretary’s complaint of criminal contempt against them in a public trial.

43.  In all, I do not accept Mr McCoy’s argument that the court should, in the exercise of its discretion, set aside the Second Leave on the ground of frustration of legitimate expectation.

3^RD GROUND: COURT’S JURISDICTION AFTER LAPSE OF ORIGINAL LEAVE

44.  This ground is raised by Mr Lawrence Lok SC and Mr Hectar Pun SC on behalf of their respective clients.  In particular, Mr Pun argues that Order 52, rules 2(2) and 3(2) of the Rules of the High Court do not envisage any procedure for making a “second application” for leave after the original leave granted has lapsed due to a failure to comply with the time requirement under rule 3(2).

45.  I have dealt with substantially the same argument in my earlier decision in Secretary for Justice v Chau Wan Ying and Others, HCMP 774, 776-781, 783, 784, 787-789, 791-798 of 2015 (8 March 2016), in which I came to the conclusion that the court has jurisdiction to entertain an application by the Secretary for fresh leave in the same proceedings in which the original leave, which had lapsed under Order 52, rule 3(2), was granted.  If the court has jurisdiction to grant fresh leave in the existing proceedings in such circumstances, it seems to me obvious that the court must likewise have jurisdiction to grant fresh leave in new proceedings commenced by the Secretary.

46.  Despite the submissions of Mr Lok and Mr Pun, I am not persuaded that the aforesaid conclusion reached in Chau Wan Ying is wrong.  I am given to understand that my decision in Chau Wan Ying is currently under appeal to the Court of Appeal.  Since the issue of jurisdiction will in due course be fully ventilated in the Court of Appeal, I do not propose to deal with this matter any further in this decision.

4^TH GROUND: ABUSE OF PROCESS

47.  Mr Lok argues that it is was an abuse of process for the Secretary to apply for fresh leave for committal in new proceedings, in circumstances where (i) the originating summonses in the first set of proceedings have not yet been struck out, dismissed or withdrawn, and (ii) the costs of the first set of proceedings have not yet been paid.

48.  In relation to the argument that it is an abuse of process for the Secretary to bring a second action while the first action is still extant and for duplicitous proceedings to be maintained over the same subject matter, Mr Lok relies on the judgment of Recorder Fok SC (as he then was) in Lam Pak Cheung v Lin Zhen Lue [2009] 1 HKLRD 35.  In that case, the plaintiff commenced two separate actions against several parties, one by way of an originating summons in July 2006 and the other by writ of summons in November 2007, in relation to the same subject matter.  The learned Recorder considered that the two sets of proceedings were materially duplicitous and that the plaintiff or his legal advisers should have realised, having regard to the complexity and nature of the disputes, that the originating summons procedure was inappropriate and the proper course was to issue proceedings by a writ of summons.  He further came to the view that the only rational reason for the plaintiff wishing to keep the original action alive was in order to avoid the incidence of an adverse costs order being made in that action (paragraph 57).  As such, the plaintiff’s stance in having commenced two overlapping sets of proceedings against substantially the same parties and for substantially the same relief but in seeking to keep the original action alive while prosecuting the second, more appropriate, action was an abuse of the court’s process (paragraph 58).  The learned Recorder therefore struck out the first action.

49.  Lam Pak Cheung is plainly distinguishable from the present cases.  There is no question here of the Secretary seeking to avoid the incidence of any adverse costs orders being made in the earlier contempt proceedings.  The court has already made costs orders in those proceedings which, I understand, are currently under assessment.  The Secretary sought fresh leave for committal only because the original leave granted had lapsed. The original set of contempt proceedings can no longer be proceeded with in the absence of some further order of the court.   I am unable to see how the seeking of fresh leave by the Secretary in such circumstances can be regarded as an abuse of the process of the court.

50.  Reliance is placed by Mr Lok on what was said in paragraph 38 of the judgment in Lam Pak Cheung, as follows:-

“It has been held that, where proceedings are in existence based on a particular cause of action, it is prima facie an abuse of process to bring a second action based on the same cause of action and the latter action is liable to be struck out: see Buckland v. Palmer [1984] 1 WLR 1109, applied in Hong Kong in The Pertamina [1986] HKC 78.”

51.  It is important to note the words “prima facie” in the above passage in the judgment of the learned Recorder.  Whether a plaintiff has abused the court’s process by bringing a second action when there is in existence an earlier action based on the same cause of action must be determined by the court on the particular facts and circumstances of the case. As mentioned above, I do not consider the seeking of fresh leave by the Secretary on 6 November 2015 can be regarded as an abuse of the process of the court.

52.  It should also be noted that in Lam Pak Cheung, there was no suggestion that the second, more appropriate, action should be struck out or stayed.  What was under consideration was whether the first, inappropriate, action ought to be struck out or stayed (see paragraph 48 of the learned Recorder’s decision). There is no application before me to strike out or stay the first set of proceedings which, as earlier mentioned, can no longer be proceeded with in the absence of some further order of the court.  It is thus not necessary for me to decide whether those proceedings ought to be struck out or stayed.

53.  In relation to the argument that it is was an abuse of process for the Secretary to apply for fresh leave for committal where the costs of the first set of proceedings have not been paid, I am given to understand that the costs which the Secretary has been ordered to pay have not yet been assessed or agreed. The previous and present proceedings are publicly funded on both sides.  There is no question of the Secretary not paying the costs incurred by the Director of Legal Aid on behalf of the respondents in the first set of proceedings once they have been assessed or agreed.  I am simply unable to see how it would be right to set aside the present proceedings merely because the unascertained costs of the first set of proceedings have not yet been paid by the Secretary. It cannot possibly be in the interests of any parties, or in the public interests, for the Secretary to delay the fresh proceedings until after the costs of the first set of proceedings have been ascertained and discharged. Neither of the authorities cited by Mr Lok, namely, Investment Invoice Financing Ltd v Limehouse Board Mills Ltd [2006] WLR 985; and Global Bridge Assets Ltd v Sun Hung Kai Financial Ltd [2015] 5 HKLRD 553, can lead to the result contended for by Mr Lok.

DISPOSITION

54.  For the foregoing reasons, I dismiss the respondents’ summonses with costs to the Secretary, to be taxed if not agreed with certificate for 2 counsel.

55.  The respondents’ own costs are to be taxed in accordance with legal aid regulations.

56.  I shall leave it to the parties to agree on the further directions to be given for the future conduct of these proceedings, including the fixing of trial dates pending any appeal against this decision to the Court of Appeal, with liberty to the parties to apply where necessary.

57.  Lastly, it remains for me to thank counsel for the assistance that they have rendered to the court.