SECRETARY FOR JUSTICE v. CHOY BING WING

HCMP 1313/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1313 OF 2010

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BETWEEN

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J U D G M E N T

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McMahon and Macrae JJ:

1.  This is an application by the Secretary for Justice (the Plaintiff) pursuant to leave granted on 21^st July 2010 under Order 52 rule 2(2) of the Rules of the High Court, for the committal of the Defendant Mr Choy Bing Wing (Mr Choy) for contempt of court. The grounds upon which committal is sought are that the Defendant made, during civil proceedings in or in connection with HCA No. 2458 of 2007 and HCB No. 12343 of 2009, certain serious scurrilous remarks and allegations against the Registrar, Madam Queeny Au Yeung (the Registrar).

2.  Those remarks and allegations will be particularized in due course. Before doing so, it is necessary to understand the background to this matter and to appreciate the context in which the remarks and allegations were made.

Chronology

3.  On 21^st November 2007 Mr Choy, as Plaintiff in HCA No. 2458 of 2007, filed a Statement of Claim against 5 Defendants including the Director of Housing (the 4^th Defendant) seeking, inter alia, an Order “for the surrender of files containing injurious falsehood of the professional career to ruin the Plaintiff”. By this action Mr Choy was seeking relief against the defendants for what he said was a loss of livelihood and reputation arising out of his claimed opposition to the construction of defective buildings in a housing development. On 19^th December 2007, after the Defendants had taken out 3 summonses to strike out the Plaintiff’s claim, a Directions hearing took place before the Registrar. She directed that the summonses be set down for a 6-hour hearing on a date to be fixed.

4.  On 20^th December 2007, Mr Choy as Plaintiff in the action applied by letter to the Registrar for copies of the transcript and tape recording of the hearing of 19^th December 2007. On 21^st December 2007, the Registrar refused the application.

5.  On 27^th December 2007, Mr Choy wrote a letter to Ma CJHC (as he then was) asking him to order the Registrar to release the said transcript and tape recording. On the same day, he sent another letter in somewhat less restrained terms to Li CJ, Ma CJHC and the Registrar reiterating his request. He wrote:

“I have no doubt at all that you have attempted to cover-up crimes against the undersigned by HKSAR … to the extent of omission of no time for the undersigned to submit arguments”.

6.  The next day, 28^th December 2007, Mr Choy applied by summons to discontinue the proceedings in HCA No. 2458 of 2007. The proceedings were duly discontinued and on 7^th January 2008, the Registrar ordered Mr Choy as Plaintiff to pay the costs of the aborted action.

7.  On 15^th May 2009, the 4^th Defendant in HCA No. 2458 of 2007 served a statutory demand for unpaid costs on Mr Choy. On the same day, Mr Choy wrote to the solicitors for the 4^th Defendant complaining that:

“Registrar Queeny Au-Yeung in allowing your costs for cheating has become a party to your fraud”.

The letter was copied to Li CJ, Ma CJHC and the Registrar herself. (This allegation forms Particular (b)(vii) of the Particulars of Contempt).

8.  On 15^th September 2009, the costs remaining unpaid, the 4^th Defendant filed a Creditor’s Bankruptcy Petition against Mr Choy (HCB No. 12343 of 2009). The Petition was ordered to be heard on 11^th November 2009.

9.  On 16^th September 2009, Mr Choy wrote to the Chief Executive alleging, inter alia, that the 4^th Defendant in HCA 2458 of 2007 had:

“committed abuse of the bankruptcy law in violation of the rule of law in conspiracy with Queenie (sic) Au Yeung”.

The letter was copied to various people including Premier Wen Jiabao, Ma CJHC, 5 Hong Kong newspapers and the Registrar herself. (This allegation forms Particular (b)(vi) of the Particulars of Contempt).

10.  Also on 16^th September 2009, Mr Choy issued a cheque in favour of the ‘Director of Housing Authority’ for the outstanding costs but with a condition endorsed on the reverse that it was to be cashed “only when the two tilting tower 天頌閣 be sold to the public”.

11.  On 8^th October 2009, the solicitors for the 4^th Defendant refused to accept the cheque and requested Mr Choy to make an unconditional settlement.

12.  On the same day, Mr Choy sent a letter to the solicitors for the 4^th Defendant alleging:

“Your client has been cheating the public by allowing 2 tilting towers to remain useless the disclosure of which to the public was stopped by Criminal Queenie (sic) Au-yeung in HCA 2458/2007 for refusing to order the discovery of documents made known to me by my most honourable friends in a letter dated 21/3/2002, copy enclosed”.

The letter was copied to the Chief Executive and to “Criminal Queenie (sic) Au-yeung – Registrar HC”. (This allegation forms Particular (b)(v) of the Particulars of Contempt).

13.  On 15^th October 2009, the solicitors for the 4^th Defendant returned the cheque to Mr Choy.

14.  On 16^th October 2009, Mr Choy responded by sending a letter to the solicitors for the 4^th Defendant with the heading in bold type as follows:

“Re: Payment of Blackmail aided and abetted by Bitch Queenie (sic) Au-yeung for the cover-ups of crimes committed”.

This letter was circulated to, amongst others, the Chief Executive, the Editors of 7 Hong Kong newspapers and the Registrar herself. However, it does not form any of the Particulars of Contempt, perhaps because Mr Choy did not reiterate the allegations in the body of the letter.

15.  On the same day, however, in a letter to the Chief Executive, Mr Choy wrote:

“Bitch Queenie (sic) Au-yeung (Registrar of High Court) stopped the action by her refusal to my application for discovery of government documents which slandered me made known to me by my Most Honourable Friends on Government Service, her attempt to the further crime cover-ups”.

The letter concluded with Mr Choy saying:

“… I pay the blackmail of judicial cheatings committed by Criminal/ Bitch Au Yeung, Registrar of HKSAR”.

(This allegation forms Particular (b)(iv) of the Particulars of Contempt). The letter was copied to, amongst others, Ma CJHC, Chan PJ, the ICAC and “Criminal/Bitch Au-yeung”.

16.  On 29^th October 2009, in response to a further letter from the solicitors for the 4^th Defendant, Mr Choy referred to the costs order “made by Bitch Queenie (sic) Au Yeung” and wrote:

“I demand Mr Tsang to clear the complaints and the treatment of payment of ransom of the blackmail conspired together with Bitch Queenie (sic) Au-yeung”.

The letter was copied to, amongst others, the Chief Executive, the Editors of 7 Hong Kong newspapers and the Registrar herself. (This allegation forms Particular (b)(iii) of the Particulars of Contempt).

17.  On 3^rd November 2009, Mr Choy filed his affirmation in HCB No.  12343 of 2009 which referred in paragraph 2 to his sending a cheque to the solicitors for the 4^th Defendant “sufficient for the ransom for the blackmail as ordered by Bitch Queenie (sic) Au Yeung”. At the bottom of the document, after the affirmation duly signed before a Commissioner for Oaths, he wrote:

“This affirmation is filed on behalf of the victim of the blackmail ordered by bitch Queenie (sic) Au Yeung”.

(These two references to the Registrar in the affirmation form the basis of Particular (b)(i) and (ii) of the Particulars of Contempt. It should be noted that all the letters which form the basis of the other Particulars, namely (b)(iii), (iv), (v), (vi) and (vii) were exhibited in 92 pages of exhibits attached to this affirmation.)

18.  Although it does not form one of the Particulars of Contempt, a further letter from Mr Choy dated 5^th November 2009 helps to explain a later exchange during the bankruptcy proceedings before Master Ko (now HH Judge Ko) on 11^th November 2009. The letter was addressed to the Chief Executive, “Bitch Au Yeung” and another judge of the High Court to whom he attached a similarly offensive epithet.  It was further copied to, amongst others, 7 Hong Kong newspapers as well as the New York Times. The heading of the letter in bold type reads:

“Re: Bitch Au Yeung Aiding Donald Tsang to blackmail Choy Bing Wing through bankruptcy proceedings.”

19.  On 11^th November 2009, the bankruptcy petition was heard in open court by Master Ko. At the end of the proceedings, which need not concern us, the following exchange took place between the Court and Mr Choy:

“Court:	Mr Choy, I note on the file that there is an affirmation from you.
Mr Choy:	Before - - there is affirmation…
Court:	There is an affirmation affirmed on 3 November 09, filed by you.
Mr Choy:	Yes.
Court:	… in which scandalous reference was made against the Registrar.
Mr Choy:	Yes.
Court:	Now, let me explain to you that that scandalous remark is scandalous and irrelevant to this petition, and I ask you now to withdraw such reference.
Mr Choy:	No, I don’t, I don’t.
Court:	Now, if not, then I’ll have no option but to refer this matter to the DOJ for further investigation and proceedings.
Mr Choy:	Yes.
Court:	You do not wish to…
Mr Choy:	No, I don’t. I tell the truth, nothing else. It is my legal right for the discovery and he - - and she denied it, refused it.”

Mr Choy then asked the Court why it had singled out his remarks about the Registrar and not mentioned the other Judge about whom he had made a similarly offensive remark (see para. 18 supra). The exchanges continued:

“Court:	Just a minute, Mr Choy, I haven’t finished. Please stay in your seat. You may be seated, Mr Choy. Now, Mr Choy, I consider that the remark you made against Madam Registrar is both scandalous and irrelevant. So in the exercise of my power under order 41, rule 9, I strike out those references and also I also rely on my inherent jurisdiction. I also refer this matter to the DOJ for consideration of contempt proceedings, all right? Anything else? If not, then you may leave now. Thank you.
Mr Choy:	No. There is a contradiction here. You struck out the evidence. How can I prepare the affirmation. It is contrary to law. How can you exercise your jurisdiction. Contrary to law. I think I must make a complaint to your boss. Bye, bye. That’s a - - definitely a judicial cheating.
Court:	Next case, please.”

20.  It is clear from that exchange that not only was Mr Choy afforded an opportunity to withdraw his imputation against the Registrar in the affirmation and refused to do so, but he stood by it as if it were a justifiable thing to say. He went on further somewhat defiantly to query why the Court should have questioned the epithet ascribed to the Registrar but not the one used in relation to another Judge of the High Court. (This matter forms the basis of Particular (c) of the Particulars of Contempt).

21.  On the same day the Order of Master Ko was sealed ordering, inter alia, that “the scandalous remark made against the Registrar of the High Court in the affirmation of the Debtor filed on 3^rd November 2009 be struck out”.

22.  On 12^th November 2009, Mr Choy wrote a letter to the Registrar, which was copied to Ma CJHC, purporting to justify the way he had referred to the Registrar. He wrote in the following terms:

“2. The above transcripts and tapes for the hearing on 19/12/2007 first sought on 20/12/2007 was refused by you on 21/12/2007 despite my demands of such based on Article 81 and Article 35 of the Basic Law for which you have contravened.

3. The experience dealing with you for my attempt to seek justice under the Basic Law has been founded on the evidence from the correspondences exchanged with you and G. Ma (total pages 24 enclosed). It has enabled me to reach the conclusion of you calling you a bitch as stated in my 3^rd affirmation due to the judicial cheatings obstructing the procedure and the course of justice committed by you for your refusal to release the transcript and tapes sought by me against the conspiracy of ruining me by officers of the Government of Hong Kong named as the defendants disclosed by my Most Honourable friends in a letter dated 21/3/2002.

4. Contempt of Court has now been referred to DOJ. Prison sentence would be the likely penalty to be imposed on me. If you have not breached your statutory Oath of your refusal to release the transcripts/tapes on 21/12/2007, the calling of you a bitch would have never happened because you had committed obstruction of justice according to the rule of justice administered under Common Law as that administered by the then Acting Chief Justice, the Honourable Power ordering Rogers to release transcript/ tapes in HCCW321/1996 as pointed out in paragraph 3 of my letter dated 3/6/2009 to you and G. Ma, page 12 of the enclosure herewith.

5. I must demand you to carry out your duty according to your Oath of Office to release the transcripts and tapes for my submission to explain for my reason of the conclusion calling you a bitch in my 3^rd Affirmation due to your obstruction of justice to avoid imprisonment and the coming bankruptcy proceedings under the bankruptcy law required of the court to look behind the raw evidence of court records i.e. the transcript of the hearing on 19/12/2007.”

23.  It appears that around the end of November or beginning of December 2009, Mr Choy received copies of the materials he had earlier sought because there followed a further letter from him to the Registrar, which was copied to Master Ko, dated 2^nd December 2009. It read:

“I have just received the aforesaid materials from Master Ko (but not yet the same for the hearing before Master Ko himself). The same is not directly from you.

I must point out that should you have released the same to me earlier, a lot of troubles and vigorous complaints could have been avoided. Now after such difficult and serious protests including naming you as “Bitch”, suddenly the same is released even through you and Master Ko have not replied my letters and kept silent.

Please explain your earlier conduct and the sudden change of stance in releasing the long delayed transcript and tape causing me to drop my legal rights to appeal against Registrar Au Yeung’s Orders for the earlier refusal to release the said transcripts and causing the serious protest of naming Registrar Au Yeung as bitch based on court experience inter alia in HCA 424/2005.”

We shall return to the purported justification contained in these two letters in due course.

24.  It is against that factual background that this application is now made.

The Particulars of Contempt

25.  On 15^th July 2010, the Plaintiff made ex parte application for leave to apply for the committal for contempt of the Defendant, which application was granted on 21^st July 2010. The grounds upon which committal is sought before this Court are the same as those on which leave was sought. Leaving aside Particular (a), which is not strictly an allegation at all, the grounds upon which the application are made are articulated as follows:

“Particulars

(a) On 15 September 2009, the Director of Housing presented a petition in HCB No. 12343 of 2009 for the bankruptcy of Mr Choy based on a costs order dated 7 January 2008 made by the Registrar in HCA No. 2458 of 2007, in which Mr Choy was the Plaintiff and the Director of Housing the 4^th Defendant.

(b) On 3 November 2009, Mr Choy affirmed and filed an Affirmation, together with a 92-page exhibit marked CBW-1, in HCB No. 12343 of 2009 (“Mr Choy’s Affirmation”) indicating his intention to oppose the petition. It contained the following remarks and allegations made by Mr Choy against the Registrar:

(i)   In paragraph 2 of Mr Choy’s Affirmation – “Bitch Queenie [sic] Au Yeung”

(ii)     At the end of the body of Mr Choy’s Affirmation – “This affirmation is filed on behalf of the victim of the blackmail ordered by Bitch Queenie [sic] Au Yeung”

(iii) In a letter signed by Mr Choy and addressed to Messrs JSM dated 29 October 2009 exhibited within CBW-1 – “Bitch Queenie [sic] Au Yeung” and “treatment of payment of ransom of the blackmail conspired together with Bitch Queenie [sic] Au-yeung”

(iv) In a letter signed by Mr Choy and addressed to the chief Executive Mr Donald Tsang dated 16 October 2009 exhibited within CBW-1 – “Bitch Queenie [sic] Au-yeung (Registrar of High Court)…, her attempt to further crime cover-ups” and “I pay the blackmail of judicial cheatings committed by Criminal/Bitch Au Yeung, Registrar of HKSAR”

(v) In a letter signed by Mr Choy and addressed to Messrs JSM dated 8 October 2009 exhibited within CBW-1 – “Criminal Queenie [sic] Au-yeung” and “Criminal Queenie [sic] Au-yeung – Registrar HC”

(vi)    In a letter signed by Mr Choy and addressed to the Chief Executive Mr Donald Tsang dated 16 September 2009 exhibited within CBW-1 – “He has committed abuse of the bankruptcy law in violation of the rule of law in the conspiracy with Queenie [sic] Au Yeung”

(vii)   In a letter signed by Mr Choy and addressed to Messrs JSM dated 15 May 2009 exhibited within CBW-1 – “Registrar Queeny Au-Yeung in allowing your costs for cheating has become a party to your fraud.”

(c) On 11 November 2009, at an open court hearing before learned Master Ko (“the Master”) in HCB No. 12343 of 2009, the Director of Housing, who was represented by Messrs JSM, asked for a withdrawal of the petition (as a cheque had been received from Mr Choy in settlement of the outstanding amount) but also an order for indemnity costs against Mr Choy. In the course of the hearing, the Master invited Mr Choy to withdraw the scandalous remarks in Mr Choy’s Affirmation but he refused to do so. Mr Choy, in response, further said: “No, I don’t. I tell the truth, nothing else. It is my legal right for the discovery and he – and she denied it, refused it. And also swine (the name of another judge of the High Court), another remark. Why do you refer to bitch Au-Yeung?”

26.  On 21^st October 2010, a Directions hearing was convened by this Court, for which notice was given to both parties. In the event, the Defendant, Mr Choy was not present. Accordingly, we adjourned the hearing for 1 week to 28^th October 2010 to give the Defendant an opportunity to attend. The Defendant was again absent notwithstanding that notice of the hearing was properly served on him. At the adjourned hearing, we gave directions for the filing of affirmations and serving of written submissions by both parties for the hearing which was set down on 13^th and 14^th December. On 5^th November 2010 in a letter to the Chief Executive, Ma CJ and Tang Ag CJHC, which was copied to us, the Defendant made clear that he would “not attend Court anymore from today by their intimidations”. True to his word, he did not appear at the hearing on either 13^th or 14^th December. However, it is clear he had notice of the hearing because he returned to the Court, by letter under his hand of 30^th November 2010, both the Plaintiff’s letter advising him of the hearing date and the Plaintiff’s submissions. In the result, and as a preliminary issue, we were satisfied by evidence that the Defendant has had ample and proper notice of the hearing but has deliberately chosen not to be present.

The Plaintiff’s case

27.  Mr McCoy SC for the Plaintiff puts the case against the Defendant on two bases. Firstly, he submits that by the persistent use of serious and scurrilous invective against the Registrar, which by its very nature is calculated to lower her authority and bring her into contempt, Mr Choy’s actions have so scandalised the court as to amount to a contempt of court. Secondly, he argues that behind his conduct there is a deliberate scheme or pattern to Mr Choy’s actions, which goes further than mere vilification of a judge or court, and amounts to an intentional obstruction or interference with the due administration of justice or the lawful process of the court. If the Plaintiff could successfully demonstrate that Mr Choy had this underlying intention, this second basis would, of course, be a significantly more serious form of contempt.

28.  In relation to this latter argument, Mr McCoy asserts with some force that Mr Choy’s conduct should be seen as part of a concerted plan to unsettle and intimidate judges and to remove or recuse anyone whom he does not think will give him what he wants from further dealing with his case. He has painstakingly taken us through the evidence of Mr Choy’s protracted correspondence and appearances before the courts in order to demonstrate a pattern of behaviour, which, he submits, is symptomatic of a determined campaign to interfere with the due administration of justice for his own ends. However, compelling though the argument is, we consider that it ultimately fails the standard of proof applicable to this area of the law. We have asked ourselves the simple question whether we can be sure that this was Mr Choy’s intention but we find we cannot be sure of such a specific intention on the part of the contemnor. We do not, therefore, need to address the second of Mr McCoy’s submissions further and are only concerned with the first of his submissions alleging that Mr Choy has committed a contempt of court by scandalising the court.

The Law of Contempt of Court

29.  The jurisdiction of contempt of court is of ancient origin. As long ago as 1900, Lord Russell CJ was able to describe it, in R v Gray (1900) 2 QB 36 at 40, as “not a new-fangled jurisdiction; it is a jurisdiction as old as the common law itself, of which it forms a part.” The two categories of contempt, which Mr McCoy’s submissions invoke, were themselves articulated in Gray, at 40:

“Any act done or writing published calculated to bring a Court or a judge of the Court into contempt, or to lower his authority, is a contempt of Court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the Courts is a contempt of Court. The former class belongs to the category which Lord Hardwicke L.C. characterised as ‘scandalising a Court or a judge.’ That description of that class of contempt is to be taken subject to one and an important qualification. Judges and Courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no Court could or would treat that as contempt of Court. The law ought not to be astute in such cases to criticise adversely what under such circumstances and with such an object is published…”

In dealing with the particular contempt in issue, which was made against a High Court Judge, the Court said:

“Now, as I have said, no one has suggested, or could suggest, that it falls within the right of public criticism in the sense I have described. It is not criticism: I repeat that it is personal scurrilous abuse of a judge as a judge.”

30.  The Lord Chief Justice’s dual classification for contempt of court has been accepted and applied by the Privy Council in Ambard v Attorney-General for Trinidad and Tobago (1936) A.C. 322, the New Zealand Court of Appeal in Solicitor-General v Radio Avon Ltd and Another (1978) 1 NZLR 225, and the Hong Kong Court of Appeal in Wong Yeung Ng v Secretary for Justice (1999) 2 HKLRD 293.

31.  The rationale for the first limb of the offence at common law has been explained in various ways at various times. Over 200 years ago, in R v White and Another (1808) 1 Camp. 360, Grose J held that the writers of an article were guilty if the published material “contained no reasoning or discussion, but only declamation and invective, and were written not with a view to elucidate the truth, but to injure the characters of individuals, and to bring into hatred and contempt the administration of justice…”; whilst in Re S.B. Sarbadhicary (1907) 95 LT 894 at 895, it was said to be “essential to the proper administration of justice that unwarranted attacks should not be made with impunity upon judges in their public capacity”. In Radio Avon Ltd the Court considered at 230: “The justification for this branch of the law of contempt is that it is contrary to the public interest that public confidence in the administration of justice should be undermined”, reasoning which was adopted and amplified by Chan CJHC and Keith J (as they then were) in Secretary for Justice v The Oriental Press Group Ltd and Others (1998) 2 HKLRD 123 at 148:

“A civilised community cannot survive without effective machinery for the enforcement of its laws. The task of enforcing those laws falls on the courts, and on the judges who preside over them. It has always been regarded as vital to the rule of law for respect for the judiciary to be maintained and for their dignity to be upheld. If it were otherwise, public confidence in the administration of justice would be undermined, and the law itself would fall into disrepute. That is the rationale for the branch of the law of contempt known as ‘scandalising the court’.”

32.  Mortimer V-P (as he then was) in Wong Yeung Ng at 313 endorsed such reasoning, particularly in the context of a small jurisdiction such as Hong Kong, and considered that the confidence of ordinary citizens or litigants could be affected if sustained attacks upon the courts or judges were allowed to go unchecked. He adopted a further refinement articulated in Arlidge, Eady & Smith on Contempt (2^nd Ed.) at para. 16-8 that:

“Whilst it is true that the law of contempt is not concerned with the dignity of individuals taking part in the judicial process, or even with upholding respect for the law in any purely deferential sense, the administration of justice needs to proceed in circumstances of calm and dignity in order to be effective.” (original emphasis)

33.  A similar sentiment was expressed in the Canadian Queen’s Bench decision of Re Borowski (1971) 19 D.L.R. (3d) 537 at 547:

“The language of the respondent in his everyday speech, be it colourful, forceful, vulgar or otherwise, be it in good or bad taste, is a matter of his own choosing. It is an entirely different matter when directed against the Court.

The importance of the traditional respect that has always been accorded the dignity and majesty of the Courts cannot be overemphasized. Any act contributing to loss of that respect is bound to adversely affect the orderly operation of our judicial processes and impair the due administration of justice.”

34.  It was said by the Privy Council in Ambard at 335, in a passage often referred to in subsequent authority:

“… whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way: the wrong headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”

We accept the right to criticise, sometimes even robustly, the decisions of judges and we are also mindful of the later qualification to the proscription on attributing improper motives made by the Privy Council in Ahnee v DPP (1999) 2 A.C. 294 at 306:

“… so far as Ambard’s case (1936) A.C. 297 may suggest that such conduct must invariably be an offence their Lordships consider that such an absolute statement is not nowadays acceptable. For example, if a judge descends into the arena and embarks on extensive and plainly biased questioning of a defendant in a criminal trial, a criticism of bias may not be an offence. The exposure and criticism of such judicial misconduct would be in the public interest.”

35.  The Court in Radio Avon Ltd at 230 voiced the same reservation while accepting the generality of the statement in Ambard. The Court adopted the view expressed in The Law of Contempt (1973) by Borrie & Lowe at p. 383-384 that provided any criticism is free from the taint of scurrilous abuse and can be either justified or be properly considered as fair comment, it ought not to amount to contempt.

36.  It is axiomatic, and has been clear at least since Gray, that the standard of proof applicable to applications such as this is the criminal standard, namely proof beyond reasonable doubt. As Lord Russell CJ put it in Gray at 41:

“It is a jurisdiction, however, to be exercised only when the case is clear and beyond reasonable doubt; because, if it is not a case beyond reasonable doubt, the Courts will and ought to leave the Attorney-General to proceed by criminal information.”

37.  The elements of the offence requiring proof have recently been neatly stated by the Privy Council in Ahnee and may be taken from the head note:

“(3) That where publication was intentional and the article was calculated to undermine the authority of the court, and the defence of fair criticism in good faith did not apply, the offence of scandalising the court was established and no additional element of mens rea was required to be proved.”

We think, as did the Court in The Oriental Press Group Ltd and others at 155-156, that the term “calculated” has the meaning ascribed to it by Donovan LJ (as he then was) in Attorney-General v Butterworth (1963) 1 QB 696 at 725, namely:

“The question is whether the respondents’ action was calculated so to interfere, and this involves a consideration not of their state of mind on this particular point but of the inherent nature of their act…”

38.  It can be seen from this brief excursion through precedent that a contempt of court can take a number of forms.  We, having rejected Mr McCoy’s assertions of a deliberately orchestrated campaign of interference with the administration of justice, are left effectively with one remaining form; that of scandalising the court by invective and vilification directed against a particular judicial officer in her public capacity.  That such personal, abusive and insulting references may amount to a contempt of court is, in our view, beyond argument.  Such references detract from the dignity of the judicial office and of its authority, both of which the community is entitled to have upheld as necessary components of the administration of justice.

Application

39.  Applying the law as we apprehend it to be to the facts of this case, we are in no doubt whatsoever that Mr Choy, 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 scurrilous allegations against her, all of which were made or incorporated in court documents, has in fact undermined the authority and dignity of the Registrar so as to amount to a contemptuous scandalising of her Court.

40.  In as much as Mr Choy has purported to suggest that the ultimate release of the materials he had sought from the Court justified the use of such scurrilous invective, without which the Court would not have yielded to his demands, we utterly reject the validity of any such justification for the insulting and abusive language he deployed. If that were his purpose, and if he had indeed succeeded by such methods, it would be a particularly grave matter because it could not but seriously undermine the confidence of ordinary people and litigants in the due administration of justice by impartial judicial officers unaffected and uninfluenced by personal attacks upon them. Fortunately for Mr Choy, we do not think the Court was so timid or so easily browbeaten by such attacks upon it and we shall not hold what he considers to be the justification for his actions against him. On the contrary, it seems to us from the evidence that the Registrar behaved with commendable propriety, dignity and self-restraint. Suffice it to say, and making all such allowances for a litigant in person faced with a decision he does not like, we find no justification whatsoever for his actions.

Decision

41.  We find beyond reasonable doubt that all of the Particulars of Contempt are made out and that Mr Choy has thereby so scandalised the court by his actions as to be in contempt of court. Accordingly, a warrant will be issued for the Defendant to be brought before this Court to answer for his contempt.