Secretary for Justice v. Cheung Kai Yin

CACV 69 to 75/2016,
CACV 77 to 89/2016,
CACV 125 to 131/2016 and
CACV 133 to 135/2016
(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 69 OF 2016

(ON APPEAL FROM HCMP NO 777 of 2015)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 70 OF 2016

(ON APPEAL FROM HCMP NO 779 of 2015)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 71 OF 2016

(ON APPEAL FROM HCMP NO 781 of 2015)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 72 OF 2016

(ON APPEAL FROM HCMP NO 789 of 2015)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 73 OF 2016

(ON APPEAL FROM HCMP NO 793 of 2015)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 74 OF 2016

(ON APPEAL FROM HCMP NO 794 of 2015)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 75 OF 2016

(ON APPEAL FROM HCMP NO 797 of 2015)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 77 OF 2016

(ON APPEAL FROM HCMP NO 783 of 2015)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 78 OF 2016

(ON APPEAL FROM HCMP NO 784 of 2015)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 79 OF 2016

(ON APPEAL FROM HCMP NO 788 of 2015)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 80 OF 2016

(ON APPEAL FROM HCMP NO 791 of 2015)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 81 OF 2016

(ON APPEAL FROM HCMP NO 796 of 2015)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 82 OF 2016

(ON APPEAL FROM HCMP NO 798 of 2015)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 83 OF 2016

(ON APPEAL FROM HCMP NO 774 of 2015)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 84 OF 2016

(ON APPEAL FROM HCMP NO 776 of 2015)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 85 OF 2016

(ON APPEAL FROM HCMP NO 778 of 2015)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 86 OF 2016

(ON APPEAL FROM HCMP NO 780 of 2015)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 87 OF 2016

(ON APPEAL FROM HCMP NO 787 of 2015)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 88 OF 2016

(ON APPEAL FROM HCMP NO 792 of 2015)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 89 OF 2016

(ON APPEAL FROM HCMP NO 795 of 2015)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 125 OF 2016

(ON APPEAL FROM HCMP NO 2922 of 2015)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 126 OF 2016

(ON APPEAL FROM HCMP NO 2923 of 2015)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 127 OF 2016

(ON APPEAL FROM HCMP NO 2926 of 2015)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 128 OF 2016

(ON APPEAL FROM HCMP NO 2928 of 2015)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 129 OF 2016

(ON APPEAL FROM HCMP NO 2929 of 2015)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 130 OF 2016

(ON APPEAL FROM HCMP NO 2931 of 2015)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 131 OF 2016

(ON APPEAL FROM HCMP NO 2932 of 2015)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 133 OF 2016

(ON APPEAL FROM HCMP NO 2917 of 2015)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 134 OF 2016

(ON APPEAL FROM HCMP NO 2920 of 2015)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 135 OF 2016

(ON APPEAL FROM HCMP NO 2921 of 2015)

_______________________

_______________________

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.These appeals are brought by the respondents in a number of applications by the Secretary for Justice for committal based on allegations of criminal contempt. By an order of 8 March 2016, Chow J dismissed the summonses issued on behalf of these respondents seeking to strike out the applications for committal. The respondents are appealing against that order of 8 March 2016.

2.The substantive appeals are scheduled to be heard in August 2016.  Several preliminary points arose and the court directed for written submissions to be lodged.  After reading those submissions, the court directed for a hearing of the following preliminary points:

(a)  Whether these appeals are civil appeals or criminal appeals;

(b)  If the appeals are criminal appeals, what procedural rules are applicable for the preparation of the appeals;

(c)  Whether section 50 of the High Court Ordinance is applicable to these appeals; and

(d)  Further case management directions to facilitate the hearing of the substantive appeals.

3.We are grateful for the thorough research conducted by learned counsel.  Having heard their submissions (both written and oral), we have reached a number of conclusions discussed below.

4.It is important to determine the nature of these appeals because the court must ensure not only that it has jurisdiction to hear the appeals but also that the correct procedures are followed.  One of the points raised by Mr McCoy SC is that the court has no power to entertain the Respondent’s Notices issued by the Secretary for Justice.   

5.Notwithstanding that the proceedings are “prosecutions” for criminal contempt, we have come to the conclusion that these appeals are properly characterized as civil appeals.  In other words it is correct to have the appeals intituled as CACVs and they are civil causes or matters.

6.The interpretation provisions in Section 2 of the High Court Ordinance (Cap 4) and Order 1 Rule 4 of the Rules of the High Court do not contain any definitions for “civil” or “criminal” causes or matters.

7.Section 12 of the High Court Ordinance provides for the civil jurisdiction of the Court of First Instance in Section 12(1) and the criminal jurisdiction of that court in Section 12(2).  Those subsections refer, inter alia, to the original jurisdiction of a like nature and extent in the courts in England.  It is often said that the jurisdiction of the court to punish contempt is sui generis and in many respects principles applicable to criminal cases are applicable to contempt proceedings (both proceedings for civil as well criminal contempt).  As explained below, this is to give recognition to the rights of the alleged contemnor under articles 10 and 11 of the Hong Kong Bill of Rights in light of the potential penal consequences upon a finding of contempt.  However, as further explained below, the application of such principles does not necessarily lead to the conclusion that the proceedings in question are criminal proceedings.

8.In Hong Kong, as in England, prosecution for criminal contempt can be brought either by way of notice of motion issued under Order 52 (as in Secretary for Justice v Ng Wai Bing [2011] 5 HKLRD 620; Re Kennedy (No 1) [2004] 3 HKC 404) or by way of a trial on indictment in the Court of First Instance.  Further in cases of contempt committed in the face of the court as in HKSAR v Yau [1999] 2 HKLRD 633, the court can exercise its power to summarily convict a person of contempt.  

9.In the present cases, all the prosecutions for criminal contempt are being brought by way of civil proceedings intituled as HCMPs pursuant to Order 52 as opposed to criminal proceedings intituled as HCCCs for trial on indictment before a judge and jury.  Whilst the form of proceedings should not be determinative of their substance, it should be noted that under the Criminal Procedure Ordinance Cap 221, all the trials of criminal proceedings in the High Court must be conducted by way of trial on indictment before a judge and jury.  Plainly, proceedings under Order 52 are not governed by the procedures under that ordinance.   

10.The jurisdiction of the Court of Appeal is governed by Section 13 of the High Court Ordinance: section 13(2) in respect of civil appeals and section 13(3) in respect of criminal appeals.  In addition, appeals in cases of contempt of court are governed by Section 50 of that ordinance.  Section 50(1) provides that the section “shall have effect in substitution for any other law relating to appeals in civil or criminal proceedings”.

11.It is also notable that Section 50(5) provides for the exception of finding of contempt in the context of criminal trials from the scope of Section 50.  In such cases, the appeals regarding the punishment for contempt shall be treated as appeals governed by the Criminal Procedure Ordinance.  Such appeals (even if it is an appeal against punishment for civil contempt as in Director of the Serious Fraud Office v O’Brien [2014] AC 1246) will fall within the criminal jurisdiction of the Court of Appeal under Section 13(3) of the High Court Ordinance.  

12.Though the distinction between civil and criminal contempt exists (see Director of the Serious Fraud Office v O’Brien, supra.), it would be wrong to assume that prosecution for criminal contempt should automatically be regarded as the exercise of criminal jurisdiction.  As mentioned, there have been many cases where criminal contempt was prosecuted by way of civil proceedings in the Court of First Instance.  Actually, in our experience in Hong Kong, we have not come across any case in recent time where criminal contempt was prosecuted as a High Court Criminal Case for trial before jury.   

13.In proceedings brought by motion, the distinction between civil contempt and criminal contempt is not determinative of the nature of the proceedings.  In Secretary for Justice v Choy Bing Wing [2005] 4 HKC 439, the court agreed with the observations of Sir John Donaldson MR in AG v Newspaper Publishing Plc [1988] Ch 33 at 362B-C on the potential misleading nature of such distinction and held that Order 52 of the Rules of the High Court is applicable to both civil as well as criminal contempt. 

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

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

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

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

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

17.Notwithstanding Mr McCoy’s submission to the contrary, we agree with Mr Yu that proceedings for criminal contempt, like proceedings for civil contempt, can be brought pursuant to Order 52 of the Rules of the High Court. 

18.This mode of proceedings is different from the criminal prosecution for the offence of criminal contempt in the High Court. By reason of Section 41 of the Criminal Procedure Ordinance Cap 221, in the exercise of the criminal jurisdiction of the High Court, every person to be tried shall be tried on an indictment and such trial must be before a judge and a jury, see also the definitions for “court” and “indictment” in Section 2 of the Ordinance.  A trial before a judge and jury on indictment is the only proper means for criminal prosecution for criminal contempt in the High Court. If the Secretary for Justice chooses to proceed along that route, leave is not required as the Department of Justice shall control criminal prosecutions free from any interference under Article 63 of the Basic Law.    

19.But that was not the mode of proceedings adopted in the present cases.  In all the cases before us, the proceedings for criminal contempt were not brought by way of indictments and it is not envisaged that there would be trials of the respondents before a judge and a jury.  As correctly held by Hartmann and Suffiad JJ in Secretary for Justice v Choy Bing Wing, supra, at [14] to [16] in the modern world prosecution of criminal contempt by way of indictment is a rarity, if not obsolete altogether. 

20.Similar observations can be found in the judgments of eminent judges from other jurisdictions: Attorney General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 707-8; Re Colina; ex p Torney (1999) 200 CLR 386 [12]-[14].

21.Instead, the proceedings were brought under Order 52.  In the course of submission, Mr McCoy described the power of a court of superior record to impose punishment on contempt as an inherent power of the court.  In Ahnee v Director of Public Prosecution [1999] 2 AC 294 at 306, Lord Steyn explained the rationale for such inherent power as follows:

“ [T]he Constitution gave to each arm of government such powers as were deemed to be necessary in order to discharge the functions of a legislature, an executive and a judiciary [and] in order to enable the judiciary to discharge its primary duty to maintain a fair and effective administration of justice, it follows that the judiciary must as an integral part of its constitutional function have the power and the duty to enforce its orders and to protect the administration of justice against contempts which are calculated to undermine it.”

22.In the context of Hong Kong, the role of the judiciary in the administration of justice is provided under Articles 19, 80 to 83 of the Basic Law.  The analysis of Lord Steyn is equally apposite. 

23.With such rationale in mind, one can readily understand why contempt proceedings can be brought by means of committal proceedings under Order 52 which have a different procedural character from a criminal prosecution on indictment.

24.With respect, we do not agree with Mr McCoy that the Court of Final Appeal had held in Kao Lee & Yip v Donald Koo (2009) 12 HKCFAR 830 that appeals in criminal contempt cases must be heard by the Court of Appeal exercising its criminal jurisdiction.  In that case, the Court of Final Appeal only determined at [20] that because of the penal consequences in committal for civil contempt, it was appropriate to apply the more relaxed approach in the admission of fresh evidence as opposed to the strict civil rule of Ladd v Marshall [1954] 1 WLR 1489.  This is akin to the application of the criminal standard of proof in committal, see [30].  Sir Gerard Brennan NPJ accounted for the relaxed approach to admission of fresh evidence by reference to the autonomous characterization of contempt proceedings as “criminal proceedings” for the purposes of art 10 of the Hong Kong Bill of Rights (as explained below) and English authorities on the same topic.

25.But the applicability of a higher standard of proof and a more relaxed approach in admission of fresh evidence on account of art 10 considerations are separate questions from whether the court is exercising its criminal jurisdiction.  In Donald Koo, supra,the Court of Final Appeal did not hold that the appeal must be conducted by the Court of Appeal in the exercise of its criminal jurisdiction.  Otherwise, it would be rather surprising (to say the least) that Bokhary and Chan PJJ did not refer to this decision in Re Kennedy (No 3) [2009] 1 HKC 57, which was decided shortly after it.

26.Re Kennedy (No 3), supra, concerned committal proceedings for criminal contempt.  In considering whether leave to appeal to the Court of Final Appeal should be determined as an appeal in a criminal cause or an appeal in a civil cause or matter, the Appeal Committee held that the correct approach is to have regard to the underlying matter leading to the contempt proceedings.  On the facts, the Appeal Committee held that it was a civil cause or matter as the proceedings arose from winding-up proceedings.

27.Though the proceedings in question are applications for committal in respect of criminal contempt and the standard of proof is beyond reasonable doubt, according to the Appeal Committee in  Re Kennedy (No 3), supra, we should examine the matter underlying the contempt proceedings to determine whether the contempt proceedings are criminal or civil in nature.

28.Mr Yu quite properly drew our attention to So Wing Keung v Sing Tao [2005] 2 HKLRD 11 and O’Shea v O’ Shea and Parnell Ex p Touhy (1890) 15 PD 59.  In O’Shea, supra, the English Court of Appeal held that the court did exercise criminal jurisdiction in contempt proceedings.  However, we must respectfully differ from O’Shea in light of the binding authority upon us in Re Kennedy (No 3), supra. The same can be said regarding the authorities cited by Mr McCoy in his supplemental submissions of 29 July 2016: Government of USA v Montgomery [2001] 1 WLR 196 and Mafart v Television New Zealand [2006] 3 NZLR 18. In R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2011] 1 WLR 3253, Lord Neuberger expressed the view at [40] that the arguments on competing approaches appeared to be finely balanced. In such circumstances, it is our duty to follow the approach in Re Kennedy (No 3), supra.      

29.In So Wing Keung, supra, Ma CJHC (as he then was) was not concerned with proceedings for criminal contempt.  Instead the question before the court was whether an appeal against a decision on the issue of search warrants under section 85 of the Interpretation and General Clauses Ordinance Cap 1 falls within the scope of section 13(2) in the exercise of civil jurisdiction of the Court of Appeal.  Applying George Tan v Judge Cameron [1992] 1 HKLR 149, His Lordship held that one must have regard to the underlying proceedings in deciding whether a particular judgment or order is civil or criminal in nature.  In that respect, the approach is similar to the one adopted by the Appeal Committee in Re Kennedy (No 3), supra.  

30.At [31(11)], the learned judge said the following:

“ In ascertaining the nature of the underlying cause or matter in which the judgment or order under appeal is brought, one must, I believe, adopt a flexible approach with some degree of commonsense. The analysis should involve looking at the object and purpose of the relevant cause or matter. A cause or matter that has as its object or purpose the possible conviction of a person on a criminal charge is an a fortiori situation where the nature is without doubt criminal, but this is not the only situation …”

31.On a cursory reading, one may fall under the misapprehension that proceedings with penal consequences should be characterized as criminal.  But that was not what was actually said by the learned judge.  If one reads more carefully, His Lordship referred to “the possible conviction of a person on a criminal charge” as the object or purpose of the underlying proceedings as undoubtedly criminal in nature.  However, as explained above, committal proceedings for contempt, notwithstanding its penal consequences, are not brought by way of prosecution of a criminal charge.

32.As the case was not concerned with the scenario of proceedings for criminal contempt, Ma CJHC did not need to address the distinction between proceedings under Order 52 and a criminal prosecution on indictment.  Notwithstanding Chow J’s decision to the contrary in Secretary for Justice v Cheng Kam Mun [2015] 5 HKLRD 41 at [33], we respectfully do not regard So Wing Keung as obliging us to conclude that the present proceedings are criminal cause or matter.  To be fair to Chow J, it does not appear he had the benefit of thorough arguments as we have before us.    

33.Adopting the approach in Re Kennedy (No 3), supra, since the present sets of contempt proceedings stemmed from the execution of injunction orders granted by Au J in civil proceedings, they remain civil causes or matters notwithstanding that they are proceedings for criminal contempt.  The appeals brought against the orders of Chow J are also appeals in civil causes or matters.

34.We would add that if we were not constrained by Re Kennedy (No 3), supra and free to adopt the approach of Lord Hoffmann in Government of USA v Montgomery, supra, we would still come to the conclusion that the committal proceedings should be regarded as civil in terms of its procedural character for the reasons explained in the Australian authorities cited above. For the purposes of Section 13 of the High Court Ordinance and the Rules of the High Court, committal proceedings should be governed by rules applicable to civil appeals though all the protections under articles 10 and 11 of the Hong Kong Bill of Rights [“HKBoR”] are applicable given the potential penal consequences.

35.It follows that Mr Yu is correct in advocating that Order 59 and other rules in the Rules of High Court are applicable.  For the purpose of Order 1 Rule 2(3), the proceedings (both in the court below as well as on appeal) are not criminal proceedings.  Thus, the Rules of High Court are generally applicable to these proceedings by reason of Order 1 Rule 2(1).

36.At the same time, we should state clearly we also agree with Mr McCoy (and not disputed by Mr Yu) that for the purposes of articles 10 and 11 of the HKBoR, the applications for committal do fall within the scope of these articles.  It is well established by international and local human rights jurisprudence that “criminal charges” in that context should have a wider autonomous meaning than the ordinary classification of criminal proceedings: see Kyprianou v Cyprus (2007) 44 EHHR 27; Koon Wing Yee v Insider Dealing Tribunal (2008) 11 HKCFAR 170.  By reason of their potential penal consequences, contempt proceedings (be it civil contempt or criminal contempt) are subject to safeguards provided in those articles. However, as explained above, this view does not militate against our conclusion above on the nature of the proceedings for the purpose of determining which procedural regime shall be applicable in processing the applications for committal and the appeals arising from them.

37.In other words, notwithstanding the classification of the present sets of committal proceedings as civil causes or matters and civil proceedings, all the respondents enjoy the safeguards under articles 10 and 11 of the HKBoR.  At the same time, since the committal proceedings brought under Order 52 are not criminal prosecution, and as such falls outside the scope of Article 63 of the Basic Law, the requirement of leave under Order 52 is not incompatible with that article.   

38.Turning next to the applicability of Section 50 to these appeals.  That provision reads:

“ (1) Subject to this section, an appeal shall lie from any order or decision of a court, other than the Court of Appeal, in the exercise of jurisdiction to punish for contempt of court, including criminal contempt; and in relation to any such order or decision this section shall have effect in substitution for any other law relating to appeals in civil or criminal proceedings.

(2) An appeal under this section shall lie to the Court of Appeal in any case at the instance of the person against whom the proceedings for contempt of court were brought or the order was made and, in the case of an application for committal or attachment, at the instance of the applicant.

(3) The Court of Appeal may on appeal reverse or vary the order or decision of a court, and make such other order as may be just; and without prejudice to the powers of any court to grant bail, provision may be made by rules of court for authorizing the release on bail of an appellant under this section.

(4) In this section-

(a) ‘court’ (法庭) includes any tribunal or person having power to punish for contempt; and

(b) references to an order or decision of a court in the exercise of jurisdiction to punish for contempt of court include references to an order or decision of any court under any law enabling the court to deal with an offence as if it were contempt of court.

(5)    This section does not apply to a conviction or sentence in respect of which an appeal lies under the Criminal Procedure Ordinance (Cap 221), or to a decision of the Court of Appeal under that Ordinance; and for the purposes of that Ordinance and of this subsection an order for the punishment of any person for contempt of court in proceedings in which he has a right of appeal against his sentence shall be treated as part of that sentence.”

39.In their written submissions, counsel took us through the historical background leading to the enactment of the English equivalent of this section, viz  Section 13 of the Administration of Justice Act 1960 [“AJA”].  Before the enactment of this statutory provision, there was no right of appeal in cases of criminal contempt.  The enactment was to give a right of appeal in all cases of contempt, civil and criminal, to both parties.  In that connection, we agree with Mr Yu that the right of appeal of an applicant (including the Secretary of Justice) is a full right of appeal instead of one confining to an appeal against the refusal to make an order for committal or attachment, see AG v Hislop [1991] 1 QB 514.  We agree with counsel that Section 50 can be regarded as the primary statutory provision conferring jurisdiction on the Court of Appeal to hear such appeals.

40.In the present cases, the subject orders under appeal are not final orders made by the court below in the committal proceedings.  Such proceedings are still pending.  Rather, the appellants contend that Chow J erred in not striking out the committal proceedings.  These are interlocutory orders and subject to the effect of Section 50, leave to appeal is required under Section 14AA of the High Court Ordinance.  In this respect, the questions germane to these appeals are as follows:

(a)  Whether Section 50 applies to interlocutory orders made in committal proceedings; and

(b)  Whether Section 50 has the effect of overriding the requirement for leave in Section 14AA.

41.On the first question, Mr McCoy and Mr Yu are in agreement.  Citing the judgment of Maurice Kay LJ in R v Serumaga [2005] 1 WLR 3366, counsel submitted that Section 50 is applicable in respect of interlocutory order.  At [12] of that judgment, the learned judge said these regarding section 13(1) of the AJA:

“ We have considered two interpretations of s 13(1). The narrow interpretation is to the effect that it is not triggered until the contemnor has been convicted of, and sentenced for, the contempt. The broad interpretation is that the language ‘any order or decision … in the exercise of the jurisdiction to punish for contempt’ is sufficiently wide to relate also to orders or decisions made in the course of proceedings which may result in a conviction of, and sentence for, contempt. But we have come to the conclusion that the broad interpretation is the correct one. The statutory language permits it. … Moreover, there are exceptional features which surround summary proceedings for contempt which … demand an enlarged process of judicial scrutiny.”

42.We have no reason to disagree with that analysis.  We therefore hold that Section 50 is applicable to the present appeals. 

43.On the second question, there is an England authority suggesting that Section 13(1) of the AJA overrides the requirement for leave to appeal under CPR Part 52.3(1), see CJ v Flintshire BC [2010] 2 FLR 1224 at [4].  That decision was based on paragraph 4.2 of the Practice Direction supplementary to part 52 of the CPR where the requirement for permission to appeal was subject to exceptions in statutes.  In the absence of arguments on the issue from counsel (as they appeared to accept that the court could entertain the appeal without leave) Wilson LJ regarded Section 13(1) as providing for such exception without any reference to earlier Court of Appeal decisions on the point.

44.Though Mr Yu told us that the Secretary for Justice adopted a neutral position on this question, he invited us to consider this argument: there is no inconsistency between the requirement of leave under Section 14AA (which regulates the procedures for appeal) and the right of appeal under Section 50 (which gives the court the jurisdiction to entertain such appeal).  Thus, though there is a right of appeal under Section 50, the right must be exercised according to the rules of court for leave to be obtained before an appeal can be brought.

45.Mr McCoy submitted that the Section 14AA does not have the effect of abrogating or qualifying the entrenched right of appeal in Section 50. Given the inconsistency between the two sections, Section 50 must prevail. In this regard, counsel submitted the position is different in England due to the wordings of Section 54 of the Access to Justice Act 1999.

46.Though we told the parties at the hearing that we had some provisional views, in the end we do not find this to be an easy question.  There are English authorities pointing to different directions and the prevalent English view is at variance with the position adopted by Wilson LJ.

47.In Serumaga, supra, the Court of Appeal, Criminal Division was concerned with the refusal of bail in a summary process for contempt (not by way of proceedings for committal and the appeal was held to be by way of criminal appeal, as such not subject to any leave requirement) arising from a person failing to attend court to give evidence as a prosecution witness in a criminal trial at the Crown Court.  In that context, Maurice Kay LJ said at [12], after the dicta quoted above:

“ We are mindful of the fact that appeals to the Court of Appeal, Criminal Division, under section 13 do not require leave and that there is therefore a risk of unmeritorious applications burdening an extremely busy court. However, we assess that risk as low.”

48.In CJ v Flintshire BC, supra, the court was concerned with an application for early discharge in relation to a sentence for imprisonment imposed for the breach of an injunction granted in care proceedings.  The application was on the basis of the contemnor seeking to purge the contempt.  In England, unlike Hong Kong, the requirement of leave was not restricted to interlocutory appeals.  It was in that context Wilson LJ discussed the requirement of leave to appeal being overridden.  As we shall see, for a similar situation in Hong Kong, by reason of Order 59 Rule 21(4), leave is also not required.     

49.Further, on the facts of these two cases, liberty of the applicant was directly involved in relation to the decisions under appeal.  In those instances, in the Hong Kong context, the rights under articles 5 and 11(4) of the HKBoR can be engaged.  

50.Mr Yu drew our attention to English authorities which lend support to the argument at para 44 above: Arlidge, Eady & Smith on Contempt 4^th Edn, paragraph 15-102; Barnet London Borough Council v Hurst [2003] 1 WLR 722.  In the latter case, reference was made to an earlier case, Government of Sierra Leone v Davenport [2002] EWCA Civ 230 in which the English Court of Appeal (Laws and Jonathan Parker LJJ) held that section 13 of the AJA did not limit the effect of Section 54 of the Access to Justice Act and CPR r 52.3 on the requirement of permission to appeal regarding an order other than one of committal (exempted by reason of CPR 52.3(1)(a)(i)).  In Barnet London Borough Council v Hurst, supra, another division of the English Court of Appeal (Simon Brown, Brooke and Dyson LJJ) followed the approach in Davenport.  This was again followed by another division of the English Court of Appeal (Ward, Clarke, Neuberger LJJ) in M v M [2006] 1 FLR 1154.  See also Civil Procedure 2016 Vol 1 52.3.2 and Vol 2 paragraph 3C-39 where Barnet London Borough Council v Hurst, supra was cited as the authority setting out the position in England.  These cases were apparently not cited in CJ v Flintshire BC, supra. 

51.The leave requirement for interlocutory appeal under Section 14AA was introduced in Hong Kong under the Civil Justice Reform [“CJR”]. If one were to apply the application approach as explained in Shell Hong Kong Ltd v Yeung Wai Man Kiu Yip Co Ltd (2003) 6 HKCFAR 222, an application for committal is classified as interlocutory and if Section 14AA is applicable leave would be required.  Proceeding on that basis, the Rules Committee, as authorised under section 14AA(1), provided in Order 59 Rule 21(1)(e) that an order for committal for contempt of court is excluded from the requirement for leave in Section 14AA.  By reason of the extension of the scope of exemption to order refusing, varying or discharging such an order under Order 59 Rule 21(4), this would have covered the situation in CJ v Flintshire BC, supra. In this respect, the Working Party had clearly given thoughts to the position of appeals in committal proceedings and Mr McCoy had probably overlooked this insofar as counsel submitted otherwise. 

52.But Rule 21 contains no provision for exception in respect of other interlocutory orders made in the context of committal proceedings.  In such circumstances, whether leave is required has to be resolved by asking if Section 50 has the effect of overriding the leave requirement under Section 14AA.

53.In light of the prevalent English practice at the time of our CJR and the similarity between the exception in Order 59 Rule 21(1)(e) and that under CPR 52.3(1)(a)(i), it can be taken that the Rules Committee (and the Working Party on CJR) intend to follow the approach set out in Barnet London Borough Council v Hurst, supra.

54.As we have seen, in Barnet London Borough Council v Hurst, supra, Brooke LJ followed the decision of Jonathan Parker LJ in Davenport.  And in Davenport (we read the official transcript of the judgment from Westlaw Asia [2002] WL 45120 though it is also reported in [2002] CPLR 236), the learned judge accepted the submission of counsel that Section 54 of the Access to Justice Act 1999 had changed the appeal regime under Section 13 of the AJA.

55.Section 54 of the Access to Justice Act 1999 was in these terms:

“ (1) Rules of court may provide that any right of appeal to —

(a) a county court,

(b) the High Court, or

(c) the Court of Appeal,

may be exercised only with permission.

(2) This section does not apply to a right of appeal in a criminal cause or matter.”

56.Jonathan Parker LJ said at [7] and [8]:

“ 7.   Accordingly Mr Browne-Wilkinson submits that the relevant provision is to be found in rule 52.3 and that the only relevant question is as to the true meaning of the expression “committal order” within that rule.  He submits that on any view Blackburne J's order was not a committal order for these purposes and that it follows that the claimant requires permission to appeal in the instant case.

8.   In my judgment, Mr Browne-Wilkinson is plainly right.  The natural meaning of the expression “committal order” is an order which commits a party to prison.  That that is its true meaning in the context of rule 52.3(1)(a) is in my judgment confirmed when one looks at the other two exceptions to the requirement of permission to appeal, namely a refusal to grant habeas corpus and a secure accommodation order, both such orders being ones which affect personal liberty.  Blackburne J's order manifestly is not a committal order in that sense of the expression.  On the contrary, it expressly records that no order is made on the claimant's application.  Nor can I see any basis for saying that section 13 of the 1960 Act somehow limits the effect of section 54 of the 1999 Act or the operation of rule 52.3 of the Civil Procedure Rules .  It follows, in my judgment, that permission to appeal is required.”

57.In Hong Kong, the requirement of leave was introduced by Section 14AA which is worded differently from Section 54 of the Access to Justice Act.  As observed in the course of the hearing, it uses the expression “no appeal lies” which, read on its own, apparently contradicts the expression in Section 50 (“an appeal shall lie”).  This court has always regarded the failure to obtain leave as a matter going to the competence of an appeal, see Fok Hing (HK) Trading Ltd v Guna Wan-Indra CACV 74 of 2014, 4 July 2014.

58.Be that as it may, as submitted by Mr Yu, ultimately it is a question of statutory construction. As both sections are found in the same ordinance, they should be construed as parts of the same instrument and construed as a whole: Bennion, Statutory Interpretation 6^th Edn Section 355, in particular p.1037.  Insofar as it is possible to come to a construction which renders Section 14AA compatible with Section 50, it is the duty of this court to adopt such construction: see Institute of Patent Agents v Lockwood [1894] AC 347 at 360.

59.In enacting Section 14AA, the legislature is presumed to have in mind the existence of Section 50 as part of the same ordinance.  Since Section 14AA and Order 59 Rule 21(1)(e) were passed as parts of the same CJR package, it must be taken that the legislature also intended that the leave requirement in Section 14AA is also applicable to interlocutory orders to be made in contempt proceedings other than orders for committal or the discharge or variation of the same.  Would that be incompatible with Section 50? On proper reading, we are of the view that the answer is negative.

60.Section 14AA does not stop at the expression “no appeal lies to the Court of Appeal”. One has to read on and the whole sentence is “no appeal lies to the Court of Appeal from an interlocutory judgment … unless leave to appeal has been granted by the Court of First Instance or the Court of Appeal”.  Read as a whole, the section only provides for a procedural pre-requisite (designed for filtering out unmeritorious appeals) and it is impossible to construe this section as going to the jurisdiction of the Court of Appeal to entertain appeals on a particular subject matter. 

61.Such legislative intent is clearly borne out by the legislative history leading to the enactment of Section 14AA.  The recommendation for the leave requirement in the Final Report of the Working Party on CJR clearly spelt out this objective: see Section 22 of the Final Report.  The rationale for having the leave requirement applies as much (if not more, bearing in mind that it is imperative that committal proceedings should be determined without delay or disruption occasioned by unmeritorious interlocutory appeals having regard to article 11(2)(c) of the HKBoR) to interlocutory matters in committal proceedings as in other civil proceedings.  Paragraph 645(f) of the Report singled out the decisions committing a person to prison for contempt as exception and that led to the exemption for an order for committal in Order 59 Rule 21(1)(e).

62.This is crystal clear if one were to read Section 14AA in the overall context of the High Court Ordinance.  The primary provisions setting out the civil jurisdiction are to be found in Sections 13(2) and 14.  They are supplemented by Section 50 (and other legislative provisions like Sections 14A, 24, 52A(2) and (4)).

63.At the same time, there are other provisions in the High Court Ordinance setting out the manner and procedures for the exercise of the civil jurisdiction.  Sections 34B and 35 prescribe the composition of the Court of Appeal and the powers of a single judge.  Though loosely speaking one may refer to these sections as prescribing the “jurisdiction” in defined circumstances of a two member court or a single judge in the exercise of the civil jurisdiction of the Court of Appeal, it is not referring to the same concept as the subject matter jurisdiction of the Court of Appeal as provided in those provisions referred to at paragraph 62 above.  Rather, provisions such as sections 34B and 35 stipulate how the civil jurisdiction of the Court of Appeal may be exercised in circumstances prescribed therein.  Thus, there cannot be any suggestion that by reason of Section 50 being an “overriding” provision, a single judge or a two member Court of Appeal should be able to hear the substantive appeal against an order of committal. 

64.Rules are made pursuant to Section 54(1) to regulate the practice and procedure to be followed in all causes and matters and any matters incidental to or relating to the same.  In the context of a civil appeal, the rules include rules governing the manner in which an appeal is to be brought, the time within which an appeal can be brought and set down. It is sometimes said that an appeal brought out of time without leave is incompetent and liable to be struck out on that basis.  However, nobody will suggest that by reason of Section 50, the Court of Appeal is obliged to hear an appeal against an order for committal notwithstanding that it was brought out of time.

65.In our judgment, Section14AA should be construed in the like manner.  Bearing in mind the purpose for imposing the leave requirement, it should be regarded as a provision regulating the manner in which the civil jurisdiction of the Court of Appeal is exercised instead of a provision going to the jurisdiction of the Court of Appeal.  On this construction, there is no incompatibility between Section 14AA and Section 50.

66.The position is even clearer if one were to examine the legislative intent for Section 50.  We were referred to the Hansard debate relating to Section 13 of the AJA.  The purpose for the enactment of Section 13 was to confer a right of appeal in respect committal for criminal contempt, which hitherto was not subject to any avenue for appeal.  The absence of avenue for appeal in that regard was also highlighted in a local case in In the matter of So Sau-chung [1966] HKLR 523.  The same mischief was identified in the legislative debate in Hong Kong when the equivalent for Section 50 was introduced first as Section 37F of the Supreme Court Ordinance in 1973.

67.It has never been the purpose of Section 50 to confer unbridled right (using the terminology of Mr McCoy) of interlocutory appeals in respect of contempt proceedings. Section 50(5) excludes the applicability of the section to conviction or sentence for contempt in the exercise of criminal jurisdiction. There is no avenue for interlocutory appeals in criminal causes or matters and this was the underlying reason why in Government of United States v Montgomery [2001] 1 WLR 196 the House of Lords was persuaded that proceedings for and appeals against restraint order under Section 77 of the Criminal Justice Act 1988 should not be regarded as criminal causes or matters, see [12], [23], [39]. There is no reason why in committal proceedings (classified as civil proceedings as explained above, thus outside the scope of Section 50(5)), the court should construe Section 50 in a way to have created such a right frustrating the purpose of Section 14AA.   

68.With the mischief of Section 50 so identified, there is absolutely no incompatibility between Section 50 and Section 14AA.  A person found to be guilty of criminal contempt can still enjoy unrestricted right of appeal under Section 50 in respect of an order for committal.  Section 14AA only requires leave (so that unmeritorious interlocutory appeals would be filtered out) when an alleged contemnor or applicant wishes to appeal against an interlocutory decision in the course of committal proceedings before the conclusion of such proceedings. There is no abrogation or qualification on the rights of appeal conferred under Section 50.

69.Similar to the position in England (and in that respect, Serumaga, supra, should be read in light of Barnet London Borough Council v Hurst, supra.), we do not see any basis for construing the phrase “in substitution for any other law relating to appeals in civil or criminal proceedings” in Section 50 as excluding the relevant rules for governing how a right of appeal should be exercised from appeals relating to committal proceedings, including the requirement of leave in Section 14AA.

70.We have therefore come to the conclusion that notwithstanding Section 50, leave to appeal is still required in respect of interlocutory orders made in committal proceedings.

71.Adopting the course suggested by Mr Yu in his oral submissions, we therefore direct that a rolled-up hearing be held on 18 and 19 August 2016 to deal with both applications for leave as well as the substantive appeals if leave were granted.

Mr Gerard McCoy SC and Mr Albert NB Wong, instructed by Kenneth Lam, Solicitors (DLA), for the respondents (appellants) in CACV 69 to 75, 125 to 127/2016

Mr Gerard McCoy SC and Ms Christine Yu, instructed by JCC Cheung & Co (DLA), for the respondents (appellants) in CACV 77 to 82, 133 to 135/2016

Mr Gerard McCoy SC and Ms Christine Yu, instructed by Ho Tse Wai & Partners (DLA), for the respondents (appellants) in CACV 83 to 89, 128 to 131/2016

Mr Benjamin Yu SC, Mr Jin Pao and Mr Martin Ho, instructed by the Department of Justice, for the applicant (respondent) in all appeals