Secretary for Justice v. Cheung Kai Yin

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

CACV 69/2016

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)

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BETWEEN

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CACV 70/2016

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)

________________________

BETWEEN

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CACV 71/2016

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)

________________________

BETWEEN

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CACV 72/2016

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)

________________________

BETWEEN

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CACV 73/2016

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)

________________________

BETWEEN

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CACV 74/2016

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)

________________________

BETWEEN

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CACV 75/2016

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)

________________________

BETWEEN

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CACV 77/2016

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)

________________________

BETWEEN

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CACV 78/2016

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)

________________________

BETWEEN

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CACV 79/2016

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)

________________________

BETWEEN

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CACV 80/2016

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)

________________________

BETWEEN

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CACV 81/2016

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)

________________________

BETWEEN

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CACV 82/2016

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)

________________________

BETWEEN

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CACV 83/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 83 OF 2016s

(ON APPEAL FROM HCMP NO 774 OF 2015)

________________________

BETWEEN

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CACV 84/2016

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)

________________________

BETWEEN

________________________

CACV 85/2016

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)

________________________

BETWEEN

________________________

CACV 86/2016

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)

________________________

BETWEEN

________________________

CACV 87/2016

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)

________________________

BETWEEN

________________________

CACV 88/2016

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)

________________________

BETWEEN

________________________

CACV 89/2016

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)

________________________

BETWEEN

________________________

CACV 125/2016

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)

________________________

BETWEEN

________________________

CACV 126/2016

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)

________________________

BETWEEN

________________________

CACV 127/2016

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)

________________________

BETWEEN

________________________

CACV 128/2016

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)

________________________

BETWEEN

________________________

CACV 129/2016

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)

________________________

BETWEEN

________________________

CACV 130/2016

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)

________________________

BETWEEN

________________________

CACV 131/2016

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)

________________________

BETWEEN

________________________

CACV 133/2016

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)

________________________

BETWEEN

________________________

CACV 134/2016

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)

________________________

BETWEEN

________________________

CACV 135/2016

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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BETWEEN

(Heard together)

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REASONS FOR JUDGMENT

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The Court:

1.These are applications for leave to appeal against the orders of Chow J made in a number of applications for committal for contempt in respect of allegations of obstruction of the execution of injunction orders in what is generally known in Hong Kong as the “Occupy Central” saga though the incidents concerned took place in Mongkok.  Although they were filed as appeals, for reasons already set out in a judgment of this Court, differently constituted, of 1 August 2016 leave to appeal is required.  Mr McCoy SC representing all the respondents applied for leave before us on 18 August 2016.  The underlying applications for committal can broadly be put into 2 categories:

(a) Those arising from the execution of the order of Au J of 10 November 2014 in HCA 2104 of 2014, which can conveniently be referred to as the Taxi cases[1];

(b) Those arising from the execution of the order of Au J of 10 November 2014 in HCA 2086 of 2014, which can conveniently be referred to as the Minibus cases[2].

2.The committal proceedings in the Taxi cases are HCMP 774, 776 to 781, 783, 784, 787 to 789, 791 to 798 of 2015.  The history of those proceedings was set out in the judgment of Chow J of 8 March 2016.  In the context of these leave applications, it is only necessary to mention that originally leave to apply for committal was granted on 16 April 2015.  However, that leave lapsed because although the Secretary for Justice [“SJ”] did issue the originating summonses on 29 April 2015 within the time prescribed, those acting for him failed to comply with the requirement of “entering” the same for hearing within the time stipulated in Order 52 Rule 3(2).  After that, on 22 July 2015, SJ applied for ex parte leave to amend the original statements filed in the applications for the original leave and made another application for committal for contempt proceedings to be brought on the basis of the amended statements.  The need for amendment of the statements was explained in an affirmation of the Acting Senior Government Counsel.  In a nutshell, it was due to some errors in the evidence of the Assistant Chief Bailiff, which necessitated corrections to be made to the statements.  On 30 July 2015, Chow J granted leave a second time. Pursuant to such leave, SJ issued fresh originating summonses against the respondents on 3 and 5 August 2015.  The originating summonses were entered for hearing on 7 August 2015.   The respondents then took out summonses seeking to set aside the order of 30 July 2015.  By the order of Chow J of 8 March 2016, the learned judge refused to set aside the order of 30 July 2015.  The respondents therefore sought to appeal against the order of 8 March 2016 in CACV 69-75, 77-89 of 2016 [“the Taxi Appeals”].

3.The committal proceedings in the Minibus cases are HCMP 2917, 2920 to 2923, 2926, 2928, 2929, 2931, 2932 of 2015[3]. When proceedings were first brought in March 2015, they were originally assigned case numbers as HCMP 490, 494 to 497, 500, 502 to 503, 505 and 506 of 2015.  The initial history of the Minibus cases was similar to the Taxi cases except that after the lapse of the leave (as held by the judge in Secretary for Justice v Cheng Kam Mun [2015] 5 HKLRD 41), there was no amendment of the original statements.  Instead SJ filed fresh sets of statements in making applications for leave a second time in November 2015.  Thus the registry assigned new HCMP numbers to the cases.   The judge granted fresh leave on 11 November 2015 and the originating summonses were issued on 25 November 2015 pursuant to such leave and they were entered for hearing on the same date.  The respondents applied to set aside the leave granted on 11 November 2015.  By an order of Chow J of 6 May 2016, the learned judge dismissed their applications.  The respondents therefore sought to appeal against the order of 6 May 2015 in CACV 125-131, 133-135 of 2016 [“the Minibus Appeals”].

4.At this juncture, we should clarify that pursuant to the directions given by the Court on 24 June 2016, the Taxi Appeals as well as the Minibus Appeals were before the Court at the hearing of 19 July 2016 and submissions were advanced at that hearing by Mr McCoy on behalf of all the respondents in these appeals.  Thus, as can be seen from the title of the judgment of 1 August 2016, that determination binds all the parties in the Taxi Appeals and the Minibus Appeals notwithstanding that [1] of that judgment only referred to the Taxi Appeals.  Very properly, no point was taken by Mr McCoy and Mr Yu SC in this respect at the hearing before us on 18 August 2016.

5.After hearing submissions from counsel, we refused to grant leave to appeal to the respondents.  The appeals were dismissed with costs.  We now give reasons for our determination.

6.In his written submissions, Mr McCoy helpfully identified the following as the issues in these proposed appeals:

(a) Whether the effect of the lapse of leave is a procedural irregularity which can be cured by Order 2 Rule 1 and Order 3 Rule 5, or whether such lapse nullifies the existing proceedings altogether [“the Lapse Issue”];

(b) Whether on the facts of these applications, the court should import or apply analogously the 6-month ‘time-bar’ of section 26 of the Magistrates Ordinance, Cap 227 consistently with the principle of legality, arts 10 and 11 of the Hong Kong Bill of Rights [“HKBoR”] and legislative intent [“the Time-bar Issue”];

(c) Whether upon an ex parte application to obtain leave to initiate criminal contempt proceedings, the fact that the application is necessitated by the lapse of previously obtained leave is materially relevant for disclosure; and if it is relevant, whether such disclosure can be satisfied in the absence of an express statement by way of affidavit or skeleton submissions [“the Non-Disclosure Issue”];

(d) Whether the arrests and charges of the respondents for contraventions of section 23 of the Summary Offences Ordinance [“SOO”] created a legitimate expectation that the same protections afforded in the criminal Magistracy jurisdiction would analogously apply [“the Legitimate Expectation Issue”].

7.We can dispose of the Legitimate Expectation Issue shortly.  As pointed out by Mr Yu, the evidence shows that the respondents were arrested for contraventions of section 23 of SOO as well as the common law offence of criminal contempt.  Thus, an argument of legitimate expectation premised on the respondents being arrested only for the former cannot succeed.  We shall examine the history of the charging of the respondents and the withdrawal of those charges in the magistrates’ courts.  In light of such history, committal for criminal contempt has always been an option in the minds of all involved and clear warnings were given to the respondents of the same.  There had never been any representation that prosecution under section 23 of SOO was the only course to be taken.  Against such background, Chow J must be right in holding at [41] of the judgment of 6 May 2016 in the Minibus cases that there is no promise or practice giving rise to any legitimate expectation as contended by Mr McCoy. In any event, Mr McCoy readily acknowledged in his oral submissions that this line of argument served only as an adjunct to the Time-bar Issue and it could not by itself take the respondents’ case further.

8.We shall now examine the other issues separately.

The Lapse Issue

9.Mr McCoy confirmed in his oral submissions that he accepted the court has the power to grant fresh leave notwithstanding the lapse of leave previously granted.  In this respect, we respectfully agree with the analysis of Chow J in his judgment in the Taxi cases at [23], viz. the legal consequence of non-compliance with Order 52 Rule 3(2) is a matter of statutory construction by reference to the rules in Order 52, and his conclusion at [33] that the court must have jurisdiction to entertain fresh leave applications.  Hence, this issue does not arise in the Minibus Appeals.

10.The essence of counsel’s argument is that with the lapse of the first leave in the Taxi cases, the proceedings came to an end and they cannot be revived by an amendment of the statements.  If the SJ wished to re-start committal proceedings, counsel submitted that he had to do so by way of a fresh set of proceedings instead of making applications for fresh leave in existing proceedings.

11.On final analysis, Mr McCoy’s argument hinges on the fact that unlike proceedings in the Minibus cases, the proceedings in the Taxi cases continued to use the same case numbers.

12.With respect, this is an unduly formalistic way to approach the matter.  As held by Chow J at [36] in his judgment in the Taxi cases, the purpose of the leave requirement in Order 52 Rule 2(1) is to avoid persons being harassed by applications for committal which are either obviously unfounded or oppressive, see Fabrique Ebel Societe Anonyme v MBO Far East (HK) Ltd [1985] 1 HKC 166 at p.168E-G. We would add that the court retains an overall discretion in deciding whether committal proceedings are appropriate in the particular circumstances of the case since in view of the potential penal consequences, they should only be deployed as a last resort.  The requirement of leave also serves a filtering function in this regard.

13.The corollary of the above analysis as to the function of the leave requirement is that committal proceedings could not be brought without leave.  Though the practice in the court registry is to assign an action number for a leave application, and if leave is granted the same action number is adopted for the committal proceedings, on strict analysis the application for leave is only preliminary to the actual commencement of the committal proceedings.  The actual commencement of the committal proceedings is brought by the originating summons, see Order 52 Rule 3(1).  The originating summons, not the application for leave, is the originating process, see Order 5 Rule 1.  The originating summons is the first document in the committal process addressing a respondent.  The Order 52 Rule 2(2) statement and affidavit in support of the leave application are to be served together with the originating summons.  The rules do not require service of such statement and affidavit before the service of the originating summons.

14.Order 52 Rule 3(2) provides for the lapse of leave if the originating summons is not entered for hearing within 14 days after the grant of leave.  Upon the lapse of leave, Chow J held in Secretary for Justice v Cheng Kam Mun, supra that by reason of the criminal nature of criminal contempt proceedings, time could not be extended.  Effectively, that means the end of the committal proceedings because without any extension of time, with the lapse of leave, the originating summons cannot be heard.  In coming to that conclusion, Chow J distinguished the decision in Effiscient v Lehman [2012] 3 HKLRD 671 on the basis that that case concerned civil contempt where the power of the court to extend time was not disputed.

15.In this Court’s judgment of 1 August 2016, it was held that committal proceedings for criminal contempt has a civil procedural character though by reason of the penal consequences in contempt proceedings (be it civil or criminal contempt) the rights under arts 10 and 11 of the HKBoR are engaged.  In light of that, there is scope for re-examining Effiscient v Lehman, supra against the rights under arts 10 and 11 of the HKBoR and its applicability in the context of committal proceedings for criminal contempt.  However, as explained below, we are satisfied that it is not necessary for us to do so in the present context (these being leave applications) and such exercise must be left for another occasion.

16.The resolution of this point is unnecessary because even assuming (and we are not deciding that it must be so, but assuming most favourably to the respondents’ position[4]) that the true effect of arts 10 and 11 is to exclude the power to extend time in committal proceedings for contempt (be it civil or criminal), the lapse of leave must lead to the end of the committal proceedings commenced by the originating summons.  This is exactly what Mr McCoy submitted had happened in the present cases.

17.Mr Yu did not dispute that the committal proceedings under the first set of originating summons in the Minibus cases had come to an end upon the lapse of the first leave[5]. Thus, it is not necessary for SJ to rely on Effiscient v Lehman, supra.

18.On this analysis, there is no need to get embroiled in arguments as to the applicability of Order 2 Rule 1 and Order 3 Rule 5 and whether the lapse rendered the committal proceedings irregular instead of a nullity.

19.The real point under the Lapse Issue in the Taxi Appeals is whether SJ could obtain fresh leave under the same action numbers and after that commence fresh committal proceedings by issuing fresh originating summonses.  There is nothing in the rules to prevent this course from being taken.

20.In his judgment of 8 March 2016, Chow J explained at [41] to [45] his reasons for holding that the applications on 22 July 2015 were fresh leave applications.  In particular, at [42], he said:

“ … It seems to me that the assignment of a case number to any cause or matter is merely an administrative matter, and has little bearing on the question of whether the 2^nd Leave applications ought properly to be treated as fresh leave applications.”

21.With respect, when one examines Mr McCoy’s submissions on this issue against the above analysis, the primary foundation of these submissions is that because the same case number was adopted, they are the same proceedings burdened by the fate of the lapse of the first leave, irrespective of the fact that fresh leave has been granted and a fresh originating summons has been issued.

22.We have no hesitation in rejecting such a premise and we agree with Chow J’s analysis as to the true nature of the applications on 22 July 2015.  With its foundational premise shown to be demonstrably flawed, the whole edifice of counsel’s arguments on the Lapse Issue collapsed.

23.We hold that by the fresh applications on 22 July 2015, and with fresh leave being granted on 30 July 2015, SJ complied with Order 52 Rule 2 in securing leave before the commencement of committal proceedings against the respondents.  The fresh committal proceedings were brought by the fresh originating summonses in August 2015 which were entered for hearing within time on 7 August 2015.

24.For these reasons, there is no reasonable prospect of success in the appeals based on the Lapse Issue.

The Non-Disclosure Issue

25.It is convenient to address the Non-Disclosure Issue before we come back to the Time-bar Issue.  Mr Wong (who argued this issue on behalf of the respondents) submitted that the fact that fresh leave was necessitated by the lapse of the previous leave on account of non-compliance with Order 52 Rule 3(2) was a material matter which should be disclosed explicitly to the judge in the materials placed before him in the ex parte applications for fresh leave.  He also submitted that Chow J erred in holding that the lapse of the previous leave was self-evident. Counsel further drew our attention to the reason given on behalf of SJ for the need for leave, that is, it was put on the basis of the correction of the statement rather than lapse of the previous leave.

26.The duty of full and frank disclosure has to be considered and applied with reference to the particular circumstances of the case.  As a general proposition, we agree with the judge that if an applicant has reasonable grounds for believing a procedural step in existing proceedings is self-evident to the judge hearing the ex parte application, the duty does not require such self-evident matter to be specifically mentioned.  Whether a particular procedural step is self-evident must be case specific.  In the context of the present cases, it is difficult to see how the lapse of the previous leave could have escaped the judge’s attention when fresh leave was applied on 22 July 2015 in the Taxi cases around roughly the same time when applications for extension of time were made on 14 July 2015 by SJ in Secretary for Justice v Cheng Kam Mun, supra [7].  That application came before the judge for directions on 25 July 2015, see Secretary for Justice v Cheng Kam Mun, supra [9].  Against such procedural history, the non-compliance with Order 52 Rule 3(2) must have been very much on the mind of the judge when fresh leave was granted on 30 July 2015.

27.It is not very clear whether the same point is taken in the context of the Minibus Appeals.  It was apparently not a ground relied upon before Chow J, see the judgment below of 6 May 2016, [9].  In any event, the argument has no merit in the context of the Minibus Appeals either. The fresh leave in the Minibus cases was applied in November 2015.  In light of the history in the Taxi cases, judgment in Secretary for Justice v Cheng Kam Mun, supra was handed down by the judge on 1 September 2015, fresh applications with new action numbers were assigned in the Minibus cases, and the reason why fresh leave was necessary was obvious.

28.Further, there is absolutely no basis to doubt the evidence on the necessity to amend the statement in the Taxi cases to correct the factual errors.  By reason of that, according to well established practice, fresh leave had to be obtained and the original sets of committal proceedings (even if there were no hiccups in terms of non-compliance with Order 52 Rule 3(2) resulting in the lapse of original leave) would have to be aborted.  The judge had to examine the fresh application for leave by assessing the amended statement and the prevailing circumstances when the application was made.  In the absence of any suggestion that the amendment of the statement was made as a disguise to cover up the lapse of the original leave (and we have to say there is absolutely no evidence to support such a suggestion), we agree with the judge that the lapse of the original leave could not be material.

29.Notwithstanding the valiant efforts of Mr Wong, we do not see any reasonable prospect of success on the Non-Disclosure Issue.

The Time-bar Issue

30.The respondents argue that since the conduct justifying a committal for contempt under Order 52 Rule 1 of the Rules of the High Court was “exactly the same” as that falling within section 23 of SOO, the court should by analogy and in the interests of justice apply the 6-month time limitation, which would have applied to the statutory offence by virtue of section 26 of the Magistrates Ordinance, to the committal for contempt under the Rules of the High Court.  The facts giving rise to the respondents’ arrests under section 23 of SOO took place on 25 November 2014.  Since the application for leave to commit the respondents for contempt in the Taxi Appeals upon an amended Statement of Facts was only made on 22 July 2015, whereas the re-application to commit the respondents for contempt in fresh proceedings in the Minibus Appeals was only filed on 6 November 2015, both original applications for leave (made within 6 months) having lapsed, the further applications for leave to commit for contempt would have been time-barred had the 6-month time limitation in section 26 of the Magistrates Ordinance been applied.

31.It is submitted by Mr McCoy that the protections put in place by the legislature in respect of the summary offence should be implied to a criminal contempt under the Rules of the High Court: namely, the 6-month time limitation under section 26 of the Magistrates Ordinance and the maximum penalty applicable to a breach of section 23 of SOO.  That is because SJ has from the outset regarded the two offences as two sides of the same coin; or “handcuffed together”, as Mr McCoy more graphically put it.  The particulars of the criminal contempt described in the Statement of Facts for the purposes of Order 52 Rule 2(2) were described (in respect of the putative respondent Chan Ao-tien) as follows:

“ Particulars

41. As revealed from available evidence, it is clear that the putative Respondent was found present in the Area during the execution of the Injunction Order:-

Approximate Time	Particulars of the Acts of the putativeRespondent
2:33 pm	The putative Respondent stood in front of the Police check line next to PW6 at Argyle Street near the junction of Nathan Road while PW6 issued the verbal warning as referred to in paragraph 34 above[6].
2:34 pm	The putative Respondent pretended to leave by walking in slow motion/jogging on the spot.
About 3:06 pm	The putative Respondent was lift (sic) up and arrested as he refused to leave the Area despite repeated warnings.”

32.These particulars, it is argued, could just as equally apply to the offence of ‘Resisting or obstructing a public officer or other person lawfully engaged in a public duty’ under section 23 of SOO as they could to a criminal contempt of an order of the court sought to be enforced by a court bailiff.  Indeed, Mr McCoy cites in support of his argument the terms of the letter from Mr David Leung, Deputy Director of Public Prosecutions, to the First Clerk at Kowloon City magistrates’ court dated 6 January 2015, giving notice of the prosecution’s intention to withdraw the proceedings under section 23 of SOO in favour of pursuing proceedings to commit the 17 defendants for criminal contempt.  Mr Leung wrote:

“ It is not in the interest of justice to proceed with both the criminal contempt proceedings and the criminal charge against the defendants. The facts giving rise to those proceedings are exactly the same. The Secretary for Justice will not in any event seek to have these 17 defendants punished twice for the same acts. There is no public interest in duplicating the proceedings.”

33.In respect of the other 25 defendants similarly charged, Mr Leung wrote another letter on 8 January 2015 in similar terms, also referring to “the facts giving rise to the contempt and criminal proceedings” being “exactly the same”.  However, it is worth noticing that in this letter, SJ’s reasons were articulated by Mr Leung as follows:

“ The Rule of Law ought to be upheld. In the interests of justice, it is more appropriate to bring the defendants back before the Court whose order s/he openly disobeyed to be dealt with by the Court as the Court may deem appropriate. The Rule of Law, and the authority of the Court, are best safeguarded and seen to be safeguarded this way.”

34.It may be said, therefore, that SJ saw the distinction between the two offences, not so much in terms of the facts underpinning them, but in terms of their relative importance in upholding the Rule of Law, by attaching proper significance to the breach of a court order and by visiting an appropriate response to such an open breach in the eyes of the public.

35.The cornerstone of Mr McCoy’s argument is that civil contempt and criminal contempt are very different animals, which are defined by the nature of the conduct giving rise to the contempt.  He relies on the judgment of the Supreme Court in Director of Serious Fraud Office v O’Brien [2014] AC 1246, in particular at paras 35-42, for the following propositions:

(i) Civil contempt is not itself a criminal offence and is coercive in nature;

(ii) Criminal contempt is considered a criminal offence and is punitive in nature;

(iii) The question of whether a contempt is a criminal contempt does not depend on the nature of the proceeding or court, but on the nature of the conduct;

(iv) A criminal contempt can therefore arise out of civil proceedings just as a civil contempt can arise out of criminal proceedings.

36.Therefore, since the nature of the conduct as between an offence contrary to section 23 of SOO and a criminal contempt is, and has been expressly regarded by SJ as “exactly the same”, he argues that such protections as would have applied to the substantive criminal offence should be imported to protect those committed for contempt arising out of the same facts.  Support for such a contention is drawn from the judgment of Sir Gerrard Brennan NPJ in Kao Lee & Yip v Koo Hoi Yan (2009) 12 HKCFAR 830, at para 6:

“ Although the better view is that civil contempt is not a criminal offence, the punitive aspect of civil contempt proceedings has “caused the courts to treat those in peril in such proceedings in a like manner to those in peril in criminal proceedings” (Cobra Golf Inc v Rata [1998] Ch 109, 129, 155). The penalty to which a person who fails or neglects to obey an order of the court is exposed imports many of the procedural safeguards which are characteristic of proceedings for a criminal offence.” (Emphasis supplied)

37.Thus, it has been held by the English Court of Appeal in Slade v Slade [2010] 1 WLR 1262 that a court sentencing a contemnor for conduct which has already been the subject of criminal proceedings will wish to ensure that he is not punished twice for the same conduct.  In Siemer v Solicitor-General [2010] 3 NZLR 767, the Supreme Court of New Zealand held that the procedural protection under the New Zealand Bill of Rights Act 1990 to trial by jury for any person charged with an offence where the penalty is or includes imprisonment for more than 3 months, should not be withheld from someone facing proceedings for contempt, where the sentence of imprisonment may be longer than 3 months’ imprisonment.

38.Mr McCoy places considerable reliance on the decision of the House of Lords in R v Rimmington [2006] 1 AC 459, where the Crown “had deliberately chosen the common law offence (of causing a public nuisance) 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”.[7]  Lord Rodger of Earlsferry held, at 491D, that while there was no suggestion of bad faith on the part of the prosecution, it was not for the Crown:

“ 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.”

39.Lord Bingham of Cornhill put the matter in this way, at 479D-E:

“ 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.”

However, he added, at 479G-H:

“ 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.”

40.For his part, Mr Yu points to this latter passage and, in particular, its concluding conditional clause, to suggest that there may be exceptions to the general rule.  It should also be remembered that Rimmington, although it involved the interplay between a statutory offence and its common law equivalent, was not concerned with criminal contempt.  The notion of interfering with the administration of justice by breaching a court order, therefore, did not arise.  Mr Yu is undoubtedly correct when he submits that no direct authority has been cited in support of implying such a time limitation to criminal contempt.

41.However, Mr McCoy’s argument must hinge on the premise that the conduct which amounts to a criminal contempt is to all intents and purposes the same as that which is engaged by section 23 of SOO.  We do not accept that premise, either in terms of the conduct impugned by each offence and its respective sanction, or in the relative seriousness of each offence.

42.It is true that section 23 of SOO would include the obstruction of a bailiff executing a court order.  But, in reality and practice, section 23 catches a wide variety of conduct; for example, hawkers making the duties of enforcement officers more difficult, the obstruction of those tasked with enforcing notices or orders under various environmental protection, or building and construction, legislation, and those refusing to comply with an order of distraint or forfeiture being executed by a bailiff.  To describe these various incarnations of a section 23 offence as less serious types of criminal conduct is not to trivialise the offence but to emphasise that it is a summary offence which, unlike a criminal contempt, does not engage in quite the same way the administration of justice and the authority of the court in the context of the Rule of Law.  As the Supreme Court in O’Brien put it, at paragraph 39:

“A criminal contempt is conduct which goes beyond mere non-compliance with a court order or undertaking and involves a serious interference with the administration of justice.”

43.This statement, augmented by the word “serious”, is consistent with the characterisation of criminal contempt by Lord Diplock in Attorney-General v Leveller Magazine Ltd and Others [1979] AC 440, at 449:

“ … although criminal contempts of court may take a variety of forms they all share a common characteristic: they involve an interference with the due administration of justice either in a particular case or more generally as a continuing process. It is justice itself that is flouted by contempt of court, not the individual court or judge who is attempting to administer it.”

44.Sir John Donaldson MR in Attorney-General v Newspaper Publishing Plc and Others [1988] 1 Ch 333, regarded the traditional distinction between civil contempt and criminal contempt (which, in The Law of Contempt by Borrie & Lowe (4^th Ed, 2010) at para 1.3, is broadly differentiated as ‘disobedience contempt’ and ‘interference contempt’) as misleading, preferring, at 362C, to distinguish between:

“ (a) conduct which involves a breach, or assisting in the breach, of a court order, and (b) any other conduct which involves an interference with the due administration of justice, either in a particular case or, more generally, as a continuing process, the first category being a special form of the latter, such interference being a characteristic common to all contempts: per Lord Diplock in Attorney-General v Leveller Magazine Ltd [1979] AC 440, 449. What distinguishes the two categories is that in general conduct which involves a breach, or assisting in the breach, of a court order is treated as a matter for the parties to raise by complaint to the court, whereas other forms of contempt are in general considered to be a matter for the Attorney-General to raise. In doing so, he acts not as a government minister or legal adviser, but as the guardian of the public interest in the due administration of justice.”

45.Whatever the precise parameters of the distinction - and there is an obvious element of overlap -  we consider that a criminal contempt is engaged where there has been a serious interference with the due administration of justice or a serious affront to the authority of the courts, as distinct from a breach of, or non-compliance with, a particular court order.  The terms of SJ’s letter of 8 January 2015 resonate with that distinction, requiring SJ, as guardian of the public interest, to safeguard both the Rule of Law and the authority of the courts which, as he saw it, had been openly defied.

46.In this connection, we must reiterate the nature of the committal proceedings under Order 52 in respect of criminal contempt as discussed in the judgment of this Court on 1 August 2016 at [21] to [23].  It is the exercise of the court’s inherent power to discharge its constitutional duty to maintain a fair and effective administration of justice.  Criminal contempt proceedings brought under Order 52 are the means for the court to ensure that conduct or activities calculated to undermine the administration of justice are properly addressed.  In terms of the time limit for commencement of proceedings, these considerations are not present in a criminal prosecution of an offence under section 23 of the SOO or other offences in the magistrates’ courts.

47.Nor do we accept, for the same reasons, that the sentencing court on a committal for contempt is confined or constrained by the sentence which would be appropriate to the statutory offence.  Certainly, Wilson LJ in Slade v Slade was of the view, at 1269H-1270A, that:

“ … the second court should not so much reflect “the prior sentence” in its judgment as decline to sentence for such of the conduct as has already been the subject of punishment in the criminal court.  It follows that, even if a civil judge were to regard the punishment given by the criminal court for certain conduct as too lenient, it would be improper for him to use his power of committal in respect of that selfsame conduct in order to top up the punishment to what he regards as a proper level. What he must do is to sentence only for such conduct as was not the subject of the criminal proceedings.”

48.Wall LJ, however, put the matter slightly differently.  He held, at 1273A, that:

“ … sentences for contempt of court should not be “manifestly discrepant” with sentences passed in criminal proceedings for comparable offences.”

49.The Court in Slade v Slade was concerned with various breaches of an undertaking given by the wife that she would not harass or pester her husband, nor would she communicate with him in any way save through solicitors.  One of her six breaches of that undertaking resulted in both criminal proceedings in the magistrates’ court for criminal damage to the husband’s motorcycle, for which she was sentenced to probation for 12 months and ordered to pay compensation of GBP400, and proceedings for contempt in the County Court, for which she was sentenced to 18 months’ imprisonment.  The Court approved and applied its earlier decision in Hale v Turner [2000] 1 WLR 2377, in which Hale LJ (as Baroness Hale of Richmond then was), giving the judgment of the Court, had set out ten propositions, the ninth of which, at 2381E-F, was:

“ In many cases the court will have to bear in mind that there are concurrent proceedings in another court based on either the same facts, or some of the same facts, which are before the court on the contempt proceedings. The court cannot ignore those parallel proceedings. It may have to take into account their outcome in considering what the practical effect is upon the contempt proceedings. They do have different purposes and often the overlap is not exact, but nevertheless the court will not want, in effect, the contemnor to suffer punishment twice for the same events.”

50.However, before articulating that and the other nine propositions, Hale LJ had prefaced her remarks by saying, at 2380F:

“ In making those points I would wish to emphasise that I do so only in the context of family cases. Family cases, it has long been recognised, raise different considerations from those elsewhere in the civil law. The two most obvious are the heightened emotional tensions that arise between family members and often the need for those family members to continue to be in contact with one another because they have children together or the like. Those two factors make the task of the court, in dealing with these issues, quite different from the task when dealing with commercial disputes or other types of case in which sometimes, in fact rarely, sanctions have to be imposed for contempt of court.”

51.Hale LJ had earlier made clear, at 2380E:

“ … I would not wish to suggest that there should be any general principle that the statutory provisions relating to sentencing in ordinary criminal cases should be applied to sentencing for contempt. The circumstances surrounding contempt cases are much more various and the objectives underlying the court's actions are also much more various.”

52.Our analysis of the above authorities, which are relied upon for the contention that the twin protections applicable to the statutory offence, namely time limitation and penalty, should be implied or imported to a criminal contempt, serves to demonstrate that any analogy between the two offences is impracticable and unrealistic because one is not comparing like with like.  In our judgment, the analogy breaks down when one considers the gravamen of the respondents’ conduct, its consequences for the administration of justice, its effect on public confidence in the courts, and the policy underscoring its sanction.  Consequently, we see no warrant for importing either the time limitation or the maximum penalty applicable to section 23 of SOO to criminal contempt.

53.Although it does not form part of the reasoning for our decision, it is nevertheless instructive to analyse how the two types of offence are initiated.  Summary offences are commenced by the making of a complaint or the laying of an information: see section 8 of the Magistrates Ordinance.  However, as with proceedings by way of voluntary bill, there is no requirement for making any complaint or laying any information in respect of a committal for contempt.  The respondents were arrested on 25 November 2014 both for the statutory offence of resisting or obstructing a public officer, contrary to section 23 of SOO, and for criminal contempt.  As we have seen, the clerk to the magistrates’ court was informed by two letters on behalf of SJ, dated 6 and 8 January 2015 respectively, that the offence under section 23 of SOO was being withdrawn and proceedings for criminal contempt based on facts said to be “exactly the same” instituted in its place in the High Court.  It was also said in each letter that Chow J had already been informed of the Secretary for Justice’s decision.

54.We would observe that had it been necessary, which legally it was not, to make a complaint or lay an information in respect of a committal for contempt in the magistrates’ court, or indeed any other court, these letters would arguably have constituted the timeous laying of an information in relation to that offence, even though that may not have been the writer’s intention: see R v Kennet Justices, ex parte Humphrey and Wyatt [1993] Crim LR 787, where it was held that:

“ What was relevant was whether what was done fulfilled the requirements relating to the laying of informations, and not whether the prosecutor intended to lay an information, or whether the clerk thought that that was what was being done.”

55.What is required on the making of a complaint or the laying of an information is set out in the Magistrates Ordinance itself.  By section 10(3) of the Magistrates Ordinance:

“ Every such complaint or information may be made or laid by the complainant in person or by his counsel or other person authorized in that behalf.”

And, by section 75(1):

“Every complaint or information alleging the commission of an indictable offence shall be in writing and shall contain or consist of a statement of the offence alleged to have been committed, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence.”

56.It must be remembered that section 26 of the Magistrates Ordinance imposes a time limitation for the making of a complaint or the laying of an information, not for the making of a charge or for the first appearance of a defendant before the court to answer the charge.  As Lord Roskill, with whose judgment all members of the House of Lords agreed, explained in R v Manchester Stipendiary Magistrate, ex parte Hill [1983] AC 328, at 342F-343B:

“ … it is of crucial importance to appreciate that the laying of an information is a matter for the prosecution just as the making of the complaint is a matter for the complainant. In each case it is for the prosecutor or the complainant to decide how the information or how the complaint shall be formulated. I agree with the Divisional Court in the present cases that the commencement of criminal proceedings lies in the hands of the prosecutor. It is, in my opinion, the prosecutor's duty, if he wishes to prosecute, to prepare and lay the information before the magistrates’ court, which means a justice of the peace or the clerk to the justices. The laying of an information before or the making of a complaint to a justice of the peace or the clerk to the justices to my mind means, in reference to a written information or complaint, procuring the delivery of the document to a person authorized to receive it on behalf of the justice of the peace and the clerk to the justices. The acts of delivery and receipt are ministerial, and I see no reason why the justices of the peace or the clerks to the justices should not delegate to an appropriate subordinate authority to receive the information which the prosecutor desires to deliver. It can sensibly be inferred that any member of the staff in the office of the clerk to the justices authorized to handle incoming post has such authority. Accordingly, once the information has been received at the office of the clerk to the justices, which today in most cases is likely to be at the magistrates’ court house, the information will, in my view, have been laid. No more is required of the prosecutor to launch the intended criminal proceedings. Similarly with a complaint - once the complaint is received at the office of the clerk to the justices no more is required of the complainant.

What happens thereafter is not within the province of the prosecutor or the complainant but of the court.”

57.He concluded, at 345F-G:

“ … if your Lordships agree with me that that information is made when it is received at the office of the magistrates’ court and is the first step to be taken towards the initiation of the prosecution irrespective of whether it is after receipt the basis of an application for a summons, it follows that in the case of the present appeals each of the informations in question was timeously laid.”

58.Accordingly, if the argument is that the time limitation under section 26 of the Magistrates Ordinance is to be borrowed and applied to a committal for contempt, the limitation depends on the timeous making of the complaint or the laying of the information, which information has arguably been laid within 6 months by virtue of the Secretary for Justice’s letters; even though it was not necessary to lay an information as such in respect of the committal for contempt.  Equally if the argument is that a committal for contempt requires an application for leave, to which the same 6-month limitation in respect of summary offences should analogously be implied, then it should be recognised that it is a wholly different mechanism.

59.In simple terms, what is required to be done within 6 months in order to commence proceedings for a summary offence is not the same exercise that is required in order to commence a committal for contempt.  The former requires the laying of an information: the latter does not.  The former does not require the leave of the court: the latter does.  Again, such a procedural analogy is difficult to apply when we are not comparing like with like.

60.Furthermore, if the policy behind the 6-month time limitation is that for minor offences, there is an onus on the prosecution to act expeditiously, so that the court, and perhaps also the defendants, know that proceedings are to be instituted and can respond promptly to them, a committal for contempt, particularly a criminal contempt, could hardly be characterised as minor.  Moreover, the fact is that the respective letters from SJ were copied to each of the relevant respondents and they would have clearly known of his intentions.   Indeed, the defendants will have known from the moment of their arrests that their committal for contempt was one of the possibilities envisaged[8] and, from the moment of their receipt of the respective copy of SJ’s letter, that proceedings for their committal for contempt would be instituted in place of the summary offence, which was to be withdrawn.

61.The purpose of SJ withdrawing the statutory offence but pursuing the committal for contempt was plainly not, as in Rimmington, to “devise a strategy to avoid”[9] the inconvenience of the time limitation, which would have applied to the statutory offence.   Given the complete absence of bad faith on the part of SJ, which Mr McCoy accepts, and the fact that the respondents have always known that they faced both offences, we see even less reason why a time limitation, designed to deal with minor summary offences, should be borrowed and applied to a wholly different and more serious offence affecting the administration of justice and the authority of the court.

62.In our judgment, the Time-bar Issue cannot present a reasonably arguable appeal point.

Disposition

63.We therefore refused to grant leave to appeal in all the cases before us.  In the absence of leave, the appeals were dismissed accordingly.

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

Mr Gerard McCoy SC and Mr Albert NB Wong, instructed by Kenneth Lam, Solicitors, assigned by Director of Legal Aid, for the respondents in CACV 69 to 75, 125 to 127/2016

Mr Gerard McCoy SC and Ms Christine Yu, instructed by JCC Cheung & Co, assigned by Director of Legal Aid, for the respondents in CACV 77 to 82, 133 to 135/2016

Mr Gerard McCoy SC and Ms Christine Yu, instructed by Ho Tse Wai & Partners, assigned by Director of Legal Aid, for the respondents in CACV 83 to 89, 128 to 131/2016