Re Mahesh J Roy

CACV 226/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 226 OF 2015

(ON APPEAL FROM LBTC NO 2189 of 2015)

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IN RE: MAHESH J ROY

INTERVENER: SECRETARY FOR JUSTICE

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Before: Hon Cheung CJHC and Lam VP in Court

Date of Decision: 14 March 2017

Date of Handing Down Reasons for Decision: 11 April 2017

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REASONS FOR DECISION

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Hon Lam VP (giving the Reasons for Decision of the Court):

1.On 14 March 2017, at the invitation of the parties we made an order regarding the title of this appeal and the parties to it. It is an appeal against a summary decision by a presiding officer of the Labour Tribunal holding a person present in court (who was not a party to the proceedings) guilty of insulting behaviour and sentencing him to a fine of $5,000. As there is apparently no reported case in Hong Kong as to how the appeal should be intituled and who should be joined as respondent to such appeal, we decided to give reasons for making the order for future guidance.

2.The proceedings below were proceedings in the Labour Tribunal.  The appellant was a person assisting the claimant in LBTC 2189 of 2015.  At a hearing of the proceedings on 19 August 2015, the Presiding Officer found him to be guilty of insulting behaviour under Section 42 of the Labour Tribunal Ordinance Cap 25.  After hearing his counsel and the appellant on 27 August 2015, the Presiding Officer imposed a fine of $5,000.

3.The appellant, acting in person, issued a Notice of Appeal on 24 September 2015 naming the Presiding Officer as respondent in the appeal.  The Notice of Appeal was served on the Presiding Officer at the Labour Tribunal on 24 September 2015.

4.On 25 May 2016, a Government Counsel filed a Notice to Act giving notice the Secretary for Justice had been appointed to act for the Presiding Officer.

5.On 26 May 2016, the Government Counsel wrote to the Court stating that the Presiding Officer shall remain neutral in the appeal and asked to be excused from the hearing.

6.On 27 May 2016, the Secretary for Justice in his own capacity through another Government Counsel wrote to the court seeking to intervene to represent public interest and defend the due administration of justice in light of the consideration that the decision in question was in the nature of contempt of court.

7.Afterwards, legal aid was granted to the appellant.  Mr McCoy SC was assigned to act as his counsel.  On 29 September 2016, Mr McCoy filed a memorandum with the Court acknowledging that it was not correct to name the presiding officer as the respondent.  Instead, he proposed to name the respondent in the Labour Tribunal proceedings as respondent to this appeal.

8.No order had been made by the Court regarding the identity of the proper party in the appeal.  In January 2017, pursuant to listing directions of a master, the parties fixed a date for the hearing of the appeal.  The appeal is scheduled to be heard on 22 September 2017. 

9.On 15 February 2017, the parties filed a Consent Summons seeking an order that the Presiding Officer cease to be a party to the appeal.  In a joint letter of 15 February 2017, solicitors for the Appellant informed the Court that parties could not reach agreement on the identity of proper respondent to the appeal.  They sought directions from the Court.

10.After the Court gave directions for a hearing to consider the matter, the parties wrote jointly to the Court on 13 March 2017 proposing that the title of the proceedings be changed to “In re Mahesh J Roy” with the Secretary for Justice listed as intervener.  The Court endorsed that proposal on 14 March 2017.

11.In our judgment, the proper parties to appeals of this nature, like an appeal against a summary determination by a presiding judicial officer in respect of contempt in the face of court, should be the person committed for contempt and the Secretary for Justice.  The presiding judicial officer should not be a party.  Nor should the parties in the proceedings below (who are not the person committed) be involved in the appeal.

12.It is plain that the appellant should be the person committed.

13.As regards the proper respondent, the role of the Secretary for Justice in contempt of court cases is akin to the Attorney General in England.  Such role was explained by the House of Lords in AG v Times Newspaper Ltd [1974] AC 273.  The Secretary for Justice as guardian of public interest has an important duty in safeguarding the due administration of justice.  Contempt of court committed in the face of court, as is an offence under Section 42 of the Labour Tribunal Ordinance, if untrammelled, could have a serious deleterious effect on the effective administration of justice by the courts.  As Lord Morris observed in AG v Times Newspaper Ltd, supra, at p.302B to C:

“ In an ordered community courts are established for the pacific settlement of disputes and for the maintenance of law and order. In the general interests of the community it is imperative that the authority of the courts should not be imperilled and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable interference is suppressed it is not because those charged with the responsibilities of administering justice are concerned for their own dignity: it is because the very structure of ordered life is at risk if the recognised courts of the land are so flouted that their authority wanes and is supplanted.”

14.In the same case, Lord Diplock explained the role of the Attorney General in such contempt cases at p.311E to F:

“ He is the appropriate public officer to represent the public interest in the administration of justice. In doing so he acts in constitutional theory on behalf of the Crown … as ‘the fountain of justice’ and not in the exercise of its executive functions.”

15.And Lord Morris had this to say at p.306C regarding the approach that the Attorney General should adopt:

“ In considering the matters raised an Attorney-General would with complete impartiality solely be considering the public interest of maintaining the due administration of justice in all its integrity.”

16.In our judgment, these observations apply equally to the role of the Secretary for Justice in the Hong Kong context regarding contempt and section 42 cases.

17.In this connection, though we were referred to some judicial dicta suggesting that the Attorney General’s role is likened to that of amicus curiae (Lord Cross in AG v Times Newspaper Ltd, supra, at p.326 and Blanchard J in Duff v Communicado Ltd [1996] 2 NZLR 89 at p.96), we think the better view is the one put forward by Lord Diplock and Lord Morris in the above citations. 

18.Our conclusion as to the role of the Secretary for Justice is supported by similar practice adopted in similar situations in other common law jurisdictions: Maharaj v Attorney-General for Trinidad and Tobago [1977] 1 All ER 411; MacGroarty v Minister for Justice and Attorney General for Queensland [1990] LRC (Crim) 594; Toner v Attorney General for NSW [1991] NSWCA 267; Clampett v Attorney General (2009) 260 ALR 462; Farquharson v Attorney General [2016] 5 LRC 1.

19.The inappropriateness of naming the judicial officer as respondent was discussed in Re Perkins [1998] 4 VR 505.  The appropriateness of naming the Attorney General as the respondent was discussed in Clampett v Attorney General (2009) 260 ALR 462 at [71] to [81].

20.Whilst we are content to adopt the agreed course suggested by the parties in the present appeal, for the reasons canvassed above in future cases of similar nature the proper course is to name the Secretary for Justice as respondent to the appeal.

Vidler & Co, for the appellant

Department of Justice, for the intervener