Secretary for Justice v. Wong Ho Ming

CACV 259/2017

[2018] HKCA 508

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 259 OF 2017

(ON APPEAL FROM HCMP NO 798 OF 2015)

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J U D G M E N T

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Hon Poon JA (giving the Judgment of the Court) :

INTRODUCTION

1.On 23 March 2018, this Court handed down judgment [2018] HKCA 173, dismissing the respondent’s appeal against the judgment of Andrew Chan J dated 13 October 2017 whereby it was adjudged that the respondent was guilty of criminal contempt of court in failing to obey the Amended Injunction Order in the manner complained of and found to be proven by the Judge.  By a notice of motion of 30 May 2018, the respondent applies for leave to appeal to the Court of Final Appeal on the ground that the following question involved in his intended appeal is one which, by reason of its great general or public importance, ought to be submitted to the Court of Final Appeal for determination :

“      What is the requisite mens rea for criminal contempt in Hong Kong, in particular, when, as in the present case, the criminal contempt consists in the interference with the due administration of justice by obstructing or impeding a bailiff in the due execution of his duties?” (“the Question”)

2.The respondent’s application is opposed by the Secretary for Justice.  The Secretary argues that the intended appeal is not reasonably arguable and that the Question is of no great general or public importance as contended.

3.Pursuant to the court’s direction, the parties have filed written submissions.  Having considered them, we take the view that the matter can be properly disposed of on paper without an oral hearing.  We now hand down our judgment.

DISCUSSION

4.As pointed out by Mr Pao, SC for the Secretary, the Question on a proper reading consists of two sub-questions : (1) what is the requisite mens rea for criminal contempt in Hong Kong generally? and (2) what is the requisite mens rea for the criminal contempt of interference with the due administration of justice by obstructing or impeding a bailiff in the due execution of his duties?

5.In our view, question (1) is pitched at too high a level of generality.  It is simply too broad.  And it does not arise in the present case because we did not determine the requisite mens rea for all forms of criminal contempt in Hong Kong generally.  Thus question (1) is not a proper question for the Court of Final Appeals’ determination.

6.Turning to question (2), we accept that it is a question of great general or public importance. However, we are not persuaded that it is reasonably arguable.

7.We at Part D2.4 of our judgment set out the relevant principles and policy considerations as to why a basic intent is sufficient for the present form of contempt.  In his written submissions, Mr Lee, SC for the respondent, merely repeats his previous arguments that a specific intent is required, which we have firmly rejected. Mr Lee has however failed to explain why, at least on a reasonably arguable basis, we are wrong.  Mr Lee relies on R v G [2004] 1 AC 1034, per Lord Bingham at p 1055C-D and Choi Wai Lun v HKSAR [2018] 3 HKC 265, per Ribeiro PJ at [16], for the general principle that intentional or knowing performance of prohibited conduct is ordinarily an essential ingredient of guilt of a criminal offence.  But both cases concern particular criminal offences provided for by statute.  Their context is entirely different from the present form of criminal contempt.  With respect, that general principle does not really assist Mr Lee.

8.In consequence, the appellant has failed to meet the threshold under the “great general or public importance” limb.

9.Following the usual practice, we will leave the matter to the Court of Final Appeal to determine if leave should be granted on the “or otherwise” limb.

DISPOSITION

10.For the above reasons, we refuse to give the respondent leave to appeal to the Court of Final Appeal.  We accordingly dismiss his notice of motion.

11.We further order the respondent to pay the Secretary costs, summarily assessed at HK$62,000.00.

Mr Jin Pao SC, instructed by the Department of Justice, for the Applicant

Mr Martin Lee SC and Mr Hectar Pun SC, instructed by M/s JCC Cheung & Co, assigned by the Director of Legal Aid, and Mr Earl Deng and Mr Anson Wong Yu Yat, instructed by M/s JCC Cheung & Co on pro bono basis, for the Respondent