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Sun Min and Others v. Chu Kong

Read the full judgment text of FAMV 113/2022 on BabelCite. This FAMV judgment was delivered on 18 July 2022 before Mr Justice Fok PJ, Mr Justice Lam PJ and Mr Justice Tang NPJ.

Civil procedure – criminal contempt – committal proceedings – private litigant – role of Secretary for Justice – leave to appeal – Court of Final Appeal – Questions 1 to 4 – Whether Secretary for Justice has exclusive right to bring criminal contempt proceedings – Whether private litigant must consult Secretary for Justice before bringing committal proceedings under Order 52 of the Rules of the High Court – Whether private litigant must join Secretary for Justice as party or lay facts before court if Secretary declines to act – Whether leave granted to Mr. Chu to commence committal proceedings should be set aside for procedural defects or non-disclosure – Appeal Committee granted leave to appeal on these four questions of requisite importance – Appeal listed for hearing on 31 October 2022 – Secretary for Justice invited to file submissions.

Legal issues: Exclusive right of Secretary for Justice to bring criminal contempt proceedings · Requirement to consult Secretary for Justice before private committal proceedings · Requirement to join Secretary for Justice as party or lay facts before court · Consequences of procedural defects or non-disclosure

Outcome: Leave to appeal granted to the applicants on Questions 1 to 4.

Case No.FAMV 113/2022[2022] HKCFA 16
Court
FAMV
Date18 Jul 2022
JudgeMr Justice Fok PJ, Mr Justice Lam PJ and Mr Justice Tang NPJ
Case Document
100%Judiciary

FAMV Nos. 112 and 113 of 2022

[2022] HKCFA 16

FAMV No. 112 of 2022

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 112 OF 2022 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 173 OF 2017)

___________________________

BETWEEN    
CHU KONG Applicant
(Respondent)
and
SUN MIN 1st Defendant (Putative)
(1st Applicant)
YAN DONGHAI 2nd Defendant (Putative)
CHANG DAFA 3rd Defendant (Putative)
(2nd Applicant)
PACIFIC BULK SHIPPING (CAYMAN) LIMITED 4th Defendant (Putative)
(3rd Applicant)

___________________________

FAMV No. 113 of 2022

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 113 OF 2022 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 174 OF 2017)

___________________________

BETWEEN    
MR CHU KONG Plaintiff
(Respondent)
and
SUN MIN 1st Defendant
(1st Applicant)
YAN DONGHAI 2nd Defendant
CHANG DAFA 3rd Defendant
(2nd Applicant)
PACIFIC BULK SHIPPING (CAYMAN) LIMITED 4th Defendant
(3rd Applicant)

___________________________

(HEARD TOGETHER)

Appeal Committee: Mr Justice Fok PJ, Mr Justice Lam PJ and Mr Justice Tang NPJ

Date of Hearing and Determination: 18 July 2022

____________________

DETERMINATION

____________________

Mr Justice Fok PJ:

1.This hearing has been concerned with the issue of whether leave to appeal should be granted to the applicants in respect of Questions 1 to 4 set out in paragraph 9 of their Notice of Motion filed on 28th February 2022 (and which are reproduced in the Annex to this Determination).  The balance of the application for leave to appeal was dismissed by order of the Appeal Committee dated 1st June 2022.

2.We are satisfied that the said four questions are of the requisite importance and, being involved in the appeal, ought to be submitted to the Court for decision.

3.We grant leave to appeal accordingly.

4.The appeal will be listed for hearing on 31st October 2022.

5.Further, the Registrar of the Court of Final Appeal will, following this Determination, give procedural directions for the parties’ printed cases to be served on the Secretary for Justice, who will be invited to file and serve written submissions in respect of the said four questions and the parties’ respective printed cases, if he so chooses, for the assistance of the Court.

(Joseph Fok)
Permanent Judge		 (M H Lam)
Permanent Judge		 (Robert Tang)
Non-Permanent Judge


Mr Benjamin Yu SC and Mr Keith Chan, instructed by DLA Piper Hong Kong, for the 1st to 3rd Applicants in both applications

Mr Johnny Mok SC, Mr Michael Lok and Mr Charlie Liu, instructed by Howse Williams, for the Respondent in both applications


ANNEX

“Question 1

Does the Secretary for Justice have the exclusive right to bring proceedings against an alleged contemnor in respect of criminal contempt?

Question 2

If the answer to the first question is in the negative, then, if a private litigant seeks to commit another for criminal contempt under Order 52 of the Rules of the High Court (Cap. 4A), is he or should he be required (in the absence of exceptional circumstances such as urgency) to consult the Secretary for Justice before he can bring an application for leave to commit under Order 52 rule 2?

Question 3

If the answer to the second question is in the affirmative, and assuming the Secretary for Justice, having been so consulted, declines to bring proceedings in respect of the said criminal contempt, is the private litigant required to join the Secretary for Justice as party, and/or lay relevant facts before the Court including any expressed views of the Secretary for Justice, when bringing proceedings for criminal contempt under Order 52?

Question 4

In the event that the answer(s) to any of the above questions is/are in the affirmative, should the leave granted to Mr. Chu to commence committal proceedings against the Defendants herein (by Deputy High Court Judge Kent Yee on 20 December 2016) be set aside and these contempt proceedings be dismissed on the basis that they are procedurally defective, and/or that there has been material non-disclosure in respect of Mr. Chu’s failure to consult the Secretary for Justice before commencing these proceedings and/or his failure to join the Secretary for Justice to these proceedings?”