Cheung Yuk-ha v. The Queen

Case No.HCMP 58/1979

Court

High Court CFI

Date09 Feb 1979

Judge—

Case Document

100%Judiciary

HCMP000058/1979

IN THE HIGH COURT OF JUSTICE
FULL BENCH	1979 No. 58

-----------------

IN THE MATTER of an application for a Writ of habeas corpus ad subjiciendum

-----------------

BETWEEN
	CHEUNG Yuk-ha	Applicant
	AND
	The Queen	Respondent

-----------------

Coram: Briggs, C.J. & Leonard, J.

Date of Judgment: 9 February 1979

-----------------

JUDGMENT

-----------------

Leonard, J.:

1. In this case a writ of habeas corpus having been served on the Commissioner of Prisons his return certified that the applicant had been detained under and by virtue of a warrant of commitment made by the District Judge at Western on 26th January 1979 and reading as follows:

"	Whereas it appears to the Court that the witness Cheung Yuk Ha, PW 16 in this trial has this day been found guilty of contempt in that her evidence to the Court is not forthcoming and upon informing the said witness of the nature of her contempt and upon giving her a chance to show cause as to why she should not be therefor committed and upon her electing to remain silent. It is ordered that for her said contempt the said Cheung Yuk Ha do stand committed to prison for a period of 14 days.
	Dated the 26th of January 1979.

	(Signed)
	P.A.G. Cameron
	Judge of District Court"

It is well settled that this court may and should go behind any such warrant and determine if it has been validly made notwithstanding that steps have not been taken by way of certiorari.

2. The facts leading to its issue may be briefly stated. The applicant, a former woman police constable, was called as a witness for the Crown in a criminal matter. She was a reluctant and evasive witness and was almost certainly guilty of contempt in the broad sense of the term. The District Court however does not have inherent power to commit for contempt. Such power as it has is statutory and to be found in section 20 of the District Court Ordinance which reads:

"	20.	If any person -
	(a)	wilfully insults a judge or a witness or any officer of the Court during his sitting or attendance in court, or in going to or returning from the Court; or
	(b)	wilfully interrupts the proceedings of the Court or otherwise misbehaves in court,

any officer of the Court, with or without the assistance of any other person may, by order of the judge, take the offender into custody and detain him until the rising of the Court and the judge may if he thinks fit -

(i)		by a warrant under his hand commit the offender to prison for a specified period not exceeding three months; or
(ii)		impose upon the offender a fine not exceeding one thousand dollars for every such offence."

Clearly the wording of this section is not wide enough to cover the present case and Mr. Murphy, counsel for the respondent, did not contend that it was. What he did argue was that the action of the learned District Judge could be justified under section 21 of the Ordinance which reads:

"21. If it appears to a judge that any witness (which shall include a party who gives evidence on his own behalf) has wilfully given false testimony, the judge may -

	(a)	by warrant under his hand commit the offender to prison for a specified period not exceeding fourteen days; or
	(b)	impose upon the offender a fine not exceeding one thousand dollars for every such offence."

Provided that before making any order under this section, the judge shall first clearly inform the witness of the specific words which appear to the judge to constitute a false testimony and shall give the witness an opportunity of showing cause why the order said witness, adjourn the proceedings in order to enable the said witness to instruct solicitor or counsel on his behalf."

Mr. Murphy argued that the notes of the District Judge showed that he complied with this section. The relevant parts of these notes read:

"	You were asked by me earlier if you knew why you had been called to give evidence and you answered 'No.'. I don't believe that. Before giving evidence you were allowed to read the statement you gave to I.C.A.C., June 1978.
	...........
	The statement is not short. There appears to be quite a lot of information there. This afternoon, you were not prepared to say anything at all. It is quite clear you know more than you are prepared to tell us. The 2 Defendants, D1 and D2 were charged (4th charge read) and it was in connection with that charge that a statement was taken from you by I.C.A.C. I consider that your conduct in witness box amounts to contempt of Court. I intend to charge you with contempt. Do you wish to say anything about this?
	A.: Nothing.

Court:

...... My intention is to send you to prison. Is there anything you wish to say?

A.: I ask you to forgive me."

In our view this argument is not acceptable. Firstly because the warrant itself refers to contempt and the learned judge in addressing the applicant refers to contempt. Secondly there is no reference to the applicant having wilfully given false testimony. Although the learned District Judge did say that he did not believe her when she denied knowing why she had been called to give evidence it was with contempt rather than that denial that he charged her. He did not in our view "clearly inform the witness of the specific words" which appeared to him to constitute false testimony nor afford her a sufficient opportunity of showing cause within the meaning of section 21.

3. This committal therefore cannot stand and must be discharged with costs.

Representation:

Mr. Francis Eddis (Raymond Tang & Co.) for applicant.

Mr. A. Murphy, C.C. for Crown/respondent.