Secretary for Justice v. Choy Bing Wing

CACV 11/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.11 OF 2004

(ON APPEAL FROM hcmp NO. 4694OF 2003)

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BETWEEN

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Date of Hearing:  26 November 2004

Date of Judgment: 3 December 2004

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J U D G M E N T

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Hon Yeung JA (giving Judgment of the Court):

Background

1.On 29^th October 2003, Hartmann J, on an ex parte application under Order 52 of the Rules of the High Court, granted leave to the Secretary for Justice (the Applicant) to apply for an order of Committal against Mr Choy Bing Wing (the Respondent).

2.Pursuant to Hartmann J’s order, the Applicant issued a Notice of Motion (the Contempt Notice of Motion) on 10 November 2003, seeking to commit the Respondent to jail or to such punishment as the court may deem just for contempt of court.

3.The ex parte application, a statement pursuant to Order 52 Rule 2(2), an affirmation of Wong Kin Man verifying the contents of the statement with exhibits and the Contempt Notice of Motion were served on the Respondent by the bailiff on 14 November 2003.

4.On 10 December 2003, the Chief Judge of the High Court gave directions relating to the further conduct of the contempt proceedings. A hearing date for the Contempt Notice of Motion on 17 February 2004 was then fixed.

5.On 12 December 2003, the Respondent applied to strike out the Contempt Notice of Motion under Order 18 Rule 19 on the basis that it (a) discloses no reasonable cause of action; (b) is scandalous, frivolous and vexatious; (c) may prejudice, embarrass or delay the fair trial of the action; and (d) is an abuse of the process of the Court.

6.The Chief Judge dismissed the Respondent’s application on 14^th January 2004 with costs. The Respondent now appeals against the Chief Judge’s decision.

The Two Civil Cases

7.The genesis of events giving rise to the Applicant’s complaint against the Respondent is two civil cases, namely; - (i) Ng Yat Chi (Ng) v Max Share Limited (Max Share) and China Resources (Holdings) Limited (China Resources), i.e. HCCW 321 of 1996, and (ii) Phoon Lee Piling Co. Ltd. (in liquidation) (Phoon Lee) and Chung Kau (a bankrupt) (Chung) v Hong Kong Housing Authority (HKHA), i.e. HCA 119 of 2001.

8.In HCCW 321 of 1996, Ng sought to wind up Max Share on just and equitable ground. On 24 May 2000, Yuen J (as she then was) ruled in favour of Ng against China Resources and ordered Max Share to be wound up.

9.On 31 October 2000, the Court of Appeal (Rogers VP, Stock and Le Pichon JJA) allowed China Resources appeal with costs and set aside Yuen J’s winding up order (CACV 204 of 2000). On 13 July 2001 and 17 September 2001 respectively, the same Court of Appeal and the Appeal Committee of the Court of Final Appeal (Bokhary, Chan and Ribeiro PJJ) refused Ng’s application for leave to appeal to the Court of Final Appeal with costs.

10.Under section 18(3) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, the decision of the Appeal Committee was, of course, final.

11.Ng failed to meet the costs orders made by the Court of Appeal, and by the Appeal Committee. On 14 June 2002, China Resources served on Ng a Statutory Demand for about $1.4 million, being the balance of the unpaid costs.

12.Ng’s application to set aside the Statutory Demand was dismissed by Deputy Judge Woolley on 15 July 2002.

13.Despite the decision of the Appeal Committee, Ng, on 29 May 2002, commenced fresh proceedings against China Resources and Max Share (HCA 2039 of 2002) with a view to restoring the decision of Yuen J of 24 May 2000.

14.The suggestion was that the decisions of Court of Appeal and of the Appeal Committee in over-ruling Yuen J were the result of fraud and hence should be void and have no effect.

15.Deputy Judge Carlson struck out Ng’s claim in HCA 2039 of 2002 on the basis that it was an abuse of the process of the court.

16.Ng appealed against the decision of Deputy Judge Woolley in dismissing his application to set aside the Statutory Demand (CACV 306 of 2002), and the decision of Deputy Judge Carlson in striking out his claim in HCA 2039 of 2002 (CACV 414 of 2002).

17.The Court of Appeal (Yeung JA, Stone and Lugar-Mawson JJ) dismissed both of Ng’s appeals on 10 September 2003 and refused him leave to appeal to the Court of Final Appeal on 28 September 2003.

18.In HCA 119 of 2001, Phoon Lee and Chung claimed damages against the HKHA for defamation. On 17 April 2002, Master HC Wong struck out parts of the claims and some of the answers to the requests for further and better particulars of the Statement of Claim.

19.Phoon Lee and Chung appealed to Deputy Judge A Cheung (as he then was) and then to the Court of Appeal (Rogers VP and Le Pichon JA, CACV 303 of 2002). The appeals were dismissed on 11 July 2002 and 2 May 2002 respectively.

The Respondent’s Status

20.The Respondent was a director of Phoon Lee and as such, he was granted leave to be its representative in pursuing its claim against HKHA. The Respondent was also granted leave to represent Ng and Chung as a Mackenzie Friend in the two civil cases. The Respondent filed affirmations and spoke for them in all the related hearings.

21.The Respondent constantly and repeatedly asserted in his affirmations and throughout the related hearings that in setting aside the order of Yuen J in CACV 204 of 2000, the Court of Appeal and the Appeal Committee, in particular, Rogers VP had committed act/acts of fraud/cheating.

22.At the hearing of the appeals (CACV 306 and 414 of 2002) on 10 September 2003, the main ground of appeal advanced by the Respondent on behalf of Ng was that the decisions of the Court of Appeal dated 31 October 2000, and of the Appeal Committee dated 17 September 2001 were “fraudulent” decisions and were therefore void and of no effect.

23.The Respondent argued that Ng was entitled to commence HCA 2039 of 2002 to overcome those “fraudulent” decisions in order to restore Yuen J’s decision of 24 May 2000. The Respondent also contended that the Statutory Demand served on Ng by China Resources arose out of the “fraudulent” decisions and should therefore be set aside as well.

24.In the course of the hearing of the appeals on 10 September 2003, the Respondent made serious attacks on the integrity of many judges and judicial officers, particularly Rogers VP.  Words such as “cheating”, “dishonest”, “crook”, “dirt” and “fraud” were used.

25.In fact the Respondent had earlier made similar attack directly before Rogers VP.

26.At the hearing of the appeal in CACV 303 of 2002 before Rogers VP and Le Pichon JA on 2 May 2003, whilst acting for Phoon Lee and Chung, the Respondent applied to have Rogers VP “disqualified” from hearing the appeal on the basis that Rogers VP had, in other cases involving the Respondent, ruled against him and that in so doing, Rogers VP had been acting “dishonestly”.

27.The Motion to disqualify Rogers VP was dismissed. The Respondent then, instead of arguing the appeal, made vulgar abuse against the Court, particularly against Rogers VP. In the end, the Respondent left the Court during an adjournment before the conclusion of the hearing.

28.It is perhaps enlightening to refer to an excerpt of the Court of Appeal judgment handed down by Rogers VP on 20 May 2003:

“Mr Choy’s (the Respondent) allegation of cheating and fraudulent judgment in relation to the Court of Appeal judgment, again, has no other basis than that this court, of three judges, had reversed a judgment in the court below. That reversal was endorsed by the Appeal Committee of the Court of Final Appeal and likewise the allegation against that Committee that it put words into the mouth of the trial judge to support ‘cheating’ has no basis whatever.

Mr Choy’s remarks were no more than vulgar abuse. They were unsupported by any fact or allegation which would go to show bias, still less bias against Mr Choy personally. This conclusion follows inexorably from Mr Choy’s submissions. One can only comment, however, that it is entirely regrettable that in the course of correspondence and submissions in relation to this case alone Mr Choy has attacked the integrity of at least 2 masters, the Registrar of the High Court, a deputy High Court Judge, 2 High Court Judges, the Chief Judge of the High Court, 4 other members of the Court of Appeal, and the 3 permanent judges of the Court of Final Appeal. In respect of each, the attack has been mere abuse, it has been baseless.

After the plaintiffs’ notice of motion had been dismissed with reasons to be provided, Mr Choy was invited to argue the appeal. Mr Choy declined to do so and continued to shout abuse. A short adjournment was taken in order to enable Mr Choy to recover his composure and address the court in a civilized manner. Upon the appeal being called on at the time appointed, Mr Choy and the 2^nd plaintiff were no longer in the court of outside. In the circumstances the appeal was taken as abandoned and accordingly dismissed….The plaintiffs have consistently heaped abuse on the master and judge. In the notice of motion seeking to disqualify and discharge myself from hearing the appeal, reference is made to the appeal being ‘against the crookery acts of the judges below.’ There is not one iota of justification for such an attack on their integrity. They can, however, take some consolation from the fact that they are not alone in the abuse which has been heaped upon them. Similar abuse would appear to have been directed at every judge who has given a decision with which Mr Choy did not agree. Even the Chief Judge of the High Court was accused in the letter of 11 December 2002 of having failed in his duty either incompetently, recklessly or dishonestly.

Whilst judges are prepared to overlook outbursts from litigants in person, not least because it can be appreciated that they may well have a considerable emotional involvement in the cases, in the present case Mr Choy’s conduct has gone well beyond a mere emotional outburst. Indeed, his conduct both in this court and in the court below has been directed to invective and abuse, disregarding entirely the need to address the issues involved.

It is appreciated that proceedings in court can be extremely stressful. That stress might build up over a period of years. As the judgment of Chief Justice Li of 18 May 1998 demonstrated, Mr Choy had been actively involved in relation to Max Share Limited since April 1992. It may well be expected that Mr Choy was disappointed by the outcome of the Companies (Winding Up) No. 321 of 1996. However, Mr Choy’s conduct in this court and in the court below cannot be condoned on the basis that it is attributable to such disappointment on the part of a litigant in person…

This matter will be referred to the Secretary of Justice with a view to consideration of the commencement of contempt proceedings in relation to Mr Choy’s conduct.”

29.In the conduct of the two civil cases and the related appeals, namely CACV 303, 306 and 414 of 2002, it was invariably the Respondent’s contention, as demonstrated in documents filed into court and in submissions made by him, that Rogers VP was dishonest, biased, had cheated and had fabricated evidence, and was a disgrace.

30.In an apparent attempt to play up the issue, the Respondent repeated those accusations against Rogers VP directly or indirectly to local newspapers and magazines; and not surprisingly, those accusations were published.

The Applicant’s Case

31.The Applicant’s contention is that the Respondent had “made serious scurrilous allegations of impropriety against Mr Justice Rogers VP during the civil proceedings in connection with CACV303, 306, 414 of 2002… and that such allegations individually and cumulatively constituted interference with the administration of justice and contempt of court.”

The Respondent’s Position

32.The Respondent did not recoil from his attacks against Rogers VP and certainly made no apology for such attacks. The following excerpt from the judgment of the Chief Judge dated 14 January 2004 perhaps summarized the Respondent’s position well:

“In the Respondent’s evidence and in his submissions, both oral and written, it would appear that the groundsfor seeking an order that the Contempt Notice of Motion be struck out are essentially as follows:-

(1)    In bringing the present contempt proceedings against him, the Applicant has failed to disclosed material facts. These include the allegation that his assertions against Mr Justice Rogers VP are in fact true. He has, in his affirmation, written submissions and his oral submissions, gone into considerable detail. Other material facts omitted include his correspondence with the Department of Justice and others prior to the taking out of the Contempt Notice of Motion.

(2)    It was improper for the Applicant to have brought contempt proceedings against the Respondent. As it involved the court, proceedings should and could only have been commenced by the court. The Respondent seems to go further: any contempt proceedings can only be heard by Mr Justice Rogers VP himself. In any event, he says, it is significant that Mr Justice Rogers VP has not been asked for an explanation as to why the court did not seek to commit him of its own motion.

(3)    The evidence in support of the Contempt Notice of Motion was hearsay.

(4)    The Respondent was merely exercising his constitutional right of free speech. In any event, he was protected by the absolute privilege accorded to counsel in judicial proceedings.

(5)    Although the Applicant had appeared to invite the Respondent in correspondence to express his point of view, she had effectively pre-determined her decision to charge him with contempt.

(6)    The Respondent has not been properly served in the present proceedings. He was only served by the bailiff and not by a representative of the Applicant.

Today, the Respondent has made the following submissions in addition to the above points:-

(1)    He had an honest belief in the accusations leveled against the Vice President. This, according to him, was an absolute defence.

(2)    Further to his arguments on hearsay, the Respondent says that there is no affidavit evidence from the judge himself and there ought to be.

(3)    Reference was made to In re Lonrho [1990] 2 AC 154 for the proposition that if direct action is taken by a litigant to secure the substance of a remedy he was seeking in judicial proceedings, this cannot amount to contempt:- see page 212E –213A (at paragraph 8.4). The Respondent referred to his application to have Mr Justice Rogers VP disqualified as being such ‘direct action’.

(4)    It was also submitted that it was a defence to what otherwise may be a Contempt if a prior warning to the Respondent had not been given to the effect that what he might say could be a contempt of court. In this context, the Respondent referred to Munster v Lamb (1883) 11 QBD 538 and WS Edwards v KM Almao [1957] HKLR 269. The respondent’s point seems to be that if a warning had been given to him prior to his saying what he did, he may not have done so.”

The Decision of the Chief Judge

33.The Chief Judge, having heard arguments, concluded that most of the Respondents’ complaints could only be determined at the substantive hearing.

34.The Chief Judge concluded that the Applicant, and not just Rogers VP, could institute contempt proceedings against the Respondent; and that it would be fairer for her to do so to avoid Rogers VP becoming a judge in his own cause.

35.The hearsay point was rejected on the basis that hearsay evidence was permitted in a civil contempt application (emphasis added). The suggestion of pre-determination by the Applicant to cite the Respondent for contempt was ruled to be irrelevant. Service by the bailiff was held to be permissible under section 38A of the High Court Ordinance, Cap. 4.

Grounds of Appeal

36.In the voluminous documents, including the Notice of Appeal, and the skeleton submissions that he elaborates at length in his submission, the Respondent suggests that as the alleged contempt against him is a criminal contempt and therefore the procedure and standard adopted in criminal cases must be followed strictly.

37.The suggestion is that the Applicant and her counsel had misled the court by relying on hearsay evidence in a criminal contempt proceeding and had failed to make full disclosure.

38.The Respondent seeks to rely on Secretary For Justice v Apple Daily & Anor [2000] 2 HKC 739, which he claims was withheld from Hartmann J in the leave application, and from the Chief Judge in the striking out application. The suggestion is that there had been material non-disclosure.

39.He emphasizes, referring to Order 52 Rule 6(3), that “hearsay evidence is not admissible in cases of criminal contempt (R v Shokoya (1992), The Times, June 10, CA)”.

40.In particular, the Respondent points out that under Order 52 Rule 2 the supporting statement must be verified by affidavit. He suggests that only Rogers VP could verify if the Respondent’s allegation against him was true or not and therefore without the direct evidence from Rogers VP, the Contempt Notice of Motion “ought to be struck out forthwith” for failing to comply strictly with the rule.

41.The Respondent further contends that in advancing a “fearless submission” based on the past performance of Rogers VP, “sensitive and shocking” submission was “unavoidable and inevitable”.

42.The Respondent emphasizes that he had not been warned not to make the contemptuous remarks by Rogers VP; that those remarks were in fact made with the express permission of Rogers VP who even comforted him by asking him to calm down and by adjourning the hearing for ten minutes, and therefore those remarks could not form the basis of a contempt charge against him.

43.The Respondent suggests that the case HKSAR v Yau Petrus [1999] relied on by the Chief Judge had no application.

44.The Respondent repeats his suggestion that as his remarks against Rogers VP were made in the course of applications to disqualify him, and that he also had an honest belief in what he said, he should be exempted under the principle established in In re Lonrho [1990] 2 AC 154.

45.The Respondent also seeks reliance on his right of free speech and the right of absolute privilege in open court and contends that such issues should be dealt with at the striking out stage and not at the substantive hearing.

46.We accept that in any ex parte application, an applicant must proceed with the utmost good faith as the court is asked to grant relief without the person against whom the relief is sought having the opportunity to be heard.

47.An ex parte applicant must therefore make full and frank disclosure of all material facts or else the ex parte order is likely to be set-aside on an application under Order 32 Rule 6 (see R v Kensington Income Tax Commissioner ex p Princess Edmond de Polignac [1917] 1 KB 486 at 514 per Scrutton LJ).

48.Facts are material and should be disclosed if they “are relevant to the weighing operation which the court has to make in deciding whether or not to grant the order” (see Citibank NA v Express Ship Management Services [1987] HKLR 1184, Thermax v Schott Industrial Glass Ltd [1981] FSR 289 at 298 per Brown-Wilkinson J).

49.The Respondent’s complaint on non-disclosure is that the Applicant had deliberately withheld the decision in Secretary For Justice v Apple Daily & Anor (supra) from Hartmann J in the ex parte application and then from the Chief Judge in the striking out application.

50.The suggested non-disclosure does not relate to any fact, let alone  a material one. The decision in Apple Daily (supra) is a matter of law and not a fact relevant to the weighing operation in deciding whether or not to grant the ex parte order at all. The Respondent’s submission on non-disclosure is completely misconceived.

51.The Respondent has not specified what is the “hearsay evidence” he has in mind. If he is referring to the records of proceedings of the various hearings in connection with CACV 303, 306 and 414 of 2002, those documents are admissible in any cause of matter under Order 38 Rule 10. Affidavit evidence may also be used in any proceeding under Order 41 Rule 10(3).

52.The reports carried by newspapers and magazines certainly appear to be hearsay evidence. However, depending on who made the statements and how they were made, and the availability of witnesses, such “hearsay evidence” could still be admissible even in criminal cases.

53.In any event, the admissibility of evidence can only be determined at the substantive hearing. The reporters or whoever heard the comments allegedly made of Rogers VP by the Respondent could be summoned to give evidence, if necessary.

54.We accept that the alleged contempt in question is criminal rather than civil. Mr McCoy SC, on behalf of the Applicant, fairly concedes on this point.

55.“Civil contempt (or ‘contempt in procedure’) is disobedience of an order of the court (or breach of undertaking) by a party to the proceedings; all other forms of contempt are criminal contempts” (Att. Gen. V Times Newspapers Ltd [1974] A.C. 273, at 307-308 per Lord Diplock).

56.In Cartier International B V and Others v Kaybee International Ltd [1985] HKLR 127 at 132, Sir Alan Huggins VP made the following observation:

“There was some discussion whether this was a criminal or a civil contempt. As I have always understood it, the question is in the end material only to the form of the order for committal which should be made. Proceedings for contempt may be either in aid of enforcing a still subsisting order made for the sole benefit of a party in a civil matter (in which event a committal may be made for an indefinite period, i.e. until the contemnor has purged his contempt) or simply to punish the scandalizing of the court or a past disobedience of an order (where the committal should be for a fixed term). The former would be a civil contempt and the latter a criminal contempt.”

57.On the other hand, it may not be necessary to actually classify a contempt as civil or criminal as there can be no doubt that the standard of proof required is the same in both types of contempt.  In Att. Gen. V Times Newspaper Ltd (supra), Sir John Donaldson MR said at p 362:

“Despite its protean nature, contempt has been classified under two heads, namely, ‘civil contempt’ and ‘criminal contempt’. Whatever the value of this classification in earlier times, I venture to think that it now tends to mislead rather than assist, because the standard of proof is the same, namely, the criminal standard, and there are now common rights of appeal.”

58.In In re Bramblevale Ltd [1970] 1 Ch. 128, Lord Denning MR said at p 137:

“A contempt of court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time honoured phrase, it must be proved beyond reasonable doubt.”

On the same page, Winn LJ said:

“Unless the guilt of the appellant was proved with such strictness of proof as is consistent with the test ‘beyond reasonable doubt’ or as my Lord has more than once put it, consistent with such standard as the court, with its responsibility, regards as consistent with the gravity of the charge- a test which I personally prefer- the decision that he should be imprisoned for contempt of court cannot be sustained.”

59.The Respondent’s emphasis that the contempt proceeding in question is criminal in nature is noted and accepted.

60.We do not, however, accept his contention that the absence of a verifying affidavit from Rogers VP is relevant. The Applicant’s complaint against the Respondent is that he had made scurrilous allegations of impropriety against Rogers VP during civil proceedings in connection with CACV 303, 306 and 414 of 2002.

61.The supporting statement clearly set out such ground and the facts relied on. The affirmation of Wong Kin Man also verified those facts.

62.We also wish to point out that the contempt proceeding against the Respondent is still at an early stage. The Applicant had only obtained leave to apply for an order of Committal under Order 52 Rule 2 and had just served the Contempt Notice of Motion on the Respondent. The hearing of the Motion of committal had to be adjourned because of the Respondent’s application to strike out.

63.At this early stage, the court is not concerned with the admissibility of evidence or whether the Applicant can successfully prove her allegations against the Respondent nor is the court concerned with the possible defence of the Respondent or whether such defence will succeed.

64.Order 52 Rule 2 stipulates the requirement to obtain leave to apply for committal in the following terms:

“An application for such leave must be made ex parte to a judge, and must be supported by a statement setting out the name and description of the applicant, the name, the description and address of the person sought to be committed and the grounds on which his committal is sought, and by an affidavit, to be filed before the application is made, verifying the facts relied on.”

65.The purpose of the statement in support of an application for leave is simply to provide the person sought to be committed with enough information to enable him to meet the charge. Sir John Donaldson MR said in no uncertain terms in Chiltern D.C. v Keane [1985] 1 WLR 619 at 622 C:

“Every notice of application to commit must be looked at against its own background. The test, as I have said, is: does it give the person alleged to be in contempt enough information to enable him to meet the charge?”

66.In Aqua-Leisure Industries, Inc and another v Auqa Aplash Ltd HCA 18928 of 1998, it was accepted that “the statement in support of an application is to be treated in similar manner as an indictment in criminal proceedings, having regard to the criminal nature of the sanctions for contempt”.

67.The Indictment Rules under Cap 221 provide under Rule 3 that “every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence with which the accused is charged describing the offence shortly, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge”.

68.There can be no doubt that the statement dated 17 December 2003 filed by the Applicant pursuant to Order 52 Rule 2(2) contains detailed particulars of her allegations against the Respondent. Those particulars are clearly more than adequate to enable the Respondent to meet the contempt charge against him.

69.In the verifying affirmation of Wong Kin Man affirmed on 23 October 2003, court documents such as pleadings, affirmations, judgments and transcripts of hearings were exhibited together with news reports and magazine articles. It is such documents that the Respondent objects to on the basis that they are hearsay documents.

70.Technically, there was no need for the Applicant to exhibit those documents in the verifying affirmation. Order 52 Rule 2(2) only obliges the Applicant to verify the facts relied on, i.e. the contents of the statement containing the information to enable the Respondent to meet the charge.

71.The exhibited documents, including the newspaper reports and the magazine articles, contain further details of the Applicant’s allegations against the Respondent. The Applicant was only trying to provide the Respondent with as much information as possible.

72.How such allegations are to be proved and whether evidence tending to prove those allegations are admissible, as with all evidence in a criminal case, can and should only be dealt with at the substantive hearing.

73.Without commenting on their merits, the suggested defence that he had not been warned not to make the contemptuous remarks; that they were made with the permission of Rogers VP; that he had not been warned by Rogers VP not to make such remarks; that they were made in the course of an application in a judicial proceeding; or that the Respondent was exercising his right of free speech are all matters that can only be properly dealt with at the substantive hearing.

74.Quite apart from the procedural irregularity in that an application to set aside an ex parte order should normally be made under Order 32 Rule 6, the Respondent’s application has no merit whatsoever.

75.Any application to strike out under the inherent jurisdiction of the court or under Order 18 Rule 19 of the Rule of the High Court can only succeed in plain and obvious cases. “The claim must be obviously unsustainable, the pleadings unarguably bad and it must be impossible, not just improbable, for the claim to succeed before the court will strike it out” (Ha Francesca v Tsai Kut Kan (No. 1) [1982] HKC 382 per Silke JA).

76.The Applicant’s allegations against the Respondent, contained in the supporting statement, certainly disclose a reasonable cause of action. It is not scandalous, frivolous or vexatious; it does not prejudice, embarrass or delay the fair trial of the action, and it is certainly not an abuse of the process of the Court.

77.The application to strike out the Contempt Notice of Motion by the Respondent is completely misconceived.

78.The Chief Judge might have inadvertently referred to the alleged contempt as civil rather than criminal. However, such inadvertence has no bearing on the issue before us. A charge of contempt of court, be it of civil or criminal contempt, requires the same criminal standard of proof.

79.However, the questions of the admissibility of evidence and of proof of the charge, and the viability of the defence advanced by the Respondent can and should only be dealt with at the substantive hearing.

80.We are firmly of the view that the decision to dismiss the Respondent’s application to strike out the contempt Notice of Motion is a correct decision.

81.In an affirmation filed on 22 November 2004, the Respondent refers to a recent event in which he was arrested pursuant to a Warrant issued by Mr K.A. Browne, a magistrate sitting in Tsuen Wan Magistracy.

82.The Warrant suggests that the Respondent appeared before Mr Browne as the authorized representative of Ngan Lung Café and Noodles Restaurant Limited (Ngan Lung) on 26 October 2004 to answer an information laid against Ngan Lung, and the Respondent is alleged to have used insulting expressions in the presence of Mr Browne when acting in the discharge of his magisterial duty, contrary to section 99 of the Magistrates Ordinance.

83.According to the Respondent, he was arrested, handcuffed and brought to the Tsuen Wan Magistracy as a “criminal”. The Respondent suggests that the Warrant was a counterfeit and his arrest was unlawful.

84.The Respondent also says that, despite his complaints to the Hong Kong Bar Association, the Chief Justice of the Court of Final Appeal, the Secretary for Justice, and the Commissioner of Police, he has not received any reply from any of them.

85.The Respondent suggests that in the circumstances, there are “attempts by the Government of the Hong Kong Special Administrative Region to trap him to jail”. He suggests that he can never have a fair trial.

86.We do not consider the recent event of his arrest in pursuance of the Warrant being issued by Mr Browne to have any bearing on the appeal that we have to deal with. It is an entirely separate and unrelated proceeding, and on the available information, it appears to have been properly concluded.

87.The Respondent informs us that he had withdrawn certain offending remarks, that he made before Mr Browne, though unwillingly, and Mr Browne then decided to take no further action.

88.If the Respondent feels aggrieved by the Warrant, he is entitled to take such steps as may be necessary to vent his grievances, but mixing the Contempt Notice of Motion with the Warrant is not one of them.

89.The suggestion that the Respondent cannot have a fair trial is unfounded.

90.In the circumstances, the Respondent’s appeal must be dismissed and we so order.

91.We also order the Respondent to pay the Applicant’s costs of the appeal, such costs to be taxed if not agreed.

Respondent: In person.

Mr Gerald McCoy, SC instructed by the Department of Justice for the Applicant.