Secretary for Justice v. Choy Bing Wing

CACV 193/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 193 OF 2005 

(ON APPEAL FROM hcmp nO. 4694 OF 2003)

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BETWEEN

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Before: Hon Yeung JA & Tang JA

Date of Hearing: 9 August 2005

Date of Judgment: 9 August 2005

Date of Handing Down Reasons for Judgment: 18 August 2005

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reasons for judgment

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Hon Yeung JA (giving reasons for judgment of the Court):

1.On 9 August 2005, we dismissed the appeal by the Respondent (Mr Choy Ping Wing) with costs. We indicated that we would give our reasons in writing and this we now do.

2.The Applicant (the Secretary for Justice) obtained an ex parte order for committal against the Respondent from Hartmann J on 29 October 2003. Pursuant to such order, a Notice of Motion (the Notice of Motion) was issued on 10 November 2003, seeking to commit the Respondent for contempt of court.

3.On 10 December 2003, Ma CJHC gave directions relating to the further conduct of the contempt proceedings and a hearing date was fixed.

4.On 12 December 2003, the Respondent applied to strike out the Notice of Motion, which application was dismissed by Ma CJHC with costs on 14 January 2004.

5.The Respondent appealed; and the Court of Appeal, after a hearing on 26 November 2004, dismissed his appeal on 3 December 2004.

6.The original hearing date had to be put off due to the aforesaid interlocutory proceedings. 

7.On 8 June 2005, Hartmann J, in the absence of the Respondent who chose not to appear, again set down the hearing of the Notice of Motion and gave directions on the filing of evidence.

8.The Respondent appealed against Hartmann J’s directions.

9.The Respondent contended that the Applicant, together with her counsel, had committed fraud in obtaining the ex parte order from Hartmann J on 29 October 2003 and the order from Ma CJHC on 14 January 2004.

10.He suggested that the Applicant had concealed an important decision from the Court and had misled the Court by presenting the case against him as a civil contempt when it should be a criminal contempt.

11.The Respondent also suggested that the Applicant had deceived the Court of Appeal by adducing hearsay evidence when such evidence was inadmissible. The Respondent referred to the Notice of Motion originally dated the 10 November 2003 to point out that the Applicant had intended and did rely on hearsay evidence in obtaining the ex parte order from Hartmann J.

12.The Respondent repeated the suggestion that as the proceeding against him was a criminal contempt, Order 52 of the Rules of the High Court had no application and hearsay evidence should not have been admitted to support the leave application before Hartmann J.

13.In the circumstances, the direction by Hartmann J on 8 June 2005 was made without jurisdiction and was the result of fraud.

14.The Respondent claimed that when the Court of Appeal ruled, in its decision on 3 December 2004, that the question of admissibility of evidence would only be dealt with at the substantive hearing, the Applicant was in fact allowed a “second bite of the cherry” and had resulted in double jeopardy to him.

15.The Respondent further suggested that Hartmann J was not suitable and indeed unfit to give the directions and/or to sit at the hearing after he made “the fundamental fault in granting an ex parte order on the basis of totally inadmissible evidence which in effect amounted to total absence of evidence”.

16.The Court of Appeal had, in its judgment dated 3 December 2004, dealt with the Respondent’s allegation of fraud and his suggestion of wrongful admission of hearsay evidence. Leave to appeal to the Court of Final Appeal was rejected by the Appeal Committee on 27 April 2005.

17.The judgment of the Court of Appeal dated 3 December 2004 was binding on the Respondent; whether he accepted it or not.

18.We wish to adopt the following paragraphs from the judgment of the Court of Appeal:

“	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 he 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 single 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 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 622C:
		‘	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 Aqua Splash 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 the contempt’.
	67.	The Indictment Rules under Cap 221 provide under Rules 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.”

19.The nature of the evidence to be adduced by the Applicant and the admissibility of such evidence will be dealt with at the hearing and there is absolutely no basis for suggesting that the ex parte order dated 29 October 2003 was obtained by fraud.

20.The grounds of appeal advanced by the Respondent had already been dealt with and rejected by this Court on the earlier occasion. We agreed with the views expressed in the judgment dated 3 December 2004.

21.The Respondent could not revive and repeat those grounds in this appeal. He could not have “a second bite of the cherry”.

22.The allegation that Hartmann J’s direction on 8 June 2005 was made without jurisdiction, and was the result of fraud was completely unfounded.

23.The suggestion that Hartmann J was not suitable and unfit to give the directions and/or to sit at the hearing was again entirely without merit. It was a blatant attempt to remove a judge whom the respondent perceived, entirely without any foundation, to have erred in granting the ex parte order for committal.

24.We need only repeat the comment by the Court of Final Appeal in Ng Yat Chi v Max Share Ltd and Anor [2005] 1 HKLRD 473 at 513:

“If the court itself is made the object of such a collateral attack, provided that the judge is satisfied that such attack is in substance no more than a vexatious attempt to re-litigate the exhausted matter, there ought generally to be no question of the judge having to disqualify himself from dealing with the matter. The test for disqualification is whether the circumstances are such as would lead a reasonable, fair-minded and well-informed observer to conclude that that there is a real possibility that the judge would be biased in dealing with the matter…In the situation postulated, it would be plain to such an observer that the attempt to disqualify the judge is itself part and parcel of the abuse and not such as to give rise to any apprehension of bias. For a judge to recuse himself in such circumstances would be to give in to the abuse.”

25.We found no ground to interfere with Hartmann J’s directions at all. The Respondent’s appeal was therefore dismissed with costs to be taxed.

Mr Wesley W C Wong of the Department of Justice for the Applicant.

Respondent: Present, In person.