Secretary for Justice v. Choy Bing Wing

HCMP 4694/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 4694 OF 2003

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BETWEEN

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Before : Hon Hartmann and Suffiad JJ in Court

Dates of Hearing : 20 and 21 October 2005

Date of Judgment : 25 October 2005

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J U D G M E N T

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Introduction

1.We have before us an application made by notice of motion for committal for contempt.  The application is made pursuant to O.52, r.3 of the Rules of the High Court.  In terms of the application, the Secretary for Justice (‘the Secretary’) seeks the imposition of a sentence of imprisonment, or a fine, or such other order as may be just, against the respondent.

2.The application is founded on the assertion by the Secretary that in certain proceedings before the Court of Appeal which took place in April and May 2003, the respondent made scurrilous accusations of the most profound kind against Mr Justice Rogers VP in an attempt to secure the judge’s recusal from sitting on the appeal.  The allegations were made therefore, so it is alleged, with a clear object in mind; namely, to ensure that the constitution of the Court of Appeal met with the approval of the respondent.

3.It is alleged by the Secretary that inter alia the respondent made accusations that Mr Justice Rogers had in certain earlier proceedings – indeed proceedings which were by then several years old – intentionally perverted justice.  The accusations included allegations that Mr Justice Rogers was a dishonest judge, that he was a ‘crook’ who fabricated evidence and that he was a disgrace to the Hong Kong judiciary. 

4.These allegations, it is asserted, individually and cumulatively, were calculated to and have constituted a serious interference with the administration of justice and thereby constitute contempt.

5.We understand that the respondent is 59 or 60 years of age.  We are told that he is a university graduate and an engineer by profession.  The evidence shows that he is the principal, or one of the associates or partners, in what appears to be an on-going; that is, an active, engineering consultancy known as Bing Choy & Associates.  The consultancy has its offices in the Hong Kong Jewellery Building in Queen’s Road Central.  The letterhead of Bing Choy & Associates shows it to have a fax number : 2854 0578.

6.We are further told that the applicant is no stranger to the courts, having chosen on numerous occasions in the past to represent his own interests in litigation or to advance the interests of others in litigation.

7.Before proceeding to consider the merits of the Secretary’s notice of motion, it is necessary to record that the respondent did not attend the hearing on 20 and 21 October 2005.  Although there was no personal service of the notice of hearing for those dates, having heard submissions from Mr McCoy SC, counsel for the Secretary, we exercised our discretion in terms of O.52, r.3(4) of the Rules of the High Court to dispense with personal service.  Bearing in mind that the liberty of the subject was an issue, this was an exceptional step to take.  In the circumstances, at the outset, we must give our reasons for the exercise of our discretion.

The respondent’s non-attendance at the hearing

8.On 17 December 2003, the notice of motion papers were served personally on the respondent at his offices in Queen’s Road Central.  From that date therefore the respondent was aware of the allegations made by the Secretary as to his acts of contempt.

9.On 8 June 2005, a directions hearing was held before Mr Justice Hartmann.  The respondent was advised of the date of the hearing by registered post.  The respondent however informed the court by letter dated 17 May 2005 that, although he had received notice of the hearing, he would not attend unless the court was able first to satisfy him of its jurisdiction.  In the result, the respondent did not attend the hearing.

10.At that hearing it was ordered that the notice of motion would be heard on 26 September 2005, the following day being reserved.  The sealed order was served upon the respondent in June 2005.  Indeed, the respondent sought to challenge the lawfulness of the order by way of appeal, that appeal was dismissed on 9 August 2005.  The order of the Court of Appeal which was served upon the respondent made direct reference to the dates for hearing of the notice of motion. 

11.The respondent indicated to the court that, in his opinion, the September dates for hearing were provisional dates only.  He was advised, however, that the dates were not provisional and that the hearing would commence on 26 September 2005.  In this regard, the clerk to Mr Justice Hartmann successfully sent a fax to the respondent on 22 September 2005 to the following effect :

“A copy of your letter dated 22 September 2005 addressed to the Secretary for Justice has been placed before Mr Justice Hartmann.

In that letter you say that the hearing date for 26 September 2005 is provisional only and still requires to be confirmed.

The sealed order that was made in the light of Mr Justice Hartmann’s ruling of 8 June 2005 was filed on 16 June 2005, several days later, and states clearly that it is ordered that the notice of motion will be heard on 26 September 2005 with the following day reserved.  That sealed order is not provisional.  In respect of the setting down of the matter, as it has not been amended, it remains a final order. 

In the circumstances, I am instructed by Mr Justice Hartmann to advise you that the hearing set for 26 September 2005 will commence on that date.”

12.The respondent still chose not to attend court on 26 September 2005.  However, it was known that he was due to attend another hearing in the court at 9.30 that morning and it was discovered – through that court only and not by any notice direct to us – that the respondent was apparently suffering from gout and was not well enough to attend that hearing.  In the circumstances, we adjourned the matter to the next day.  A letter was sent to the respondent by the clerk to Mr Justice Hartmann, the letter being faxed to his offices.  A faxed response was received from his offices on the same day, that is, 26 September 2005, the response being signed on behalf of the respondent by a Mr Li.  The response was to the following effect :

“Reference is made to your 2^nd letter of even date afternoon regarding hearing on tomorrow 27/9/2005 at 10.00 am.

Mr Choy is at rest at home and not in the office.  He has been given 3 days medication by the Doctor.  He has suffered heavy pain and such pain seems unlikely to disappear before completion of medication.  He is unfit and impossible to attend Court until completion of medication given the famous side effect of medicine on acute grout attack.

Mr Choy reiterates the full contents of his earlier letters to the Court and/or Secretary for Justice setting out his clear position.”

13.On 27 September 2005, on the basis that, suffering from gout, the respondent may still not be well enough to attend court, we ordered that the hearing of the notice of motion be adjourned to 20 October 2005, the following day being reserved. 

14.A notice advising the respondent of the adjourned hearing dates was sealed on 28 September 2005 and sent to the Bailiff, for personal service.  The Bailiff’s Assistant attempted service at the respondent’s office in Queen’s Road Central on three occasions, each time without success.

15.On 6 October 2005 at 2.30 in the afternoon, the Bailiff’s Assistant went to the respondent’s office.  On arrival, he was informed by an employee or associate, Mr Li, that the respondent was not in.  The Bailiff’s Assistant therefore left a message.

16.The respondent was clearly aware of this visit – and its purpose – because the next day, on the letterhead of Bing Choy & Associates, he wrote to the court, the letter being addressed to Mr Justice Hartmann’s clerk.  It is important to note that the letter bore the case number (HCMP 4694/2003) of this matter.  There was therefore no confusion as to the nature of the proceedings which was the subject of the letter.  The letter commenced :

“I was informed that a Bailiff left a message in my office yesterday intending to serve in vain a notice of hearing on me wasting resources for want of jurisdiction.”  [our emphasis]

17.The letter then went on at some length to dispute the jurisdiction and/or competence of the court to deal with the contempt proceedings instituted against the respondent.

18.It would have been a simple matter of course for the respondent to ascertain from the court or the Bailiff’s assistant to what date the notice of hearing referred.  He did not do so.

19.The Bailiff’s Assistant attempted a second time on 13 October 2005 at 5.15 in the evening to serve the notice of adjourned hearing, again calling at the offices of Bing Choy & Associates.  On arrival, however, a female member of staff said that the respondent was not present.

20.A third attempt was made at 11.15 in the morning of 17 October 2005, again at the offices of Bing Choy & Associates.  Yet again, the Bailiff’s Assistant was informed that the respondent was not in.

21.The Bailiff’s Assistant, however, was not the only person who sought to advise the respondent of the adjourned dates of hearing.  On 7 October 2005, Mr Wong Kin Man, a Senior Government Counsel in the Department of Justice, wrote a letter to the respondent at his office address.  That letter was sent by registered post and a copy was also sent by ordinary post.  Neither was returned.  It must be taken therefore that both were received.  The letter read :

“We refer to the hearing of the above proceedings on 20 and 21 October 2005.  Enclosed please find the Notice of Hearing dated 28 September 2005.

You are hereby reminded of the importance of your personal attendance for the adjourned hearing before the Court.”

22.The respondent’s letter dated 7 October 2005, referred to in paragraph 16 of this judgment, was copied to the Department of Justice.  By letter dated 18 October 2005, Mr Wong replied to that letter in the following terms :

“We refer to your letter to the Clerk to Hon Hartmann J dated 7 October 2005, which has been copied to us.

Your allegations stated therein in respect of this case are categorically denied.  We must reiterate to you that the issue of propriety of the proceedings (such as the alleged mutation of civil law to criminal law) should not and cannot be dealt with by way of correspondence.  Should you consider it necessary, it may be raised for arguments at the hearing of the proceedings on 20 and 21 October 2005.”  [our emphasis]

23.That letter was successfully faxed to the offices of the respondent at around 11.15 in the morning of 18 October 2005.  The transmission record reveals no problems in transmission.

24.In light of this evidence, we were of the view that the respondent had, in fact, learnt of the date of the adjourned hearing but had chosen to ignore it.  We considered it, in all the circumstances, to be the only reasonable inference to be drawn.  But even if we were wrong in that regard, we were of the firm conclusion that the respondent had intentionally evaded the service of any document which informed him of the date of hearing, his purpose being to place himself beyond the reach of the court. 

25.We would add that, although we ordered that the hearing proceed in the absence of the respondent on 20 October 2005, that hearing was itself adjourned to the following day for the completion of submissions.  The respondent was advised of the fact that the hearing would continue the following day.  This is evidenced by the fact that on the late afternoon of 20 October 2005, a fax was sent by the Department of Justice to the respondent at his offices.  The transmission record reveals that it was sent and received without incident.  The fax was to the following effect :

“We refer to the hearing of the captioned proceedings before the Hon. Mr Justice Hartmann and the Hon. Mr Justice Suffiad today in which you were absent.

The Court has ordered that the hearing would proceed in your absence.  We have presented our case against you and made submissions to the Court on the law of contempt.  The proceedings will be continued tomorrow at 10:30 a.m.  As your own interest is at stake, you are reminded of the importance of your personal attendance at the hearing tomorrow.”  [our emphasis]

26.On the following day, however, there was again no appearance by the respondent.  We wish to make it clear that, if the respondent had chosen to attend, we would have ensured that he was given an opportunity to make full representations in light not only of submissions already made but to be made that day by Mr McCoy on behalf of the Secretary.

27.As to our power to direct that the notice of motion proceedings should be heard despite proof of personal service of the notice of hearing upon the respondent, we observe that O.52, r.3(3) directs that service of the notice of motion must be made personally on the person to be committed.  It reads :

“The notice of motion, accompanied by a copy of the statement and affidavit in support of the application for leave under rule 2, must be served personally on the person sought to be committed.”

However, if the interests of justice dictate, we observed that the court may dispense with personal service.  In this regard, O.52, r.3(4) provides :

“Without prejudice to the powers of the Court under Order 65, rule 4, the Court may dispense with service of the notice of motion under this rule if it or he thinks it just to do so.”

28.The authorities are clear that, in terms of O.52, r.3, notice of an adjourned hearing must also be served personally on the person to be committed. 

29.The authorities are also clear that it is only in exceptional cases that it would be right not to give personal service of a hearing, including an adjourned hearing.  See, for example, the judgment of the English Court of Appeal in Phonographic Performance Limited v. Che Fai Tsang (unreported), the Times, 17 May 1985.

30.Dispensation, if exceptionally granted, may be granted in advance or ex post facto; that is, after it is demonstrated that there has been a failure to effect personal service.

31.On our understanding of the relevant authorities concerning procedural regularity in respect of the validity of committal orders, there has in recent years been a change of emphasis in the approach of the courts.  Today, the weight of authority is to the effect that the discretion which is vested in this court pursuant to O.52, r.3(4) is a discretion which must be exercised in a way which, in all the circumstances, best reflects the requirements of justice.  In determining this, the court must not only take into account the interests of the person whose committal is sought for contempt but also the interests of other parties, the Secretary and court users generally, as well as the important interests of upholding the reputation of civil justice in general.  In this regard, see, for example, AXA China Region Insurance Co. Ltd v. Li Yu Ping Ellen [2002] 3 HKC 339, per Stock JA at 359B.

32.We made the order dispensing with the need for personal service on the basis that, this being an exceptional order, it was nevertheless one which best reflected the requirements of justice.

33.The respondent had notice of the original hearing date of the notice of motion on 26 September 2005.  Although he advised another court that day that he was suffering from gout and could not attend the hearing before that court, he did not inform this court.  This, in our view, accords with his stated belief that this court is not, and has never then, competent to deal with the notice of motion brought by the Secretary. 

34.Although we received no direct notice of the respondent’s indisposition, we nevertheless adjourned the hearing.  The respondent, a well-educated man and a litigant himself of some experience, must have known that the matter would be adjourned and not simply abandoned.  Indeed, after the first attempt by the Bailiff’s Assistant to serve notice of the new hearing dates upon him, he wrote to the court acknowledging that the attempt had been made and labelling it a waste of resources ‘for want of jurisdiction’. 

35.Two more attempts were made by the Bailiff’s Assistant to serve the notice upon the respondent.  On each occasion, the Bailiff’s Assistant spoke directly to members of the respondent’s staff at his offices.  The respondent must have come to know of this. 

36.In addition, a letter dated 7 October 2005 was posted by registered mail to the respondent on that same date.  There was no evidence that the registered letter was not duly delivered.  A copy of that letter was sent by ordinary post.  The evidence indicates that this copy letter was received too. 

37.Further, on 18 October 2005, a letter was faxed to the respondent at his offices by the Department of Justice making specific reference to the hearing to take place on 20 October 2005. 

38.When all of these matters are taken into account, and when it is borne in mind that the respondent continues to run a business from his offices, certainly continues to employ staff there and keep in touch with that staff, in our view it is the only reasonable inference to be drawn that the respondent did in fact learn of the adjourned dates of hearing but chose to ignore that information.

39.As we have said, if, however, we are mistaken in this regard, it is, in our view, apparent that the respondent has taken active steps to avoid being served with the notice of the adjourned hearing or to learn of the dates of the adjourned hearing through the letters sent to his offices marked specifically for his attention.  To put it shortly, he has taken deliberate and active steps to place himself beyond the reach of the court. 

Contempt of court : a consideration of legal principles

40.As a first principle, we acknowledge that the guilt of a person charged with contempt of court, which is an offence of a quasi criminal nature involving the liberty of the subject, must be proved beyond reasonable doubt.  In this regard, see, for example, Re Bramblevale Ltd [1970] Ch 128. 

41.It has long been recognised that the purpose of using the discipline of contempt of court is not to protect the dignity of judges individually; that is, to protect their feelings, but is instead to prevent undue interference with the administration of justice.  In Helmore v. Smith (No.2) (1886) 35 Ch D 449, Bowen LJ said that —

“The object of the discipline enforced by the Court in case of contempt of Court is not to vindicate the dignity of the Court or the person of the Judge, but to prevent undue interference with the administration of justice.  The question, therefore, here is whether there has been an interference with the administration of justice.”

42.As the High Court of Australia expressed it in Gallagher v. Durack (1983) 152 C.L.R. 238, at 234 :

“The authority of the law rests on public confidence, and it is important for the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts or judges.”

43.In a seminal statement to this effect, Dodds CJ said the following in R. v. Fowler (1905) 1 Tas LR 53, at 56 :

“These powers [i.e. to commit for contempt of court] are given to the Judges in order to keep the course of Justice free – powers of great importance to society, for by the exercise of them law and order prevail.  They have nothing to do with the personal feelings of the Judge, and no Judge would allow his personal feelings to have any weight in the matter; the powers are exercised simply for the good of the people and whenever Judges have exercised these powers they have done so from a sense duty and under pressure of some grave public necessity.”

44.The courts, of course, are not sheltered by the law of contempt from criticism, even robust criticism.  As was said in Wong Yeung Ng v. Secretary for Justice [1999] 2 HKC 24, judges must rely upon merited good reputation for protection against bona fide censure even if it was fierce and misguided.  Such criticism was not contempt.

45.It is to be emphasised therefore that contempt is the wrongful interference with the administration of justice.  In R. v. Gray (1900) 2 Q.B. 36, Lord Russell stated the position, which remains equally valid today, in the following terms :

“Further any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the Courts is a contempt of Court.  The former class belongs to the category which Lord Hardwicke L.C. characterized as ‘scandalizing a Court or a judge.’  That description of that class of contempt is to be taken subject to one and an important qualification.  Judges and Courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no Court could or would treat that as contempt of Court.  The law ought not to be astute in such cases to criticize adversely what under such circumstances and with such an object is published; but it is to be remembered that in this matter the liberty of the press is no greater and no less than the liberty of every subject of the Queen.”

46.In Ambard v. Attorney-General for Trinidad and Tobago [1936] AC 322 at 335, Lord Atkin said —

“… no wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice.  The path of criticism is a public way: the wrong headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune.  Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”

47.In the present case, it is Mr McCoy’s submission that the respondent in this case has not merely exercised his right of criticism, doing so in good faith.  He has gone far beyond that.  Mr McCoy has said that the respondent’s contempt has consisted of scurrilous abuse of Mr Justice Rogers in an attempt, by scandalising him, and through him the Court of Appeal, to compel him to recuse himself.  Scandalising of the court is a long accepted form of contempt.  In Secretary for Justice v. Oriental Press Group Ltd [1998] 2 HKC 627 the court dealt with this form of contempt.  The headnote in this regard reads :

“(1)   The rationale for contempt by ‘scandalising the court’ was that it had always been regarded as vital to the rule of law for respect for the judiciary to be maintained and for their dignity to be upheld.  The common law offence of scandalising the court did not exist simply to protect the judiciary.  It was not intended to vindicate the judge as a person.  It existed to maintain public confidence in the courts and the judges.  Accordingly the law distinguished between criticism and scurrilous abuse of a judge.  Scurrilous abuse meant personal attacks on a judge in abusive language which vilified the judge rather than pointing out his errors.  The reason why such abuse constituted contempt of court was because of the effect it might have on public confidence in the due administration of justice.  Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225, Ambard v A-G for Trinidad and Tobago [1936] AC 322 and R v Commissioner of Police for the Metropolis, ex p Blackburn (No 2) [1968] 2 QB 150 followed (at 655I-655C, G).”

48.The offence of contempt by scandalising the court does not require proof of an actual intention to undermine public confidence in the administration of justice.  In this regard, see Secretary for Justice v. Oriental Press Group Ltd (cited in paragraph 47 above). 

49.The offence was the making of statements which were calculated to lower the repute of the court or a judge and thereby have the effect of undermining public confidence in the administration of justice.  It was not necessary to establish that the administration of justice was in the particular case in fact in peril.  What had to be established instead was a real risk; that is, a good chance as opposed to a mere possibility, that the statements, judged by reference to their impact upon a reasonable person, would have the tendency to undermine confidence in the administration of justice.  Whether such a risk had been established depended on the circumstances of each case. 

50.As the court said in Wong Yeung Ng v. Secretary for Justice (cited in paragraph 44 above), and here we cite from the headnote :

“The spirit in which the attack against the judiciary was made was important.  Bona fide, balanced and justified criticism was susceptible to reasoned answer or even acceptance.  Sustained scurrilous, abusive attacks made in bad faith, or conduct which challenged the authority of the court, were not susceptible to reasoned answer.  If they continued unchecked they would almost certainly lead to interference with the administration of justice as a continuing process.  The administration of justice needed to proceed in circumstances of calm and dignity in order to be effective (at 44D-F, 45A-C).”

51.When a person is accused of making statements which scandalise the court and thereby constitute contempt, the defence may be raised of fair comment.  In our judgment, however, a defence of fair comment is not available to a person who makes criticisms in bad faith.  In establishing whether in any particular case there has been bad faith it is permissible to examine what has in fact been said for its content and approach.  Statements which contain no reasoning or rational discussion but only abuse and invective, statements which are made only to injure the character of individual judges do not constitute statements made in good faith by way of fair comment.  They are statements motivated by malice; that is, bad faith. 

52.In Wong Yeung Ng v. Secretary for Justice (cited in paragraph 44 above), Mortimer VP said the following, which we consider to be of particular relevance in the present case :

“Bona fide, balanced and justified criticism is susceptible to reasoned answer or even acceptance.  Sustained scurrilous, abusive attacks made in bad faith, or conduct which challenges the authority of the court, are not susceptible to reasoned answer.  If they continue unchecked they will almost certainly lead to interference with the administration of justice as a continuing process.

…

One need go no further than to consider the likely effect upon the confidence of the ordinary citizen or an ordinary litigant in the administration of justice in its widest sense if an unsuccessful litigant, who is also a powerful subject, indulges in sustained attacks upon the court or judges which go unchecked.”

53.Mortimer VP went on to say the following, which we again consider to be of continuing relevance :

“… the relatively small size of the Hong Kong’s legal system is important.  As is demonstrated in this case communication with a very substantial proportion of the population is easily achieved.  Proceedings in court are widely publicised.  Many judges are known by name because of this reporting.  Confidence in our legal system, the maintenance of the rule of law and the authority of the court are matters of special importance in our society.  There are frequent, if misconceived, expressions of anxiety in this respect.  There is reason to believe that the ordinary citizen in Hong Kong regards the court as his ultimate and sure refuge from injustice and oppression.”

Events leading up to the alleged act of ‘scandalising the court’

54.In January 2002, the respondent was appointed a director of a company called Phoon Lee Piling Co. Ltd (‘Phoon Lee’).  It was ostensibly in representing the interests of that company in an action instituted by it against the Hong Kong Housing Authority (‘the Housing Authority’) that the respondent is said to have committed his contempt of court.

55.It seems that in or about 1998, well before the respondent was made a director, Phoon Lee had been employed as a sub-contractor on certain construction works undertaken on behalf of the Housing Authority.  In the course of those works, it was suspected that there had been defective piling.  A criminal prosecution ensued and among those prosecuted was the site agent for Phoon Lee.  In September 2000, the site agent was acquitted of the criminal charges brought against him.  The respondent had given expert evidence for the defence at the trial. 

56.Several months after the acquittal, Phoon Lee and its founding director, Mr Chung Kau, instituted civil proceedings in the High Court against the Housing Authority : action number 119 of 2001.  The proceedings arose out of the fact that in January 1999, at about the time when allegations of defective piling had first been made, the Housing Authority had issued written instructions that none of Phoon Lee’s staff were to be permitted onto the building site.  In addition, the Housing Authority had held a press conference at which allegations of defective piling had been made.  It was claimed by the plaintiffs that these actions by the Housing Authority had so undermined the ability of Phoon Lee to engage in any piling work in Hong Kong that the company’s business had effectively being destroyed.  The causes of action pleaded by the plaintiffs included defamation and, flowing from that, an allegation of malicious falsehood.

57.The Housing Authority applied to strike out the allegations of defamation and malicious falsehood on the basis that there were no material facts pleaded to support those allegations.  For some reason, the Housing Authority saw fit, in support of its application, to file an affidavit asserting among other things that certain of the piling work carried out by Phoon Lee had been short.

58.The respondent, who shortly before had been made a director of Phoon Lee, was given permission to represent the company on the basis that it had insufficient funds to obtain professional legal representation.

59.The respondent was of the view that the affidavit filed by the Housing Authority was dishonest, being based on perjured evidence, and, by that fact, he said, the Housing Authority’s application should be refused.

60.In February 2002, the application to strike out was heard before the master.  The master found for the Housing Authority, ordering that the pleadings alleging defamation and malicious falsehood be struck out.

61.The plaintiffs appealed.  When the appeal was heard by Deputy Judge Cheung, the respondent, still appearing for Phoon Lee, sought again to rely on the assertion that the affidavit filed by the Housing Authority was fraudulent and, by that fact, the Authority should be prevented from obtaining its striking out order. 

62.On the basis, however, that the question in issue was a technical one, going only to the sufficiency of pleadings, the Deputy Judge did not accede to the respondent’s submission.  On the substantive issue, he agreed that the plaintiffs’ pleadings were defective and the appeal was dismissed.

The acts of contempt

63.On 22 April 2003, having learnt that Mr Justice Rogers would be one of the judges hearing the appeal, the plaintiffs filed a notice of motion seeking an order that the judge should be disqualified from presiding.  We note that the plaintiffs had previously written to the court objecting to certain other judges hearing the appeal.  The grounds of the application filed in respect of Mr Justice Rogers make for startling reading.  They are couched in the following terms :

“1. His Lordship Mr Justice Rogers VP is seen and found to be a dishonest judge by Mr B.W. Choy (representative of 1^st Plaintiff) in his experience with the adjudication of cases by Rogers VP.

2. The present appeal is against the crookery acts of the judges below.  It is a real danger for Rogers VP to hear such cheatings of the court below due to similar cheatings also found to have been done by Rogers VP in the adjudication of earlier cases before him.”

64.In support of the application, the respondent filed an affirmation, described by him as his 12^th affirmation, in which he purported to show from his personal experience that Mr Justice Rogers, in earlier judgments, had acted dishonestly and in other ways which were reprehensible.  The affirmation is couched in extreme language.  It is necessary to cite extensively from this affirmation to illustrate the unrestrained invective that was employed. 

65.In the first paragraph, the respondent said the following :

“I make this 12^th Affirmation to show evidence of my personal experiences and findings pointing at cheatings by Rogers VP in adjudicating earlier cases by him to support the Motion for him to be discharged from the appeal hearing as detailed herein below.”

66.The respondent continued in paragraphs 2 and 3 by saying the following :

“Rogers J, as he then was, showed clear partiality, bias and pre-judgment by being angry with the Solicitor, Mr M.K. Tam of Official Receiver and Trustee in HBC 242 of 1992 who pointed out to him that the bankrupt, Ng Yat Chi, had locus standi to lodge the petition to wind up the company, Max Share Limited in CWU 321 of 1996 by submitting the legal authority In re 9 Meat Supplies (Guildford) Ltd [1966] 1WLR1112.  Rogers J, as he then was, showed to have obstructed justice by turning blind eye and acted against the said authority ordering the dismissal of the petition which was subsequently reversed by the Court of Appeal and Court of Final Appeal basing on the said authority. …

Despite the above apparent cheating conduct in prescribing justice in CWU 321 of 1996, Rogers VP continued to carry on cheating in the hearing of CACV 204/2000 on 31/10/2000 by handing down a fraudulent judgment on 23/11/2000 in reversing the judgment of the Honourable Yuen J as she then was by fabricating and scavenging evidence as absolutely true fact of a share valuation report already found to be in dispute by Yuen J due to the objection of such share valuation report by the Petitioner and such objection accepted by the Defendant. … The grossly abusive and inventive interference by Rogers VP on Yuen J’s fact finding process can only be seen to be dishonest.”

67.The respondent concluded by affirming the following :

“Rogers VP denied the Petitioner of CACV 204/2000 a certificate for leave to Appeal to Court of Final Appeal without giving a written reasoned judgment on 13/7/2001.  Such refusal in prescribing justice can only be and must be due to dishonesty in carrying out his duty as a judge because honest and competent judges will always give detailed reasoned judgment why they make the decision/judgment as required under the Common Law Legal System.  With such conduct, the Appeal Committee of Court of Final Appeal then purported to make final verdicts as if it were the Full Court of Final Appeal.

We pray that because of the aforesaid apparent cheatings of Rogers VP, Rogers VP should be and must be driven out of a competent and honest judicial tribunal.”

68.In his affirmation, therefore, the respondent did not suggest that Mr Justice Rogers had been mistaken in law or that he had neglected to consider certain authorities or act in accordance with accepted rules or procedures.  Instead, he made grave, and in our view totally unfounded, accusations going to the honesty and integrity of the judge as a judge.  To an educated man like the respondent, the difference between mistake or failure in good faith and deliberate acts of dishonesty must be apparent.  There is a chasm between the two. 

69.The respondent accused the judge of ‘cheating’ in his adjudication of earlier cases and of showing ‘clear partiality’ and ‘bias’ and ‘pre-judgment’ in respect of those cases.  He further accused the judge of obstructing justice and of ‘fabricating’ and ‘scavenging’ evidence.  He continued by accusing the judge of ‘grossly abusive’ and ‘inventive’ (which must mean fabricated) interference.  He concluded by labelling the judge as dishonest and saying that for these reasons the judge could not sit on any ‘competent and honest’ judicial tribunal. 

70.The application itself was heard together with the substantive appeal on 2 May 2003 before Mr Justice Rogers and Madam Justice Le Pichon JA.  Although there had been an interval of some nine or ten days between the filing of the application with its supporting affirmation and the hearing, the respondent had not seen fit to reconsider his allegations or to temper them in any way.  Indeed, the respondent commenced his submissions by saying the following :

“We have applied for Rogers VP to be removed from this court in a notice of motion submitted on 22 April 2003, because we consider that you are a crook, a serious crook.”

71.During the course of submissions by Mr McCoy, we had the benefit not only of being able to read a verbatim transcript of what was said during the hearing but, importantly, of being able to listen to a tape recording.  That recording gave us a very real sense of the manner in which the words were spoken and of their emotional content.

72.The attack on Mr Justice Rogers was manifestly pre-meditated and deliberate, the subject matter of a formal application filed with the court.  It was made with a specific intent; namely, to ensure that Mr Justice Rogers did not hear the appeal.  ‘Forum shopping’ is deprecated.  In this instance, the respondent attempted to effectively have the court constituted as he wished by indulging in an abusive attack on the integrity of the individual judge.

73.The respondent’s submissions on behalf of Phoon Lee, if they can be so described, purported, initially perhaps, to be based on some grounds of justification, even if those grounds were confused and lacking any attempt at a semblance of logical construction based on rational analysis.  However, as the respondent’s emotions got the better of him, the submissions quickly degenerated into a tirade of invective.  In our view, it is accurate to say that the judge, who throughout the hearing kept his emotions well in check, was subjected to a verbal assault. 

74.To illustrate our meaning, it is necessary to cite extensively from the verbatim transcript.

75.At the outset, in a confused manner, there being no real attempt at any rational argument, it appears that the respondent attempted at least to base his submissions on the conduct of the judge in certain earlier matters, indeed matters which by then were several years old.  In this regard, the transcript reads :

“Respondent:   The reasons you are a crook can be seen in my twelfth affirmation.  On 20 November 1996 in the court winding-up case 321 I was in court, Mr M K Tam the solicitor for Official Receiver and Trustee tried to assist the court that Ng Yat-chi the bankrupt, whose name was on the register – it was and is on the register of Max Share Company Limited – has the locus standi to lodge the petition and he did not have that authority when he tried to help you, and you give him permission, very angrily, to his offers and he took back after half an hour, the authority.

Rogers VP: Yes?

Respondent:    I’m continue, I just take out the authority.  The authority is called In re 9 Meat Supplies (Guildford) Ltd, and on that page 1116 the WLR [1996] Mr M K Tam submitted to you that the petition was presented in December 23^rd 1965 by the bankrupt, but in substance the petition was that on his trustee in bankruptcy the bankruptcy make the position in order to overcome the difficulty raised by the decision in Re Bolton (HL) Engineering Limited.  You were very angry with Mr M K Tam and say it is over to me that because we give you trouble how to overcome this authority.  And then your decision, and again you play with Winston Poon [a senior counsel], both of you in the court play a dirty game – dirty habit.  That’s why I say you are a crook.

And in that hearing Winston Poon told you, ‘So what Max Share make false accounting?  So what, nothing to do with the petitioner.’  It’s a terrible thing for a court – for a judge to say that in court.  You can take out the video – the tape.  And I ask for that tape.  You can take it out and Power – the Chief Justice at that time, Mr Power, order you to release the tape and you tried to refuse.  And therefore in your decision handed down on the November 26^th 1996 you did not make – describe – make your decision with the authority known to you by Mr M K Tam.  And then erase – I was the 2^nd petitioner in that hearing.”

76.The respondent continued by refusing to address the judge by his customary title and described what he called the judge’s ‘cheating’ as being a ‘dirty trick’ :

“My Lord – my Rogers, not my Lord – you are not quite entitled to be called a Lord.  It’s okay that cheating was had been … was made by you.  If a judge made cheating it’s okay if they got authority and you just throw it away in the rubbish bin and make decision and play dirty trick with Winston Poon in court and order … and struck out the petition of Mr Ng Yat-chi on behalf of me.  That is very dirty and filthy of you.”

77.With his anger clearly building, the respondent then said :

“You don’t look at me in such angry.  I look at you with much anger because in Hong Kong your name has been published to the whole world now, to the United States Stock Exchange Committee because the dirty thing you have created in Hong Kong; that name is a disgrace.”

78.The respondent then went on to refer to a case concerning the winding-up of a company called Max Share Limited.  It was the applicant’s contention that at first instance certain findings of fact had been made by Yuen J (as she then was) which had been overturned on appeal by Mr Justice Rogers.  In this regard, the respondent said :

“The shares – value of the shares she found arguable and not accepted, she threw such evidence in the rubbish bin and now in your judgment of the Court of Appeal you reverse Yuen’s judgment …

The share ratio report has – was thrown in the rubbish bin by Yuen J.  And now it’s scavenging, fabricate in fact to re-word Yuen J’s order for winding-up.  And worse still, you know, under the joint declaration between China and Britain, all the financial companies – all the companies in Hong Kong under Chapter 1 state destination – state can never cover those companies – stake companies, they are financial – still financial under Chapter 1.  And now you break the law, you include China Resource of the debt in your consideration.”

The respondent continued in a very emotional tone, his voice rising to a shout :

“How could that be simply cheating?  Therefore you interfere in Yuen J’s finding.  You fabricate, you scavenger such evidence from the rubbish bin and now what has been played to you between Winston Poon and you?  Winston Poon – there must be a lot of things – outside schemes.  Can there have been cheating?  How can Hong Kong court be cheating, enable China Resource Holding to cheat in America’s stock exchange?  It’s a very serious matter.  Hong Kong court – when is the Hong Kong court because of you.  Shame and disgrace.  You are a crook.”

79.With the bounds of restraint abandoned, the respondent then said :

“You can overcome this morning by turning me away or by doing any unlawful act you do, but you can’t stop the whole world looking at you now because your name has been well established to the whole world …

Because of your cheating, you are a crook, how can a crook hear – sit in a competent court to hear our appeal?  And therefore you must say that – we must apply that you must be removed.”

80.By this stage, the respondent was involved in an exercise solely of intimidatory abuse.  One short exchange illustrates what we mean :

“Respondent: You don’t look at me in such a way, I can look at you in that way because you are a crook.”

Rogers VP: I’m not looking at you in any way, Mr Choy, I’m listening to what you’ve got to say.”

81.The respondent concluded his submissions by saying :

“And now it’s the evidence and I apply for you to be removed.  And you make your own ruling.”

82.The judge gave a short response :

“The motion is dismissed and reasons will be given in writing in due course.”

83.The respondent, however, was not prepared to accept the ruling.  He responded in the following manner :

“What’s the point of doing all this this morning?

…

You are a crook.  If you cannot prove to me you are not a crook how can I continue with the hearing?  Until you clear yourself you are a crook.  I sit here now until 1 o’clock you must clear your own dirty and filthy name, you are a crook.  If you don’t clear your name you cannot sit on the chair as the Vice President of the Hong Kong Court of Appeal.  You must clear your name.

… Now, people point finger at you, you are a crook.  And your name has been published world wide.  That’s a terrible thing.  You are a company judge in Hong Kong, a company law reform judge in Hong Kong, you will be – your name will appear later on in the whole world.  You do not clear your name and still insist carry on, carry on.  What’s the difference, at the end of the day waste my time, waste everybody’s time.  This matter is to do with your perjury of these people.  Crook here – crooks – two crooks.  How can Hong Kong Court become such a dirty and filthy way?”

84.There is nothing in these words that even pretends to persuasion or argument.  We emphasise again, however, that this was not merely a moment of exasperation by an individual overcome by the stress of litigation.  It is, in our view, an exercise in intimidation, a clear attempt by the respondent to have the court constituted as he wishes it and to do so by means of heaping one extreme accusation upon another.  In our opinion, the accumulation of language constituted of itself a form of violence.  A more timid judge may well have been overwhelmed.

85.It is also apparent that the respondent was well aware that his actions could amount to a contempt of such severity as to demand his imprisonment.  Indeed, he saw fit to challenge the court to take action against him :

“How can a crook hear submission, after you clear your own name?  Either you telephone Andrew Li [the Chief Justice] and get instructions or you tell department secretary to shove me and put me down in gaol – defending you.  Otherwise there’s no hearing for today … Now, you are too obstinate – I sit here and wait for you to telephone Andrew Li that Bing Choy make allegation I am the crook, or you ask the Secretary for Justice to serve on me contempt of the court and put me down in gaol.  You have two choices this morning.  I wait for your choice.”

86.Mr Justice Rogers asked the respondent on several occasions to proceed with the substance of his appeal; namely, the appeal against the striking out order.  The respondent refused to do so :

“Rogers VP: Mr Choy, your appeal has been listed for hearing in this court, would you kindly put your appeal or abandon it.

Respondent: You are only a member of the judiciary.  There are so many competent and honest judges in Hong Kong, why can’t we have honest, competent vice-president to sit in front of me, rather than you?  You have been openly in court that you are a crook.  I’ll repeat, you are a crook.  How can you insist that a crook can hear, can prescribe, can do justice – can administer justice?  You can only cook justice, you can never admit this part.

It’s up to you now, I sit here, I’m ready.  You can ask for the policeman to get me down to gaol because I’m saying you are a crook.”

87.Appreciating that the respondent had by now lost emotional restraint, Mr Justice Rogers said that the court would adjourn for ten minutes.  But even that attempt was dogged by accusations of crookery, the final exchange being recorded as follows :

“Rogers VP: This court will return at quarter to 11.  If you don’t conduct your appeal, this court will have no alternative but to dismiss it.

Respondent: A crook can never dismiss an appeal.”

88.During the ten minute interval, the respondent left the court and did not return.  In the judgment of Mr Justice Rogers handed down on 20 May 2003, the following is written :

“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 or outside.  In the circumstances the appeal was taken as abandoned and accordingly dismissed.  In dismissing the plaintiffs’ appeal the court considered the decisions of the master and the judge in the court below.  I consider that there are no grounds for disturbing the conclusions and decisions to which the master and judge have come.”

Conclusion

89.In our view, the written words in the respondent’s affirmation filed in support of his application and the tirade of abuse which he heaped upon the judge during the course of the application are both – individually and taken together – examples of the most serious scandalising of the court in an attempt, by that scandalisation, to achieve a specific, calculated result.  That result, which in the event the respondent failed to achieve, was the removal of Mr Justice Rogers from the hearing of the appeal. 

90.It is manifest, in our view, that the respondent was not exercising in good faith any right of ordinary criticism, even if misguided.  Instead, he indulged in sustained scurrilous, abusive attacks on the integrity of Mr Justice Rogers, and through him the court itself.  His attacks were not susceptible to any form of reasoned answer.

91.We have examined the judgments which were the purported basis upon which the respondent criticised Mr Justice Rogers.  It is not for us to consider whether in those judgments, and any appeals flowing from them, Mr Justice Rogers was or was not correct in law.  All that need be said is that we have been able to find nothing which might even begin to suggest that Mr Justice Rogers was deserving of any of the abuse to which he was made subject by the respondent.  The respondent’s accusations were totally unwarranted and baseless.  There can be no justification for them.  They were made in bad faith.  To repeat what we have said earlier, they were made to achieve a specific end which the respondent saw at the time as being to his advantage as the representative of a litigant. 

92.We are satisfied beyond reasonable doubt, therefore, that the respondent’s abuse and invective constituted a serious contempt of court, one which had the real risk, and certainly, in that, the real tendency, to interfere with the due administration of justice in this Territory. 

93.The respondent is therefore committed for his contempt. 

Further action

94.Upon reflection, we are of the view that the respondent should be brought before the court so that he may, if he wishes, make representations, before we determine what the consequences to the respondent of his contempt should be.  To that end, we direct that a warrant be issued for the arrest of the respondent so that he may be held in custody until such time as he may be brought before this court to answer for his contempt.

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

Respondent, in person, absent