Secretary for Justice v. Choy Bing Wing
Read the full judgment text of HCMP 4694/2003 on BabelCite. This High Court CFI judgment was delivered on 12 December 2005.
1. In October 2003, the Secretary for Justice instituted notice of motion proceedings against the respondent pursuant to O.32 of the Rules of the High Court. In terms of those proceedings, she sought the respondent’s committal for contempt of court or such other order as this court deemed just.
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HCMP 4694/2003 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO. 4694 OF 2003 --------------------- BETWEEN
---------------------- Before : Hon Hartmann and Suffiad JJ in Court Date of Hearing : 6 December 2005 Date of Judgment : 12 December 2005 ------------------------------------------ SECOND JUDGMENT ------------------------------------------ Introduction 1.In October 2003, the Secretary for Justice instituted notice of motion proceedings against the respondent pursuant to O.32 of the Rules of the High Court. In terms of those proceedings, she sought the respondent’s committal for contempt of court or such other order as this court deemed just. 2.The respondent made a number of preliminary challenges to the lawfulness of the proceedings. He was unsuccessful. In the result, the notice of motion came on for hearing before us on 20 October 2005. The respondent chose not to attend. 3.On 25 October 2005, we gave our judgment : the first judgment. We found that the respondent had been guilty of a serious contempt and ordered that he be committed for that contempt. 4.As to the determination of an appropriate penalty, we were of the view that the respondent should be brought before us and given the opportunity to make representations before we determined what penalty, if any, should be imposed. We therefore issued a warrant for committal of the respondent requiring those to whom the warrant was addressed to apprehend the respondent and to hold him in safe custody until such time as he may be brought before us to answer for his contempt. In fact, for reasons to which we refer later in this judgment, two warrants were issued, the second replacing the first. Both of those warrants contain amendments to the prescribed form, No. 85A, found in Appendix A to the Rules of the High Court (page 1543). 5.As we understood it, the respondent was arrested pursuant to our second warrant on 5 December 2005. He was brought before us the following day. 6.The respondent sought to address us on two substantive matters; first, the issue of this court’s jurisdiction and, second, the validity of the warrant in terms of which he had been apprehended. 7.As we had not yet determined a penalty we did not consider ourselves functus. We therefore permitted the respondent to address us on his two substantive issues. 8.Having heard his submissions, and having heard briefly from Mr Wesley Wong, counsel for the Secretary for Justice, we remained satisfied, first, that we did have jurisdiction pursuant to O.52 of the Rules of the High Court to commit the respondent and, second, that the warrant under which he had been apprehended was a lawful warrant. We said that we would give our reasons later. Those reasons are contained in this judgment : the second judgment. Jurisdiction 9.It was the respondent’s contention that the contempt of which he stood accused was a criminal contempt and accordingly, in law, he could only be tried in a criminal court upon indictment. It followed, at least as we understood his submissions, that O.52 of the Rules of the High Court gave no jurisdiction in respect of a criminal contempt, the Order giving jurisdiction only in respect of a contempt classified as a civil contempt. 10.Traditionally, contempt has been classified as being either ‘criminal’ or ‘civil’. A civil contempt involves a breach of a court order. If there is such a breach, it is normally for an aggrieved party – invariably the party in whose favour the court order has been made – to raise the matter by way of a complaint to the court. A criminal contempt is broader in compass, involveing conduct which interferes with the due administration of justice. A criminal contempt is a matter for the Secretary for Justice to raise, acting as the guardian of the public interest in ensuring the protection of the due administration of justice. 11.In so far as it takes him, the respondent was therefore correct in asserting that the contempt of which he stood accused when proceedings commenced was a criminal contempt. 12.But, as Sir John Donaldson MR noted in Attorney-General v. Newspaper Publishing Plc [1988] Ch 333, whatever the value of the classifications in the past, there was a danger that they now tended to mislead rather than assist. He noted that the standard of proof was the same for both; namely, the criminal standard. When analysed, he said, a civil contempt was no more than a special form of what is classified as a criminal contempt. 13.On our reading, O.52 does not differentiate between criminal and civil contempts. We can find nothing in that Order to the effect, as the respondent would have it, that it is only applicable in respect of civil contempts. It is plain, we believe, that an applicant (be it an aggrieved litigant or the Secretary for Justice) may seek committal for contempt under O.52 whether the contempt is of the nature of a civil or criminal contempt. 14.It is true, of course, that proceedings in respect of a criminal contempt have in the past been instituted by way of indictment. However, the authorities make it clear that this procedure is now undesirable. It is therefore not now the practice to proceed by way of indictment. The preferred practice in respect of criminal, as well as civil, contempt is to proceed by way of committal proceedings pursuant to O.52. 15.In R. v. D [1984] 1 AC 778, a judgment of the Court of Appeal, Watkins LJ said the following :
The learned judge continued :
16.The Secretary for Justice therefore, in our opinion, had open to her two courses of action, either by way of a criminal indictment, an ‘almost ancient’ procedure which today, except perhaps in the most exceptional cases, is considered to be undesirable, or by way of notice of motion proceedings seeking committal pursuant to O.52. The fact that the respondent, as we understood it, in order, he hoped, to be able to cross-examine Rogers VP in a criminal trial, would have preferred to have been made the defendant in criminal proceedings is not a matter which goes to jurisdiction. The Secretary for Justice was clearly entitled to proceed against the respondent pursuant to O.52, that being the desired procedure in accordance with modern practice, and this court clearly had, and has, the jurisdiction to determine that application. The warrant for committal 17.The respondent submitted that the warrant for committal under which he was apprehended and brought before us was invalid because it was not exactly in the prescribed form; that is, Form 85A in Appendix A to the Rules of the High Court. 18.As we have said earlier, we had in fact issued two warrants for committal. The first warrant read as follows :
19.It became apparent to us, however, that the Chief Bailiff and his assistants, without the aid of the Police, were having considerable difficulty locating the respondent in order to serve the warrant upon him. In light of this, we asked the Chief Bailiff to report to us and, in a hearing open to the public, having heard from counsel for the Secretary for Justice, we directed that a new warrant should be issued, replacing the existing warrant. This warrant was essentially the same as the old warrant but was addressed also to the Commissioner of Police and his officers. In this regard, the second warrant is headed :
20.The prescribed form, No. 85A, reads as follows :
21.It will be seen from a comparison of the prescribed and amended forms that the purpose of amending the warrants was to accord with our direction contained in the first judgment; namely, that, before determining an appropriate penalty, if any, in respect of the respondent’s contempt, he should be brought before us and given an opportunity to make representations. This in fact occurred. The sentence of imprisonment was imposed only after the respondent had been able to make representations in respect of the substantive issues referred to in this judgment and also by way of a plea in mitigation. 22.O.1, r.9(1) of the Rules of the High Court reads :
23.O.1, r9(1) is to be read in conjunction with s.37(1) of the Interpretation and General Clauses, Cap.1 which reads :
24.Despite the protestation of the respondent that a prescribed form which bears on the liberty of the subject cannot be amended in any way, it is clear in our view that such amendments are permitted. Amendments are permitted when the requirements of a particular case will render the form suitable as an instrument to achieve its real objective. In the present case, the objective was to ensure that the respondent was brought before us with the minimum delay so that he could be heard on the question of penalty before any period of imprisonment, if that was to be imposed, was ordered. As we saw it, that was for the benefit of the respondent, looking to his right to be heard. 25.In our judgment, the variations to the warrants have not affected the substance of the warrants and both were at all material times lawful instruments. Costs 26.At the conclusion of the hearing on 6 December 2005, counsel for the Secretary for Justice, Mr Wesley Wong, sought an order for costs in favour of the Secretary in respect of the notice of motion proceedings before us. Clearly, in our view, the Secretary is entitled to an order. 27.Mr Wong, however, submitted that in all the circumstances an appropriate order would be one in terms of which indemnity costs were awarded against the respondent. 28.In this regard, Mr Wong also made mention of an order of 14 January 2004 in terms of which the respondent’s notice of motion to strike out the contempt proceedings was dismissed by the Chief Judge, sitting at first instance. That order awarded costs to the Secretary for Justice but reserved the issue of whether they should be calculated on an indemnity basis until after the substantive proceedings had been concluded. Mr Wong submitted to us that costs in the interlocutory proceedings before the Chief Judge should also be calculated on an indemnity basis. 29.We can see little in the conduct of the proceedings before the Chief Judge to warrant the respondent, who was the applicant in respect of those proceedings, being ordered to pay punitive costs. His application may have been somewhat tenuous in law but it cannot be said, in our view, that the respondent, who represented himself in those proceedings, knew that his application had little or no merit and, through that, proceeded in an underhand or deceptive way simply ‘to buy time’ or to use the application as a method of denigrating the court. We are not therefore prepared to make an order that the costs awarded in terms of 14 January 2007 be awarded on an indemnity basis. 30.The matter is not so easy to resolve in respect of the costs before us. On all the evidence, we came to a finding that the respondent did his best to put himself beyond the reach of the court, attempting to conduct his defence not by personal appearances before us but instead from a distance by way of correspondence of a highly confrontational kind, that correspondence often demanding that the court itself prove matters of law before the respondent would consider submitting himself to its jurisdiction. The respondent’s attempt to put himself beyond the reach of the court in this way undoubtedly caused delay and was the reason for one or two unnecessary hearings. 31.The power to order taxation on an indemnity basis encompasses those cases where the litigant has conducted his case in an improper or oppressive manner, where his actions have irrationally incurred costs or costs that are out of all proportion to what should otherwise have been incurred. In deciding whether costs on an indemnity basis should be awarded, the circumstances of each case must be considered. 32.Contempt proceedings do not by their nature alone attracting indemnity costs. As we have said, this has not been the easiest matter to determine but, in our view, the actions of the respondent – viewed in light of the fact that his liberty was at stake and that he did not, for whatever reason, accept the jurisdiction of the court – cannot be described in this case as being so oppressive or unreasonable as to warrant punitive costs. Yes, there were delays and one or two extra hearings were necessary. But the respondent will not escape financial responsibility for costs wasted in this regard. The issue is simply the level of costs. 33.In all the circumstances, this being a border line case, we are of the view that it would not be appropriate to order costs on an indemnity basis. Costs are therefore ordered on a party and party basis only.
Mr Wesley Wong, DPGC of the Department of Justice, for the Applicant Respondent, in person, present |
Cases cited in this judgment
Further hearings and rulings under HCMP 4694/2003