Re David John Kennedy and Others

FAMV No. 33 of 2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 33 OF 2008 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACV NO. 244 OF 2004)

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Appeal Committee: Chief Justice Li, Mr Justice Bokhary PJ and Mr Justice Chan PJ

Date of Hearing: 31 October 2008

Date of Determination: 31 October 2008

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ :

1.This matter arises out of the liquidation of a company of which Mr Kelly Cheng and Mr Robert Yip are former directors and Mr David John Kennedy is one of the joint and several liquidators appointed by the High Court.  Mr Cheng and Mr Yip moved that court to commit Mr Kennedy for criminal contempt.  He had, without the leave of the court, made various uses of the transcripts of their evidence given in private examinations.  And he had made reports directly to the police instead of pursuing one of the avenues provided by the Companies Ordinance, Cap.32.  They assert, while he disputes, that such conduct amounts to contempt.

2.Upholding his submission of no case to answer, the High Court dismissed their motion to commit.  The Court of Appeal allowed their appeal and remitted the motion for a resumed hearing before the High Court.

3.Mr Kennedy then applied to the Court of Appeal for leave to appeal to the Court of Final Appeal, submitting that this is a civil cause or matter.  Taking the view that this is a criminal cause or matter so that they had no jurisdiction to grant leave to appeal but could only certify a point of law of great and general importance, the Court of Appeal refused leave but said that they would have given a certificate if they had considered their decision to be final.  As it happened, they did not consider their decision to be final.  The point which they would have certified is formulated thus in Mr Kennedy’s Notice of Motion: “The uses to which a liquidator can put transcripts of private examination, in particular the question whether a liquidator is prohibited from providing notes of private examinations directly to the police without first obtaining the approval of the court which had ordered the examination.”

4.Mr Kennedy now applies to us for leave to appeal to the Court of Final Appeal.  Submitting that this is a civil cause or matter, he seeks such leave under s.22(1) of the Court’s statute on the basis that there are involved questions which, by reason of their great general or public importance, ought to submitted to the Court of Final Appeal for decision.  These questions, as set out in the Application for Leave, are :-

“(a)  Whether the function and duties of a liquidator extend to and include investigating and reporting suspected criminal conduct to the authorities.

(b)   The uses to which a liquidator can put transcripts of private examinations, in particular the question whether a liquidator is prohibited from providing notes of private examinations directly to the police without first obtaining the approval of the court which had ordered the examination.

(c)    Whether a liquidator in a voluntary winding-up has available the powers given to a liquidator in a winding-up by the court.

(d)   Whether, and if so in what circumstances, Officers of the Court or other office-holders or persons performing functions under the Ordinance are liable to committal for contempt of court merely because of breach of subsidiary legislation which does not expressly prohibit the conduct complained of.”

5.If this cause or matter is criminal rather than civil, then Mr Kennedy seeks leave to appeal to the Court of Final Appeal under both limbs of s. 32(2) of the Court’s statute.  Under the “point of law” limb, he puts forward the points raised by the questions which we have just quoted.  And under the “substantial and grave injustice” limb, his complaint is that such injustice has been done.

6.The appeal to the Court of Appeal was “Civil Appeal No. 244 of 2004”.  (Lest it may otherwise be thought that we have given the wrong date, it should be mentioned that the Court of Appeal first gave judgment after having reserved it for over a year, and then there was a further judgment by which the Court of Appeal varied its first judgment).  In taking the view that this is a criminal cause or matter, the Court of Appeal thought that some support for that view is derived from a statement by Lord Atkin in Ambard v. Attorney General for Trinidad and Tobago [1936] AC 322 at p.329.  This is that “interferences with the administration of justice, whether they be interferences in particular civil or criminal cases, … when they amount to contempt of Court, are quasi-criminal acts, and orders punishing them should, generally speaking, be treated as orders in criminal cases, and leave to appeal against them should only be granted on the well-known principles on which leave to appeal in criminal cases is given”.

7.That statement is preceded, on the same page, by a reference to “the general prerogative of the Crown to review all judicial decisions of Courts of Record in the dominions overseas, whether civil or criminal”.  Saying that contempt is “quasi-criminal” is to say that it is not really criminal.  And to say that orders punishing contempt “should, generally speaking, be treated as” orders in criminal cases is to say that they are not really orders in criminal cases.  Lord Atkin was not saying that orders punishing contempt are orders in criminal cases.  On the contrary, he was saying they are not.  His point was that, generally speaking, the Privy Council should be as slow to grant leave to appeal against them as their Lordships were to grant leave to appeal against criminal convictions.  In our view, having regard in particular to winding-up proceedings being the underlying matter involved, this is a civil cause or matter.

8.The four questions which we quoted from the Notice of Application are, in our view, reasonably arguable ones which, by reason of the great general or public importance, ought to be submitted to the Court of Final Appeal for decision.  We grant leave under s.22(1). 

Mr Benjamin Yu SC (instructed by Messrs Clifford Chance) for the applicant

Mr John Jarvis QC, Mr Robert Whitehead SC and Mr Eugene Yim (instructed by Messrs Barlow Lyde & Gilbert) for the respondents

Ms Linda Chan instructed by the Official Receiver