Secretary for Justice v. Choy Bing Wing
Read the full judgment text of HCMP 1313/2010 on BabelCite. This High Court CFI judgment was delivered on 7 January 2011.
1. This is an application by the Secretary for Justice (the Plaintiff) pursuant to leave granted on 21 st July 2010 under Order 52 rule 2(2) of the Rules of the High Court, for the committal of the Defendant Mr Choy Bing Wing (Mr Choy) for contempt of court. The grounds upon which committal is sought are that the Defendant made, during civil proceedings in or in connection with HCA No. 2458 of 2007 and HCB No. 12343 of 2009, certain serious scurrilous remarks and allegations against the Registra
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HCMP 1313/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO. 1313 OF 2010 ____________
____________ BETWEEN
____________ Before: Hon McMahon and Hon Macrae JJ in Court Dates of Hearing: 13 and 14 December 2010 Date of Judgment: 7 January 2011 _______________ J U D G M E N T _______________ McMahon and Macrae JJ: 1.This is an application by the Secretary for Justice (the Plaintiff) pursuant to leave granted on 21st July 2010 under Order 52 rule 2(2) of the Rules of the High Court, for the committal of the Defendant Mr Choy Bing Wing (Mr Choy) for contempt of court. The grounds upon which committal is sought are that the Defendant made, during civil proceedings in or in connection with HCA No. 2458 of 2007 and HCB No. 12343 of 2009, certain serious scurrilous remarks and allegations against the Registrar, Madam Queeny Au Yeung (the Registrar). 2.Those remarks and allegations will be particularized in due course. Before doing so, it is necessary to understand the background to this matter and to appreciate the context in which the remarks and allegations were made. Chronology 3.On 21st November 2007 Mr Choy, as Plaintiff in HCA No. 2458 of 2007, filed a Statement of Claim against 5 Defendants including the Director of Housing (the 4th Defendant) seeking, inter alia, an Order “for the surrender of files containing injurious falsehood of the professional career to ruin the Plaintiff”. By this action Mr Choy was seeking relief against the defendants for what he said was a loss of livelihood and reputation arising out of his claimed opposition to the construction of defective buildings in a housing development. On 19th December 2007, after the Defendants had taken out 3 summonses to strike out the Plaintiff’s claim, a Directions hearing took place before the Registrar. She directed that the summonses be set down for a 6-hour hearing on a date to be fixed. 4.On 20th December 2007, Mr Choy as Plaintiff in the action applied by letter to the Registrar for copies of the transcript and tape recording of the hearing of 19th December 2007. On 21st December 2007, the Registrar refused the application. 5.On 27th December 2007, Mr Choy wrote a letter to Ma CJHC (as he then was) asking him to order the Registrar to release the said transcript and tape recording. On the same day, he sent another letter in somewhat less restrained terms to Li CJ, Ma CJHC and the Registrar reiterating his request. He wrote:
6.The next day, 28th December 2007, Mr Choy applied by summons to discontinue the proceedings in HCA No. 2458 of 2007. The proceedings were duly discontinued and on 7th January 2008, the Registrar ordered Mr Choy as Plaintiff to pay the costs of the aborted action. 7.On 15th May 2009, the 4th Defendant in HCA No. 2458 of 2007 served a statutory demand for unpaid costs on Mr Choy. On the same day, Mr Choy wrote to the solicitors for the 4th Defendant complaining that:
The letter was copied to Li CJ, Ma CJHC and the Registrar herself. (This allegation forms Particular (b)(vii) of the Particulars of Contempt). 8.On 15th September 2009, the costs remaining unpaid, the 4th Defendant filed a Creditor’s Bankruptcy Petition against Mr Choy (HCB No. 12343 of 2009). The Petition was ordered to be heard on 11th November 2009. 9.On 16th September 2009, Mr Choy wrote to the Chief Executive alleging, inter alia, that the 4th Defendant in HCA 2458 of 2007 had:
The letter was copied to various people including Premier Wen Jiabao, Ma CJHC, 5 Hong Kong newspapers and the Registrar herself. (This allegation forms Particular (b)(vi) of the Particulars of Contempt). 10.Also on 16th September 2009, Mr Choy issued a cheque in favour of the ‘Director of Housing Authority’ for the outstanding costs but with a condition endorsed on the reverse that it was to be cashed “only when the two tilting tower 天頌閣 be sold to the public”. 11.On 8th October 2009, the solicitors for the 4th Defendant refused to accept the cheque and requested Mr Choy to make an unconditional settlement. 12.On the same day, Mr Choy sent a letter to the solicitors for the 4th Defendant alleging:
The letter was copied to the Chief Executive and to “Criminal Queenie (sic) Au-yeung – Registrar HC”. (This allegation forms Particular (b)(v) of the Particulars of Contempt). 13.On 15th October 2009, the solicitors for the 4th Defendant returned the cheque to Mr Choy. 14.On 16th October 2009, Mr Choy responded by sending a letter to the solicitors for the 4th Defendant with the heading in bold type as follows:
This letter was circulated to, amongst others, the Chief Executive, the Editors of 7 Hong Kong newspapers and the Registrar herself. However, it does not form any of the Particulars of Contempt, perhaps because Mr Choy did not reiterate the allegations in the body of the letter. 15.On the same day, however, in a letter to the Chief Executive, Mr Choy wrote:
The letter concluded with Mr Choy saying:
(This allegation forms Particular (b)(iv) of the Particulars of Contempt). The letter was copied to, amongst others, Ma CJHC, Chan PJ, the ICAC and “Criminal/Bitch Au-yeung”. 16.On 29th October 2009, in response to a further letter from the solicitors for the 4th Defendant, Mr Choy referred to the costs order “made by Bitch Queenie (sic) Au Yeung” and wrote:
The letter was copied to, amongst others, the Chief Executive, the Editors of 7 Hong Kong newspapers and the Registrar herself. (This allegation forms Particular (b)(iii) of the Particulars of Contempt). 17.On 3rd November 2009, Mr Choy filed his affirmation in HCB No. 12343 of 2009 which referred in paragraph 2 to his sending a cheque to the solicitors for the 4th Defendant “sufficient for the ransom for the blackmail as ordered by Bitch Queenie (sic) Au Yeung”. At the bottom of the document, after the affirmation duly signed before a Commissioner for Oaths, he wrote:
(These two references to the Registrar in the affirmation form the basis of Particular (b)(i) and (ii) of the Particulars of Contempt. It should be noted that all the letters which form the basis of the other Particulars, namely (b)(iii), (iv), (v), (vi) and (vii) were exhibited in 92 pages of exhibits attached to this affirmation.) 18.Although it does not form one of the Particulars of Contempt, a further letter from Mr Choy dated 5th November 2009 helps to explain a later exchange during the bankruptcy proceedings before Master Ko (now HH Judge Ko) on 11th November 2009. The letter was addressed to the Chief Executive, “Bitch Au Yeung” and another judge of the High Court to whom he attached a similarly offensive epithet. It was further copied to, amongst others, 7 Hong Kong newspapers as well as the New York Times. The heading of the letter in bold type reads:
19.On 11th November 2009, the bankruptcy petition was heard in open court by Master Ko. At the end of the proceedings, which need not concern us, the following exchange took place between the Court and Mr Choy:
Mr Choy then asked the Court why it had singled out his remarks about the Registrar and not mentioned the other Judge about whom he had made a similarly offensive remark (see para. 18 supra). The exchanges continued:
20.It is clear from that exchange that not only was Mr Choy afforded an opportunity to withdraw his imputation against the Registrar in the affirmation and refused to do so, but he stood by it as if it were a justifiable thing to say. He went on further somewhat defiantly to query why the Court should have questioned the epithet ascribed to the Registrar but not the one used in relation to another Judge of the High Court. (This matter forms the basis of Particular (c) of the Particulars of Contempt). 21.On the same day the Order of Master Ko was sealed ordering, inter alia, that “the scandalous remark made against the Registrar of the High Court in the affirmation of the Debtor filed on 3rd November 2009 be struck out”. 22.On 12th November 2009, Mr Choy wrote a letter to the Registrar, which was copied to Ma CJHC, purporting to justify the way he had referred to the Registrar. He wrote in the following terms:
23.It appears that around the end of November or beginning of December 2009, Mr Choy received copies of the materials he had earlier sought because there followed a further letter from him to the Registrar, which was copied to Master Ko, dated 2nd December 2009. It read:
We shall return to the purported justification contained in these two letters in due course. 24.It is against that factual background that this application is now made. The Particulars of Contempt 25.On 15th July 2010, the Plaintiff made ex parte application for leave to apply for the committal for contempt of the Defendant, which application was granted on 21st July 2010. The grounds upon which committal is sought before this Court are the same as those on which leave was sought. Leaving aside Particular (a), which is not strictly an allegation at all, the grounds upon which the application are made are articulated as follows:
26.On 21st October 2010, a Directions hearing was convened by this Court, for which notice was given to both parties. In the event, the Defendant, Mr Choy was not present. Accordingly, we adjourned the hearing for 1 week to 28th October 2010 to give the Defendant an opportunity to attend. The Defendant was again absent notwithstanding that notice of the hearing was properly served on him. At the adjourned hearing, we gave directions for the filing of affirmations and serving of written submissions by both parties for the hearing which was set down on 13th and 14th December. On 5th November 2010 in a letter to the Chief Executive, Ma CJ and Tang Ag CJHC, which was copied to us, the Defendant made clear that he would “not attend Court anymore from today by their intimidations”. True to his word, he did not appear at the hearing on either 13th or 14th December. However, it is clear he had notice of the hearing because he returned to the Court, by letter under his hand of 30th November 2010, both the Plaintiff’s letter advising him of the hearing date and the Plaintiff’s submissions. In the result, and as a preliminary issue, we were satisfied by evidence that the Defendant has had ample and proper notice of the hearing but has deliberately chosen not to be present. The Plaintiff’s case 27.Mr McCoy SC for the Plaintiff puts the case against the Defendant on two bases. Firstly, he submits that by the persistent use of serious and scurrilous invective against the Registrar, which by its very nature is calculated to lower her authority and bring her into contempt, Mr Choy’s actions have so scandalised the court as to amount to a contempt of court. Secondly, he argues that behind his conduct there is a deliberate scheme or pattern to Mr Choy’s actions, which goes further than mere vilification of a judge or court, and amounts to an intentional obstruction or interference with the due administration of justice or the lawful process of the court. If the Plaintiff could successfully demonstrate that Mr Choy had this underlying intention, this second basis would, of course, be a significantly more serious form of contempt. 28.In relation to this latter argument, Mr McCoy asserts with some force that Mr Choy’s conduct should be seen as part of a concerted plan to unsettle and intimidate judges and to remove or recuse anyone whom he does not think will give him what he wants from further dealing with his case. He has painstakingly taken us through the evidence of Mr Choy’s protracted correspondence and appearances before the courts in order to demonstrate a pattern of behaviour, which, he submits, is symptomatic of a determined campaign to interfere with the due administration of justice for his own ends. However, compelling though the argument is, we consider that it ultimately fails the standard of proof applicable to this area of the law. We have asked ourselves the simple question whether we can be sure that this was Mr Choy’s intention but we find we cannot be sure of such a specific intention on the part of the contemnor. We do not, therefore, need to address the second of Mr McCoy’s submissions further and are only concerned with the first of his submissions alleging that Mr Choy has committed a contempt of court by scandalising the court. The Law of Contempt of Court 29.The jurisdiction of contempt of court is of ancient origin. As long ago as 1900, Lord Russell CJ was able to describe it, in R v Gray (1900) 2 QB 36 at 40, as “not a new-fangled jurisdiction; it is a jurisdiction as old as the common law itself, of which it forms a part.” The two categories of contempt, which Mr McCoy’s submissions invoke, were themselves articulated in Gray, at 40:
In dealing with the particular contempt in issue, which was made against a High Court Judge, the Court said:
30.The Lord Chief Justice’s dual classification for contempt of court has been accepted and applied by the Privy Council in Ambard v Attorney-General for Trinidad and Tobago (1936) A.C. 322, the New Zealand Court of Appeal in Solicitor-General v Radio Avon Ltd and Another (1978) 1 NZLR 225, and the Hong Kong Court of Appeal in Wong Yeung Ng v Secretary for Justice (1999) 2 HKLRD 293. 31.The rationale for the first limb of the offence at common law has been explained in various ways at various times. Over 200 years ago, in R v White and Another (1808) 1 Camp. 360, Grose J held that the writers of an article were guilty if the published material “contained no reasoning or discussion, but only declamation and invective, and were written not with a view to elucidate the truth, but to injure the characters of individuals, and to bring into hatred and contempt the administration of justice…”; whilst in Re S.B. Sarbadhicary (1907) 95 LT 894 at 895, it was said to be “essential to the proper administration of justice that unwarranted attacks should not be made with impunity upon judges in their public capacity”. In Radio Avon Ltd the Court considered at 230: “The justification for this branch of the law of contempt is that it is contrary to the public interest that public confidence in the administration of justice should be undermined”, reasoning which was adopted and amplified by Chan CJHC and Keith J (as they then were) in Secretary for Justice v The Oriental Press Group Ltd and Others (1998) 2 HKLRD 123 at 148:
32.Mortimer V-P (as he then was) in Wong Yeung Ng at 313 endorsed such reasoning, particularly in the context of a small jurisdiction such as Hong Kong, and considered that the confidence of ordinary citizens or litigants could be affected if sustained attacks upon the courts or judges were allowed to go unchecked. He adopted a further refinement articulated in Arlidge, Eady & Smith on Contempt (2nd Ed.) at para. 16-8 that:
33.A similar sentiment was expressed in the Canadian Queen’s Bench decision of Re Borowski (1971) 19 D.L.R. (3d) 537 at 547:
34.It was said by the Privy Council in Ambard at 335, in a passage often referred to in subsequent authority:
We accept the right to criticise, sometimes even robustly, the decisions of judges and we are also mindful of the later qualification to the proscription on attributing improper motives made by the Privy Council in Ahnee v DPP (1999) 2 A.C. 294 at 306:
35.The Court in Radio Avon Ltd at 230 voiced the same reservation while accepting the generality of the statement in Ambard. The Court adopted the view expressed in The Law of Contempt (1973) by Borrie & Lowe at p. 383-384 that provided any criticism is free from the taint of scurrilous abuse and can be either justified or be properly considered as fair comment, it ought not to amount to contempt. 36.It is axiomatic, and has been clear at least since Gray, that the standard of proof applicable to applications such as this is the criminal standard, namely proof beyond reasonable doubt. As Lord Russell CJ put it in Gray at 41:
37.The elements of the offence requiring proof have recently been neatly stated by the Privy Council in Ahnee and may be taken from the head note:
We think, as did the Court in The Oriental Press Group Ltd and others at 155-156, that the term “calculated” has the meaning ascribed to it by Donovan LJ (as he then was) in Attorney-General v Butterworth (1963) 1 QB 696 at 725, namely:
38.It can be seen from this brief excursion through precedent that a contempt of court can take a number of forms. We, having rejected Mr McCoy’s assertions of a deliberately orchestrated campaign of interference with the administration of justice, are left effectively with one remaining form; that of scandalising the court by invective and vilification directed against a particular judicial officer in her public capacity. That such personal, abusive and insulting references may amount to a contempt of court is, in our view, beyond argument. Such references detract from the dignity of the judicial office and of its authority, both of which the community is entitled to have upheld as necessary components of the administration of justice. Application 39.Applying the law as we apprehend it to be to the facts of this case, we are in no doubt whatsoever that Mr Choy, by his sustained use of insulting and abusive language towards the Registrar, which he refused to withdraw when afforded the opportunity to do so in open court, as well as scurrilous allegations against her, all of which were made or incorporated in court documents, has in fact undermined the authority and dignity of the Registrar so as to amount to a contemptuous scandalising of her Court. 40.In as much as Mr Choy has purported to suggest that the ultimate release of the materials he had sought from the Court justified the use of such scurrilous invective, without which the Court would not have yielded to his demands, we utterly reject the validity of any such justification for the insulting and abusive language he deployed. If that were his purpose, and if he had indeed succeeded by such methods, it would be a particularly grave matter because it could not but seriously undermine the confidence of ordinary people and litigants in the due administration of justice by impartial judicial officers unaffected and uninfluenced by personal attacks upon them. Fortunately for Mr Choy, we do not think the Court was so timid or so easily browbeaten by such attacks upon it and we shall not hold what he considers to be the justification for his actions against him. On the contrary, it seems to us from the evidence that the Registrar behaved with commendable propriety, dignity and self-restraint. Suffice it to say, and making all such allowances for a litigant in person faced with a decision he does not like, we find no justification whatsoever for his actions. Decision 41.We find beyond reasonable doubt that all of the Particulars of Contempt are made out and that Mr Choy has thereby so scandalised the court by his actions as to be in contempt of court. Accordingly, a warrant will be issued for the Defendant to be brought before this Court to answer for his contempt.
Mr Gerald McCoy, SC, Counsel on fiat, for the Department of Justice, for the Plaintiff The Defendant, in person, absent | |||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCMP 1313/2010