Secretary for Justice v. Choy Bing Wing

HCMP1313/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1313 OF 2010

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BETWEEN

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Before : Hon McMahon and Macrae JJ in Court

Date of Hearing : 17 January 2011 and 11 February 2011

Date of Judgment on Penalty : 11 February 2011

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JUDGMENT ON PENALTY

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Hon McMahon and Macrae JJ :

1.By our judgment of 7 January last we found the defendant, Mr Choy, to have been in contempt of court in the terms of the particulars set out in the plaintiff’s statement made pursuant to Order 52, rule 2(2) of the Rules of the High Court.

2.A warrant for his apprehension and committal was issued on the same day and, that having been executed, he was brought before us on 17 January 2011 for the purpose of our considering what, if any, penalty to impose upon him.

3.On that day Mr Choy, who has at all times insisted on representing himself, made various submissions.  At the end of those submissions we were of the view, having considered the nature of Mr Choy’s previous contempt together with the facts of the present case and the correspondence written by Mr Choy ancillary to the present particulars of contempt, that it was appropriate for us to have before us prior to the imposition of any penalty a psychologist’s report.  It was our concern that Mr Choy may have had a behavioural or personality disorder. Accordingly we adjourned the matter to today’s date for the purposes of that report which is now before us under the hand of Mr Charles Pau, Clinical Psychologist of the Correctional Services Department. 

4.From that report it is quite plain that Mr Choy suffers from no such disorder.  He is reported to be simply a determined individual who tends to see matters in “black and white” terms and who, when a court does not accede to that which he regards himself as entitled, reacts with anger.

5.We therefore see no benefit to Mr Choy in the contents of the report provided to us and turn to other matters raised before us regarding penalty.

6.As a preliminary matter Mr Choy challenged the validity of the warrant for committal.  The purpose of the warrant is to allow the offender to be brought before the court and to allow him, if necessary, to be taken into custody.  Mr Choy argues that it was ultra vires our power to issue the warrant pursuant to Order 52, rule 1, and for that reason he should simply be released.  Mr Choy’s argument was based upon the fact that the terms of the warrant issued by us directing it be executed by the relevant parties differed from the form of warrant contained in Appendix A to the Rules of the High Court relating to proceedings such as the present. 

7.It is true that the form of warrant in Appendix A is directed only to “the Chief Bailiff and his assistants and the Commissioner of Correctional Services” whereas that issued by us in the present proceedings was directed, in addition to those parties, to the Commissioner of Police and his officers.  That was for good reason.  In this case (as in other cases on occasion) there was, from Mr Choy’s past behaviour, reason to allow for the eventuality that Mr Choy might well have resisted the attempt by the Chief Bailiff to bring him before this court expeditiously and to therefore direct the warrant to, additionally, the Commissioner of Police.

8.That was by no means ultra vires this court’s power.  The form of a warrant in Appendix A may be varied depending upon the circumstances of a particular case.  By Order 1, rule 9(1) of the Rules of the High Court :

“The forms in the Appendices shall be used where applicable with such variations as the circumstances of the particular case require.”

Support for that rule is provided by section 37(1) of the Interpretation and General Clauses Ordinance which provides :

“ Where any form is prescribed by or under any Ordinance, deviations therefrom, not affecting the substance of such form, shall not invalidate it.”

9.In our view the addition of the Commissioner of Police (and his officers) to those directed to execute the warrant did not derogate from the essential nature and function of the warrant which, we emphasise, preserved the requirement that Mr Choy be informed by the terms of the warrant as to why he was arrested.

10.The warrant therefore was intra vires and was effective to authorise the arrest of Mr Choy and have him lawfully brought before us : see also Secretary for Justice v Choy Bing Wing [2005] 4 HKC 416 at paras 17 to 25 where, on the occasion Mr Choy was previously dealt with for contempt, the same argument was made by him, also unsuccessfully, regarding the warrant used on that occasion which was in the same terms.

11.Mr Choy has also been given the opportunity to address us generally on the question of penalty.  He has in that context been given the opportunity to explain his actions and, if he so wished, to attempt to purge his contempt.

12.So far as the latter matter is concerned, Mr Choy towards the conclusion of the proceedings on 17 January 2011 stated that he was prepared to apologise for his contempt if that brought about his release from custody.  That remained more or less his position during the remaining part of those proceedings, and in our view was a conditional apology motivated by little, if any, genuine remorse.  Our view in that regard was not altered by his expression of remorse today.

13.In any event, in the context of the present particulars of contempt, taken together with Mr Choy’s previous contempt in this court, it does not provide any substantive basis for us to deal with him more leniently.  We are satisfied that his late and unconvincing apology was little more than a last minute and opportunistic attempt to avoid the consequences of his contempt.

14.Few other matters were relied upon by Mr Choy as mitigating any penalty to be imposed by us.  He did appear to argue however that he was entitled to the order he sought from the Registrar (i.e. the provision of certain transcripts and other documents) and that she was wrong to refuse him.  That cannot be mitigation.  Unsuccessful litigants cannot rely on their lack of success as any form or degree of justification or excuse for behaviour such as that in which Mr Choy indulged.

15.We bear in mind that Mr Choy has, on the occasions of the present matters, expressed his vituperative and insulting statements in a series of letters produced in documents filed in court proceedings.  They formed a considered and deliberate series of contempts which were quite different in nature from a momentary loss of control resulting in an emotional outburst in the face of the court.  The letters were, on their face, widely published by Mr Choy, having been copied to institutions and politicians internationally as well as here in Hong Kong.  We are satisfied that whatever the motive of Mr Choy in committing his contemptuous actions in the present case, those actions involved contempts which were both calculated and serious.  

16.We appreciate that Mr Choy is an engineer by occupation and is a man of some intelligence, he apparently having been successful in both his profession and in other occupations arising from it.  He has sat, for one purpose or another, on the boards of various corporate entities in Hong Kong.  Nevertheless, however unpleasant it may be, given that this is the second occasion in recent years that Mr Choy has been committed for a serious contempt of court, in our view the appropriate penalty is one of imprisonment.

17.We note that on 7 December 2009, on the first occasion Mr Choy was dealt with for contempt of court, he was ordered to serve a term of six months’ imprisonment.  The present series of contempts commenced approximately three years after the expiration of that term of imprisonment.  We bear in mind the obiter comments by Tang VP in Oriental Daily Publisher Ltd v Ma Chiu Sing [2009] 2 HKLRD 558 at paras 32 to 35 as to the length of sentence, but it appears the previous sentence was not a sufficient deterrent.  Importantly on this occasion, unlike that of the previous committal of Mr Choy, his motive has not been found by us to be an “attempt… to have the court constituted as he wished it”.  Our judgment on this occasion went no further than to find, that for whatever reason, Mr Choy had deliberately scandalized the court by his sustained and inexcusable vilification of a particular judicial officer.  That is in any event, for the reasons we have set out in our judgment, a very serious matter and is a course of conduct which, in the interests of the community, requires condign punishment.

18.In our view, given this is Mr Choy’s second committal for contempt and given the sustained and scurrilous nature of his actions, but bearing in mind the circumstances of the contempt and the costs to which he has exposed himself, the appropriate order is that Mr Choy serve a period of four months’ imprisonment.  That period is to be calculated from the date of his arrest.  We order accordingly.

19.We turn to the question of costs.  They will follow the event and, additionally, in our view should be on an indemnity basis.  We accept that to be the normal order in proceedings such as these (see : Secretary for Justice v Yuen Oi Yee, Lisa, HCMP2390/2008, 27 October 2010, at para. 36; and the comments of Rogers VP in Lau Yee Ching v Wong Tak Kwong, CACV385/2005, 3 March 2006, at paras 5 and 6), though of course the court retains its discretion to make such order as it finds appropriate.  Additionally in these proceedings Mr Choy has been obstructive and confrontational in the course of service of documents and in his deliberate absence from proceedings, all of which resulted in delay.

20.We therefore order costs to be paid by Mr Choy to the plaintiff on an indemnity basis.

Mr Gerald McCoy, SC, Counsel on fiat, instructed by Department of Justice, for the Plaintiff

The Defendant, in person, present

Please refer to HCMP2665/2012 for the relevant appeal(s) to the Court of Appeal.