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B CACV 275/2015 B
G BETWEEN G
H
CHOY BING WING Plaintiff H
and
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HONG KONG INSTITUTE OF ENGINEERS Defendant
J J
N
JUDGMENT N
P P
Introduction
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1. This is the appeal of the plaintiff, Choy Bing Wing (“Mr Choy”),
R against the decision of Au-Yeung J on 27 November 2015. By that R
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decision, the judge ordered Mr Choy’s claim against the Hong Kong S
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Institution of Engineers (“HKIE”) in HCA 309/2015 be struck out and
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the action be dismissed on the grounds that it discloses no reasonable
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Wrongly stated by the plaintiff as “Hong Kong Institute of Engineers” in the writ he issued.
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the court. Pursuant to Order 14A of the Rules of the High Court, the
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judge also determined the following question (“the Question”) raised by
D HKIE in the affirmative: D
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2. Article 13(4)(d) of the Constitution of HKIE provides that if a member
suspended for three years with effect from 18 January 2013. Mr Choy
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then served on HKIE a notice of appeal against the suspension order on
S 21 January 2013. That appeal is pending so the suspension order is not S
yet in force.
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against HKIE, seeking a declaration that the suspension order is null and
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void.
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HCMP 4694/2003
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8. The court heard the notice of motion to commit for contempt in Mr
M Choy’s absence, having drawn the only reasonable inference that he had M
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tirade of abuse which he heaped upon the Vice President during the S
course of that application were examples of the most serious scandalising
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2
Three judgments were given. The 1st judgment, on 25 October 2005, dealt with the committal for
U contempt. The 2nd judgment, on 12 December 2005, addressed the warrant for committal. The 3rd was a U
ruling as to penalty given on 7 December 2005.
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was to remove the Vice President from the hearing of the appeal. The
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court was satisfied beyond reasonable doubt that the abuse and invective
D constituted a serious contempt of court, one which had the real risk and D
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HCMP 1313/2010
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10.The Secretary for Justice again brought proceedings to commit Mr
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Choy for contempt, in relation to serious scurrilous remarks and
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afforded the opportunity to do so in open court, as well as the scurrilous R
allegations against her in court documents, Mr Choy had undermined the
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authority and dignity of the Registrar so as to amount to a contemptuous
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Au-Yeung J had raised with the parties at the outset of the hearing on 18 November 2015 whether
they objected to her hearing HKIE’s summons and Mr Choy’s summons in this action as
U HCMP 1313/2010 was in relation to contempt committed against her court. Neither party sought her U
recusal.
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12.The judge first analysed the Question as it forms the core dispute.
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Having considered the authorities cited, including Cobra Golf Inc & Anr
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v Rata & Ors [1998] Ch 109, Garvin v Domus Publishing Ltd [1989] Ch
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335 at 345, Balogh v St Albans Crown Court [1975] 1 QB 73, Chiu Luen H
Public Light Bus Co Ltd v Persons Unlawfully Occupying or Remaining
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on Public Highway & Ors [2014] 6 HKC 298 at §§123 and 124 and
that the contempt of which he stood accused was a criminal contempt, but
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held it was open to the Secretary for Justice to proceed under Order 52
P instead of by way of a criminal indictment4. P
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doubt that Mr Choy had been convicted twice of a criminal offence of R
contempt of court. The absence of the word “sentence” in the judgments
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in HCMP 4694/2003 and HCMP 1313/2010 is irrelevant, as it is
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undeniable that Mr Choy had been sentenced to imprisonment twice and T
he had served those sentences. The reference to a person “being
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[2005] 4 HKC 416 at 440I to 442D, §§9 to 16
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15.Mr Choy filed a notice of appeal against this decision on 18 December
J 2015, seeking an order that the judge’s order be set aside in its entirety J
and his appeal be allowed, and that his claim against HKIE be restored
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and allowed to proceed to trial.
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16.On 5 May 2016, Kwan JA granted permission to HKIE to be excused
M from attendance in the appeal, with leave to serve a skeleton submission 7 M
P 17.We will first deal with two matters brought up by Mr Choy before we P
R 18.First, he has applied earlier for the tape recording of the hearing before R
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B him had been “criminally edited” for the appeal with a “manipulated B
H 19.Mr Choy claimed the law read out by him but did not appear in the H
transcript is6:
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with the relevant page 136 would appear to be Cobra Golf Inc. At 136C,
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5
Mr Choy’s letter to Ma CJ on 15 February 2016, copied to all the judges of the High Court and the
R Court of Final Appeal, the members of the Legislative Council, and the Inns of Court in England R
6
See Mr Choy’s letter to Ma CJ, Lam VP, Au-Yeung J and the Registrar of Civil Appeals dated
11 February 2016, copied to those as stated above, various other judicial officers and various
S newspapers in Hong Kong S
7
The correction citation is [1936] AC 322
8
Reported as Re Kennedy (No 3) [2009] 1 HKC 57
9
T Reported as Re Kennedy (No 2) [2008] 5 HKC 350 T
10
Secretary for Justice v Choy Bing Wing, 1 March 2005, unreported (Stuart-Moore VP, Yeung JA and
Burrell J), in which the Court of Appeal refused leave to Mr Choy to appeal to the Court of Final
U Appeal against an order dismissing his application to strike out the contempt proceedings in U
HCMP 4694/2003.
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F F
21.That was the passage Mr Choy was reading out to Au-Yeung J and as
G part of his words was indistinct, as noted in the transcript, it was not G
transcribed accurately and completely. But the judge fully understood his
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submission, and referred to it in her decision at §22, giving the page
I numbers of the relevant cases he mentioned. I
simply far- fetched. He was making a submission on the law. Even if the
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transcript did not give a reasonably complete and intelligible version of
L his oral submission before the judge (which we do not think is the case), L
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Mr Choy would not be prohibited from making his submission on the law M
when he came to argue his appeal, or to rely on the additional authorities
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he mentioned in his subsequent letters to the court. Indeed, that was the
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reply in the letter of the clerk of Lam VP to him dated 26 April 2016. O
P 23.In the exercise of our discretion, we refuse his application to play the P
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HCMP 1313/2010, the senior counsel who appeared for the Secretary for
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Justice in those proceedings, and the police officers involved in his arrest
J in the execution of the warrants and had attempted to obtain finger and J
palm prints from him while in custody. Mr Choy asserted in his letter
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that the 11 persons should be called as witnesses to give evidence in this
L appeal, and as the forms are “mandatory” and “prescribed for criminal L
appeals against the criminal offence affirmed”, the Court of Appeal has
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no discretionary power not to call the witnesses.
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that Au-Yeung J failed to inquire into the facts and he shall make his
U 11
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See the Reasons for Decision on 15 June 2016
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B closing submission of the appeal against the criminal offence ruled by the B
judge after his cross-examination of all the witnesses listed in his new
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bundle. In his letter to this court dated 12 September 2016, he asserted
D that the hearing of the appeal may not proceed as his right to cross- D
him on all his challenges12. There was no appeal on those rulings and it is
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completely out of order to seek to raise them in the present appeal
N without leave and well out of time. Mr Choy is not allowed to re-open N
P This appeal P
Q 29.At the start of this hearing, Mr Choy handed to the court a bundle of Q
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papers13 and left the court without a word. We decided to deal with his R
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12
[2005] 4 HKC 416 at 440 to 444, §§9 to 25; HCMP 1313/2010, judgment on penalty on 11 February
2011, §§6 to 10
13
T The bundle of papers are some of the letters he wrote to the court in September 2016, complaining T
about the dismissal of his appeal by the Court of Appeal (Cheung JA and Kwan JA) in CACV 119/2016
and to the Commissioner of Police concerning his report of fabrication of tapes/transcript by the
U judiciary in respect of the hearing before Au-Yeung J. The letters were circulated to a wide group of U
judges, political figures, the Inns of Court, and the media in Hong Kong, the PRC, and the UK.
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orders committing him for contempt for want of jurisdiction and the
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warrants issued by the courts. These matters are outside the proper scope
F of this appeal and it is unnecessary to say anything further. F
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31.The grounds of appeal stated in the Notice of Appeal are in very
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general terms and read as follows: H
33.In ground 2, Mr Choy complained that the judge failed to have proper
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regard to the matters settled by the Court of Appeal. He has not
S particularised what those matters are. Among the cases cited in his list of S
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B CJHC, Yeung VP and Lam VP). The judgment under appeal was the B
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34.Lam VP held that the appeals are properly characterised as civil
H appeals. He adopted the approach in Re Kennedy (No 3), a case relied on H
the motion was to commit for criminal contempt, as the underlying matter
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concerned winding-up proceedings, it was a civil cause or matter.
N Following that approach Lam VP had regard to the underlying matter N
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above” (emphasis supplied), see §§26, 27, 33 and 34. S
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I
16. The dual character of criminal contempt was explained by I
Buss JA in Allbeury v Corruption and Crime Commission
(2012) 42 WAR 425 at [182]:
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“Although the substantive character of criminal
contempt proceedings is essentially criminal, the
K procedural character of the proceedings is civil rather K
than criminal.” ”
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36.We are here concerned with the substantive character of the two
M instances of criminal contempt, rather than the procedural character. The M
acts complained of that formed the basis of the criminal contempt in both
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instances amounted to scandalising the court with the real risk and
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tendency to interfere with the due administration of justice. The
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proceedings to commit Mr Choy for contempt were brought by the P
Secretary for Justice acting as the guardian of the public interest in
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ensuring the protection of the due administration of justice.
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37.In Cobra Golf Inc at 137C to F, Rimer J expressed “no doubt that
S contempts which are properly classified as ‘criminal contempts’ are S
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N 38.To the above, I would add this passage from Arlidge, Eady & Smith on N
U 14
U
This sentence appears in the 4th edition of the work (2010) at para 6.74
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G
situation. G
H 40.In ground 3, Mr Choy alleged that the judge failed to uphold Article H
104 of the Basic Law in relation to the violations under Articles 19 and 87
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of the Basic Law. He failed to particularize or make good this allegation.
J He has made similar complaints of violations of the Basic Law which the J
L 41.We dismiss his appeal as none of the grounds of appeal are of merit. L
As costs should follow the event, we make an order nisi that Mr Choy
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should pay the costs of HKIE in this appeal.
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42.HKIE has submitted a statement of costs for summary assessment.
O Since Au-Yeung J has assessed the costs awarded on a summary basis, we O
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unnecessary duplication of work. R
S 43.Any party who seeks to vary the costs order nisi or the gross sum S
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B B
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D D
H
Wilkinson & Grist, for the Defendant (Respondent), attendance excused H
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