Choy Bing Wing v Chief Executive Of Hksar, China And Others

HCA 2351/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2351 OF 2005

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BETWEEN

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Before: Hon Lam J in Chambers

Date of Hearing: 13 December 2005

Date of Decision (Striking Out): 13 December 2005

Date of Reasons for Decision (Striking Out): 23 December 2005

Date of Decision (RPO): 23 December 2005

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REASONS FOR DECISION ON STRIKING OUT AND DECISION ON RPO

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The finding of contempt and the new action

1. On 25 October 2005, Choy Bing Wing [“Choy”] was committed by the court for contempt in HCMP 4694 of 2003. The reasons for the decision were fully set out in the judgment of Hartmann and Suffiad JJ of 25 October 2005.

2. The court adjourned sentencing Choy because he chose to absent himself from the hearing. It was directed that a warrant of arrest be issued to take Choy into custody and have him brought before the court to answer for his contempt. Choy was apprehended on 5 December 2005. On 7 December 2005, Hartmann and Suffiad JJ sentenced him to six months’ imprisonment.

3. On 23 November 2005, Choy issued the writ in the present action seeking redress for what he alleged to be unlawful acts stemming from the contempt proceedings. In the Writ, Choy characterized the contempt proceedings as “crimes of conspiracy, judicial cheatings and violation of human rights committed by the executive and judicial arms of HKSAR Government” against him.

4. Choy alleged Hartmann J to have “deliberately committed unlawful judicial acts in usurping jurisdiction by conspiring with the Secretary for Justice in engineering the plot to trap [Choy] to jail”. He alleged Suffiad J to have “committed judicial frauds in HCA 125 of 2005” and “fabricated story in his ruling in HCA 125 of 2005 without any denials of being a criminal judge himself”. He accused Suffiad J to have committed the same crime as Hartmann J as well.

5. The Secretary for Justice was alleged to have engineered and carried out a plot to put Choy to jail and conspired with Hartmann and Suffiad JJ in violation of human rights and “deception as to the law” in the contempt proceedings.

6. The Chief Justice was sued for his alleged cover up of the crimes committed by Hartmann and Suffiad JJ and conniving and condoning such crimes.

7. The Chief Executive was sued because of his alleged failure to uproot the said crimes.

The striking out

8. On 29 November 2005, this court directed the case be listed on 5 December 2005 for Choy to show cause why the action should not be struck out. The Defendants were not required to attend although they were given the liberty to do so if they so wish. Ms Fung appeared for the Defendants on 5 and 13 December 2005.

9. The Writ contained very serious allegations which should not be advanced without cogent evidence supporting the same. It is well established that the court will not allow allegations of such nature to be made without proper evidence and if they were made irresponsibly, it will exercise its inherent jurisdiction to strike out the same (see C S Low Investment v Freshfields [1991] 1 HKLR 12 at p.23A-D; Tam Chi Kok Garbiel v Fok Eugina HCA 1859 of 1992, 12 June 2003; “The Gagich” HCAJ 361 of 1995, 7 Jan 1997; 林哲民經營日昌電業公司及特佳機器廠有限公司CACV 122 of 2004, 29 Nov 2005, para. 25).

10. No evidence has been filed in this case. However, this court can refer to judgments delivered in other cases in which Choy was a party in considering whether to strike out this action because the court can take judicial notice of these judgments and on the face of it, the allegations contained in the Statement of Claim are collateral attacks on previous judicial decisions. For the purpose of the striking out application, I only need to refer to the following judgments concerning Choy:

(a) The judgments of Hartmann and Suffiad JJ of 25 October 2005, 7 December 2005, 12 December 2005 in HCMP 4694 of 2003;

(b) The judgment of Ma CJHC of 14 January 2004 in HCMP 4694 of 2003;

(c) The judgment of the Court of Appeal of 3 December 2004 in CACV 11 of 2004; and

(d) The judgment of Suffiad J of 10 August 2005 in HCA 125 of 2005;

Choy was a party to all those proceedings and the judgments are binding on him.

11. It is well established that collateral attack on judicial decision of competent jurisdiction is an abuse of process and therefore liable to be struck out. The principle applies to attack on decisions in both civil and criminal matters, see Hunter v Chief Constable of West Midlands Police [1982] AC 529; Somasundaram v M Julius Melchior & Co [1988] 1 WLR 1394. The proper course for an aggrieved party regarding a judicial decision against him is to appeal against that decision instead of starting a fresh action suing the judges.

12. The claims of Choy in this action in substance seek to re-litigate HCMP 4604 of 2003 and HCA 125 of 2005. As explained below, his contentions of conspiracy and fraud have no proper basis.

13. Choy did not have any proper evidence to support the serious allegations advanced by him in the present action. The finding of contempt in HCMP 4694 of 2003 on the application of the Secretary for Justice cannot by itself be evidence of “conspiracy” between Hartmann and Suffiad JJ on the one part and the Secretary for Justice on the other part.

14. At the hearing of 13 December 2005, this court enquired with Choy about the basis for his allegation of conspiracy. His answer is bizarre. He said because he had written letters to the Defendants complaining about another judge and they did not reply to him, he was entitled to draw whatever inference he deemed fit. He alleged the Defendants conspired together to put him in jail in order to silence him. He also accused the Defendants of trying to shut him out in respect of certain stock frauds. No person in his right mind would accept such a fanciful theory as evidence to support the very serious allegations that Choy sought to put forward.

15. Choy obviously did not agree with the decision of Hartmann and Suffiad JJ in HCMP 4694 of 2003 and that of Suffiad J in HCA 125 of 2005. But that does not justify his allegations that the judges committed “judicial cheating”, “judicial fraud” or “deception of the law”. Choy was well aware of the difference between alleging a judge reached the wrong conclusion and alleging a judge of fraud and cheatings. He had been reminded of this elementary proposition repeatedly, see for example the judgment of Cheung J in Ng Yat Chi v China Resources (Holdings) Co Ltd HCA 424 of 2005, 4 July 2005 Paras.10 to 12; the judgment of Hartmann and Suffiad JJ in HCMP4694 of 2003, 25 October 2005, para.68.

16. In the Statement of Claim endorsed in the Writ in the present action, Choy set out the basis of his allegation that the contempt proceedings were unlawful in paragraphs 7 to 9. He contended that given Rogers VP did not cite him for contempt, the Secretary for Justice could not move for contempt in the absence of any breach of court order. He said the leave for committal proceedings to be commenced was granted by Hartmann J without jurisdiction because “the leave contravened O.52 1(2)(a)(ii) of High Court Civil Practice and Section 24-23(2)(a)(ii) of Archbold, Criminal Pleading, Evidence and Practice”.

17. There is no rule 1(2)(a)(ii) in Order 52 of our Rules of the High Court. In contrast, there was such a rule in the English Rules of the Supreme Court prior to the introduction of the Civil Procedure Rules. That rule reads:

“Where contempt of court is committed in connection with criminal proceedings, except where the contempt is committed in the face of the court or consists of disobedience to an order of the court or a breach of an undertaking to the court, then, subject to paragraph (4), an order of committal may be made only by a Divisional Court of the Queen’s Bench Division. This paragraph shall not apply in relation to contempt of the Court of Appeal.”

18. We do not have a similar rule in Hong Kong. In any event, the contempt of Choy was committed in the face of the court in a civil appeal before the Court of Appeal.

19. In the current edition (viz. 2005) of Archbold, Criminal Pleading, Evidence and Practice and the Hong Kong Archbold, there is no Section 24-23(2)(a)(ii). Insofar as Choy is referring to an old edition commenting on the English rule, it has no relevance in the present context.

20. As regards the fact that Rogers VP did not take action himself, the point has been dealt with by Ma CJHC in disposing of Choy’s application to strike out the contempt proceedings, see the judgment of Ma CJHC in HCMP 4694 of 2003, 14 January 2004, Para.8(2). Choy had appealed unsuccessfully against Ma CJHC’s decision in CACV 11 of 2004. It is not open to Choy to re-litigate this in the context of the present action.

21. Choy’s allegation as to the unlawfulness of the contempt proceedings is completely misconceived.

22. At the hearing on 13 December 2005, Choy sought to attack the validity of the warrant of his arrest. The point has been canvassed in the judgment of Hartmann and Suffiad JJ of 12 December 2005. For reasons already given above, this court does...