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CACV 226/2015
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 226 OF 2015
(ON APPEAL FROM LBTC NO 2189 of 2015)
_______________________
IN RE: MAHESH J ROY
INTERVENER: SECRETARY FOR JUSTICE
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| Before: Hon Lam VP, Kwan and McWalters JJA in Court |
| Date of Hearing: 22 September 2017 |
| Date of Judgment: 22 September 2017 |
| Date of Reasons for Judgment and Decision on Costs: 10 November 2017 |
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REASONS FOR JUDGMENT
AND DECISION ON COSTS
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Hon Lam VP (giving the Reasons for Judgment and Decision on Costs of the Court):
1. A presiding officer in the Labour Tribunal has the power under Section 42 of the Labour Tribunal Ordinance Cap 25 [“LTO”] to summarily punish a person who in a hearing before the tribunal (a) uses a threatening or insulting expression to or concerning or in the presence of the presiding officer; or (b) behaves in an insulting manner or wilfully interrupts the proceedings.
2. Subject to limitations set out in the statute, this statutory power is equivalent to the summary power of a court to punish contempt in the face of the court. The power is a draconian one but, as with other courts of record[1], it is imperative that the Tribunal must have such a power in order to protect the integrity of proceedings in court and to ensure orderly conduct in the proceedings. As Mr McCoy SC (appearing together with Mr S Marwah for the appellant in this appeal) fairly accepted, the existence of such a power is a necessary incidence of the authority of the court. The power, as counsel observed in the course of proceedings, is not for the benefit of the judicial officer. Instead it is a power which emanates from the public interest in the maintenance of the dignity and solemnity of court proceedings which is essential for the rule of law.
3. At the same time, it is a power to be exercised cautiously. In Balogh v St Albans Crown Court [1975] 1 QB 73, Stephenson LJ had this to say regarding the summary power under the common law:
“ The power of a superior court to commit … a contemnor to prison without charge or trial is very ancient, very necessary, but very unusual, if not indeed unique. It is as old as the courts themselves and it is necessary for the performance of their function of administering justice, whether they exercise criminal or civil jurisdiction. (p.88A)
The power … is both salutary and dangerous: salutary because it gives those who administer justice the protection necessary to secure justice for the public, dangerous because it deprives a citizen of the protection of the safeguards considered generally necessary to secure justice for him. …it is a power to be used reluctantly but fearlessly when, and only when, it is necessary to prevent justice being obstructed or undermined … (p.91A to B)”
Facts and background
4. This appeal is about the exercise of such a summary power under Section 42. The appellant was summarily punished by a presiding officer in the course of proceedings in the Labour Tribunal. The presiding officer found him guilty of insulting behaviour and disturbing proceedings in front of her. Having afforded him opportunities to arrange legal representation, and having adjourned the matter and later heard from counsel on his behalf, the presiding officer imposed a fine of $5,000.
5. The appellant appealed and legal aid was granted to him. As mentioned, he was represented by Mr McCoy SC and Mr Marwah before us. As explained in the earlier judgment of this Court in this appeal, the Secretary for Justice was joined as intervenor, see Re Mahesh J Roy [2017] 2 HKLRD 935. Mr Wong SC and Ms Cheng appeared on behalf of the Secretary for Justice. Mr Wong’s team was mindful of the role of the Secretary for Justice in an appeal of this nature and acted in a completely impartial manner. Counsel fairly accepted that in light of some procedural defects in the proceedings (which we shall allude to below) the conviction of the appellant should be quashed. We are very grateful for the assistance of counsel in this appeal.
6. After hearing counsel, we allowed the appeal. We now give reasons for our judgment.
7. The relevant facts can be summarized as follows. On 19 August 2015, the appellant accompanied his girlfriend to attend proceedings in the Labour Tribunal. His friend was a claimant in the proceedings. They were present in the Tribunal when the Tribunal dealt with another case before his friend’s case was called upon. In the course of the other case, the appellant spoke to his friend (both of them were then in the public gallery) and the Presiding Officer found the conversations disturbing the proceedings. She therefore admonished the appellant and the appellant acted in a rather belligerent manner in response to such admonition. He was able to respond to the Presiding Officer in English and made no suggestion that he had difficulties in understanding English. The Presiding Officer did not take the matter further at that stage.
8. After finishing the proceedings in the previous case, the Presiding Officer called on the case involving the friend of the appellant. As soon as the Presiding Officer asked the parties to take the seats at the bar table, the appellant tried to talk to his friend. Despite the intimation by the Presiding Officer that such course was not permitted, the appellant insisted on doing so. He refused to sit down notwithstanding repeated directions by the Presiding Officer. He kept saying that he would complain against the Presiding Officer and declined to stop talking to his friend. He said he would call the police. The Presiding Officer read out Section 42 to him and then adjourned the proceedings for police to be called.
9. The proceedings were adjourned for slightly more than one hour. When it was resumed, a police officer was there. the Presiding Officer said to the appellant:
“ Now, having considered the conduct, just now, I consider that it was an insulting behaviour contrary to section 42 of the Labour Tribunal Ordinance, and the police officer will bring you back to Yau Ma Tei Police Station and then you will be released on police bail inthe sum of 3,000 on your own recognisance. And you will have to return to this court tomorrow, 11 am, and you have every single right to bring a lawyer. Okay, understand?”
10. Though it may appear from this statement that the Presiding Officer concluded that the appellant acted in breach of section 42, she actually did not do so. Judging from subsequent developments (set out below), what the Presiding Officer probably meant was that she proposed to consider if the appellant was guilty of an offence under section 42 on the next day and in the meantime the appellant could be put on bail. She also told the appellant that he had the right to bring a lawyer at the next hearing.
11. The Presiding Officer tried to resume with the case of his friend and told the appellant to go to police station. The friend indicated she had to follow the appellant to the police station and declined to proceed with her case on her own. The Presiding Officer intimated she would dismiss the friend’s claim if she refused to proceed. She insisted on leaving the court room and the claim was dismissed by the Presiding Officer after she left.
12. On 20 August 2015, the appellant appeared before the Presiding Officer and informed her that he had not yet been able to have legal representation. He had approached several lawyers and received some legal advice. However, the lawyers could not attend at short notice. He also did not want to incur costs to engage lawyers. He thought the matter would have to be dealt with by the magistrates court at Sai Wan Ho if he was charged.
13. The Presiding Office adjourned the matter to 27 August 2015 to enable him to get a lawyer. She also enquired with the appellant as to his proficiency in English. The appellant told the Tribunal that he normally did not need an interpreter but if one were to be appointed he asked for interpretation in Hindi.
14. On 27 August 2015, Mr A Marwah (not the Mr S Marwah appearing with Mr McCoy before us) appeared for the appellant. At first he applied for an adjournment as he had limited instructions and did not find himself in a position to represent the appellant properly to contest the proceedings. On the other hand, the Presiding Officer was keen on completing the proceedings on that day. She invited counsel to listen to the audio recordings of 19 August 2015. Though she alluded to the disturbance by the appellant to both sets of proceedings on 19 August 2015 (including the first case in which the appellant’s friend was not a party), that unfortunately was not picked up by her clerk. Thus, we were told (and accepted) that the clerk did not play back the audio recordings of the first case to Mr A Marwah. The transcript of the first case was not included in the appeal bundle before us. However, we have listened to the audio recording of the first case and had it played back to both teams of lawyers before the hearing of the appeal.
15. Due to the above misunderstanding, Mr A Marwah had not been fully informed of the matters the Presiding Officer had in mind when she told him that she was proceeding under section 42(1)(b) of the LTO. The difficulty was compounded by the rather unhelpful response of the Presiding Officer when Mr A Marwah requested for a statement of allegations against the appellant. Earlier on, the Presiding Officer had told Mr A Marwah that the proceedings were brought against the appellant for “disturbing and interrupting” proceedings. Later when Mr A Marwah made a request for a...
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