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Sun Min And Others v Chu Kong

Judgment Cited authorities 33 Cited in 1 Precedent Map Related
Vincent
Judgment Date06 December 2022
Neutral Citation[2022] HKCFA 24
Subject MatterFinal Appeal (Civil)
CourtCourt of Final Appeal (Hong Kong)
Judgement NumberFACV6/2022
FACV6/2022 SUN MIN AND OTHERS v. CHU KONG

FACV Nos. 6 and 7 of 2022

[2022] HKCFA 24

FACV No 6 of 2022

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 6 OF 2022 (CIVIL)

(ON APPEAL FROM CACV NO. 173 OF 2017)

____________________

BETWEEN
CHU KONG Applicant
(Respondent)
and
SUN MIN 1st Defendant (Putative)
(1 st Appellant)
YAN DONGHAI 2nd Defendant (Putative)
CHANG DAFA 3rd Defendant (Putative)
(2nd Appellant)
PACIFIC BULK SHIPPING
(CAYMAN) LIMITED		 4th Defendant (Putative)
(3rd Appellant)
and
SECRETARY FOR JUSTICE Intervening Party

____________________

FACV No 7 of 2022

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 7 OF 2022 (CIVIL)

(ON APPEAL FROM CACV NO. 174 OF 2017)

BETWEEN

MR CHU KONG Plaintiff
(Respondent)
and
SUN MIN 1st Defendant
(1st Appellant)
YAN DONGHAI 2nd Defendant
CHANG DAFA 3rd Defendant
(2nd Appellant)
PACIFIC BULK SHIPPING 4th Defendant
(CAYMAN) LIMITED (3rd Appellant)
and
SECRETARY FOR JUSTICE Intervening Party

____________________

(HEARD TOGETHER)
Before: Chief Justice Cheung, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Lam PJ and Lord Neuberger of Abbotsbury NPJ
Date of Hearing: 31 October 2022
Date of Judgment: 6 December 2022

__________________________

JUDGMENT

__________________________

Chief Justice Cheung:

1. I agree with the judgment of Lord Neuberger of Abbotsbury NPJ.

Mr Justice Ribeiro PJ:

2. I agree with the judgment of Lord Neuberger of Abbotsbury NPJ.

Mr Justice Fok PJ:

3. I agree with the judgment of Lord Neuberger of Abbotsbury NPJ.

Mr Justice Lam PJ:

4. I agree with the judgment of Lord Neuberger of Abbotsbury NPJ.

Lord Neuberger of Abbotsbury NPJ:

A. Introduction

5. The basic issue of principle raised on these appeals is whether a person other than the Secretary for Justice (“the SJ”) who wishes to bring proceedings for criminal contempt of court (an “applicant”) must obtain the consent of the SJ before commencing such proceedings. The Court of Appeal (Cheung JA, Yuen JA and Barma JA) reversing the decision of DHCJ Saunders, although agreeing with him on this point, held that such consent is not required[1].

6. The appellants, Sun Min (“Sun”), Chang Dafa (“Chang”), and Pacific Bulk Shipping (Cayman) Ltd (“PBSC”) (together “the appellants”), contend that the courts below were wrong, and that such consent is required. More particularly, as Mr Yu SC refined his argument orally, the appellants’ contention was this, that an applicant must inform the SJ of the alleged criminal contempt, whereupon the SJ has the following options, namely (i) to decide to bring contempt proceedings himself, or (ii) to decline to do so and either (a) refuse or (b) grant consent to the applicant to start such proceedings; and it is only if option (ii)(b) applies that the applicant can bring contempt proceedings without joining the SJ.

7. The respondent, Chu Kong (“the respondent”), with the support of the SJ (who was given leave to intervene by Lam PJ on 12th October 2022), argues that the courts below were right, and that, although (as is common ground) an applicant requires the leave of the court to bring criminal contempt proceedings, such proceedings require the consent of no other person.

8. After setting out the factual background, I will consider the nature of contempt proceedings, and will then address the basic issue on these appeals as a matter of principle. I will then turn to consider whether there are any domestic statutory or regulatory provisions, or any decided cases or other material which bear on the issue, following which I will address the case law and other relevant material in other common law jurisdictions. I will then express my conclusions and answer the four questions which are said to be raised on these appeals.

B. The factual background

9. For the purpose of this judgment, it is unnecessary to set out the detailed history leading up to these appeals: it is described in paragraphs 8 to 31 of Barma JA’s judgment. The following is therefore a brief, simplified summary.

10. The action underlying the instant contempt application[2] (“the underlying action”) arose from a dispute concerned with the control of the motor vessel “Grain Pearl” (“the Vessel”), which was owned by Joint Silver Limited (“JSL”), a company (i) 50% owned by the respondent and two associates, and (ii) 50% ultimately owned by Lau Wing Yan and his associates, Sun and Chang (“Lau and associates”).

11. The respondent fell out with Lau and associates, and the disagreements between them included a dispute as to what, if anything, had been orally agreed as to how decisions relating to JSL would be made, as to the role of PBSC in managing the Vessel, and as to PBSC’s fee entitlement. Lau and associates contended that the respondent had wrongly (i) appointed himself sole director of JSL, and (ii) caused JSL (a) to terminate PBSC’s Vessel management role, and (b) to issue a lien notice over certain cargo on board the Vessel.

12. These disagreements led to the commencement of the underlying action by Lau and associates and PBSC (“the plaintiffs”) against the respondent, and in the course of those proceedings, the plaintiffs applied ex parte for, and obtained, an injunction against the respondent.

13. In support of their application, the plaintiffs relied, inter alia, on three emails (“the emails”) which were exhibited to Sun’s first affirmation. The emails had been altered by one Yan Donghai (“Yan”) so as to bolster the case of Lau and associates as to PBSC’s role and fee entitlement. The respondent contends that Sun and PBSC were aware of these alterations, whereas Sun, while accepting that the emails were altered by Yan, says that she was unaware of this until January 2016.

14. After making an unsuccessful application to cross-examine Sun and Yan, the respondent applied on 17th August 2016 for leave to commence contempt proceedings (“the Contempt Proceedings”) against the appellants and Yan, based on the alteration of the emails, and also on allegedly false statements in affirmations by Sun and Yan, and an invoice allegedly fabricated by Chang on behalf of PBSC.

15. DHCJ Kent Yee granted the respondent leave to bring the Contempt Proceedings on 20th December 2016, and the appellants then applied to set aside the grant of leave. On 5th July 2017, DHCJ Saunders set aside the grant of leave on the ground of material non-disclosure, based on his view that there had been a failure to explain to DHCJ Kent Yee “the context in which the emails were used”. However, DHCJ Saunders also held that it would have been unnecessary for the respondent to obtain the SJ’s consent to the Contempt Proceedings.

16. On 25th July 2018, the Court of Appeal allowed the respondent’s appeal against DHCJ Saunders’s setting aside of leave, for reasons contained in a judgment given by Barma JA, with which Cheung JA and Yuen JA agreed. The Court of Appeal overruled DHCJ Saunders’s finding of material non-disclosure, but agreed with him that the SJ’s consent to the bringing of the Contempt Proceedings was not needed, although they considered that those proceedings would not be for civil contempt, but for criminal contempt.

17. After the Court of Appeal had refused them leave to appeal on 31st January 2022, the appellants issued notices of motion applying for leave from this Court on 28th February 2022, contending that the projected appeals would raise four “Questions of great general or public importance”. Those Questions were as follows:

1) Does the [SJ] have the exclusive right to bring proceedings against an alleged contemnor in respect of criminal contempt?

2) If the answer to the first question is in the negative, then, if a private litigant seeks to commit another for criminal contempt under Order 52 of the Rules of the High Court (Cap 4A), is he or should he be required (in the absence of exceptional circumstances such as urgency) to consult the [SJ] before he can bring an application for leave to commit under Order 52 rule 2?

3) If the answer to the second question is in the affirmative, and, assuming the [SJ], having been so consulted, declines to bring proceedings in respect of the said criminal contempt, is the private litigant required to join the [SJ] as party, and/or lay the relevant facts before the Court including any expressed views of the [SJ], when bringing proceedings for criminal contempt under Order 52?

4) In the event that the answer(s) to any of the above questions is/are in the affirmative, should the leave granted to Mr Chu to commence committal proceedings against the Defendants herein (by Deputy High Court Judge Kent Yee on 20th December 2016) be set aside and these contempt proceedings be dismissed on the basis that they are procedurally defective, and/or that there has been material non-disclosure in respect of Mr Chu’s failure to consult the [SJ] before commencing these proceedings and/or his failure to join the [SJ] to these proceedings.

18. On 18th July 2022, this Court (Fok PJ, Lam PJ and Tang NPJ) granted the appellants’ applications for leave to appeal on Questions 1 to 4.

19. Meanwhile, to complete the story, the underlying action came on for trial in April 2021, and, on the seventh day of the hearing, the plaintiffs applied for and obtained leave to discontinue the action.

C. Civil and criminal contempt of court

Contempt of court

20. There is no more important aspect of a civilized society than an effective, independent judiciary whose...

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1 cases
  • Sun Min And Others v Mr Chu Kong
    • Hong Kong
    • Court of Final Appeal (Hong Kong)
    • 6 December 2022
    ...SUN MIN AND OTHERS v. CHU KONG FACV Nos. 6 and 7 of 2022 [2022] HKCFA 24 FACV No 6 of 2022 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION FINAL APPEAL NO. 6 OF 2022 (CIVIL) (ON APPEAL FROM CACV NO. 173 OF 2017) ____________________ BETWEEN CHU KONG Applicant (Re......

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