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The interplay between criminal, civil and public law: the role of the Secretary for Justice in criminal contempt proceedings commenced in the midst of commercial litigation

6 Dec 2022

In the judgment of Chu Kong v Sun Min and Others [2022] HKCFA 24 handed down today, the Hong Kong Court of Final Appeal (“CFA”) confirms that a person other than the Secretary for Justice (“SJ”) who wishes to bring proceedings for criminal contempt of court need not obtain the SJ’s consent before commencing such proceedings.

In brief, criminal contempt proceedings were commenced by the Plaintiff/Respondent against the Defendants in the course of civil litigation.  The relevant Defendants/Appellants contend that no such proceedings may be brought without the consent of the SJ.

In what appears to be the only decision directly addressing the point across all common law jurisdictions (with cases from Hong Kong, England and Wales, Scotland, Australia, Canada, Ireland, Uganda, Singapore and the United States being cited in the judgment), the CFA (consisting of Chief Justice Cheung, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Lam PJ and Lord Neuberger of Abbotsbury NPJ) unanimously held that no such requirement can be found, whether as a matter of legislation or case law.

First, starting with the principles, Lord Neuberger NPJ (giving the judgment of the Court) highlighted the public interest underlying the court’s contempt jurisdiction, noting that there is no more important aspect of a civilized society than an effective, independent judiciary whose orders are respected and obeyed. The distinction between and essential ingredients of civil contempt (the breach of a court order or of an undertaking to the court) and criminal contempt (conduct which so threatens the administration of justice that it requires punishment from the public point of view) was also explicated. It was held that the ability of any person to bring an alleged contempt to the court’s attention should not be unduly fettered.

Secondly, Lord Neuberger NPJ turned to the domestic constitutional and legislative provisions, as well as relevant case law and other materials. A key observation made was that the Basic Law aims to provide for continuity between the pre-existing and the present courts and judicial systems in Hong Kong, and there is no suggestion that control over criminal contempt proceedings shall be handed over to any entity other than the court. It was concluded that there is no Hong Kong case law or legislation which has the effect of cutting down an applicant’s in this regard, other than the need to obtain the court’s leave in commencing criminal contempt proceedings.

Thirdly, after examining both the relevant legislation as well as judicial observations in cases decided in Hong Kong as well as various other common law jurisdictions, including England and Wales, Scotland, Australia, Canada, Ireland, Uganda, Singapore and the United States, Lord Neuberger NPJ concluded that the law seems to be well-established that, subject to obtaining the leave of the court, a private party is free to initiate criminal contempt proceedings.

Johnny Mok SCMichael Lok and Charlie Liu acted for the Plaintiff/Respondent.