1988, No. 2005
IN THE SUPREME COURT OF HONG KONG
Coram: Hon. Liu, J. in Court
Date of ruling: 16 November 1988
(On objection to Making a Submission of No Case)
1. The interim proceedings have taken an unusual turn. Much time has been consumed by Counsel’s submissions and a slight indispositionon my part yesterday afternoon. It is necessary to recount how matters have been allowed to develop in the manner they did.
2. Mr Bunting, Counsel for the 1st, 2nd and the 3rd respondents, intimated that a submission of no case to answer would be made on behalfof the 1st and 2nd respondents. At that juncture, Mr Graham, Counsel for the applicants, rigorously objected unless the 1st and the2nd respondents were properly put on their election. Even so Mr Graham took exception to submissions of no case to be now entertainedbefore the proposed cross-examination of the respondents concerned, presumably also the 3rd respondent.
3. Mr Bunting was thereupon invited to persuade the court that submissions of no case for the 1st and the 2nd respondents could be receivedat that stage and without an election. After Mr Bunting had completed his submissions, in order to fully assist this court, Mr Grahamsought an adjournment. It was thought at the time that time and expense would be saved by allowing Mr Bunting to proceed with hisno case submissions de bene esse. Came next morning, when Counsel for the applicant returned, no doubt fully armed with materialfor the assistance of the court, it was then the consensus that the de bene esse submissions could be conveniently brought to a conclusion.It was not anticipated that so much time would have been needed. After Mr Graham’s submissions in response this morning, Mr Grahamwished to refer to further material, so did Mr Bunting. Further submissions were advanced. Mr Graham then suggested a 45minute adjournmentfor him to reply to part of the de bene esse submission as then finalized by Mr Bunting. At that point, I indicated that it wouldnot be unwise for this court to rule forthwith on the first submission, i.e. whether Mr Bunting, Counsel for the 1st and the 2ndrespondents, should be permitted to make a submission of no case to answer without an election at this stage.
4. I am not particularly drawn to the submission made by Mr Graham on his second ground of opposition, that is to say that this wouldnot be the proper time for matters to be peremptorily brought to an end. Naturally in adversarial proceedings, the one who is entitledto cross-examination on affidavits, would be reluctant to have such an opportunity deprived of him before the court is invited todeliberate. But there is nothing really inhibitory, in my view, to pursue submissions of no case prior to the applicants’ cross-examinationon their affidavits. After all, the applicants’ charges should stand or fall on the sufficiency of their own assertions and not onany supplementary disclosures hopefully extracted in such cross-examination.
5. That leaves the other objection raised by Mr Graham to the proposed submissions of no case.
6. Historically, the distinction and procedure between criminal contempt and civil contempt is a vexed question. As known to us fora great many years, a classical example of civil contempt, sometimes described as “contempt in procedure”, is disobedience to a courtorder by a litigant. Complications in law and procedure have been mostly removed. Suffice it for our present prupose to refer top.777 of Vol. 1 of the 1988 White Book, marginal reference 52/1/5. This Court allows itself to be guided by the categories, E &F there as good examples for civil contempt. I need read only the rubrics : “E Disobedience to a judgment or order to do an act withina time specified”; “F Disobedience to a judgment or order to abstain from doing an act”.
7. The proceedings before me are by their very nature, decidedly civil proceedings, although with criminal standard of proof and specialsanction in the form of incarceration.
8. Mr Bunting cited Biba Limited v. Stratford Investments Limited reported in the Law Reports,  1, Ch. 281. In particular, Counsel referred to the brief references made there to a submission of no case. Biba was a case of contempt of court.The crucial question under consideration was whether an undertaking was in effect or had the force of a court order. The gentlemansought to be committed in Biba’s case served as a director who happened to be a solicitor of a London law firm. Complaints were madeagainst the defendant company of which Mr Lawson was a director, for various alleged unlawful activities. An action was commenced,and the defendant was served with a motion for an injunction. Mr Lawson’s law firm reached an amicable understanding with solicitorsacting for the plaintiff. At the hearing of the motion, an undertaking was tendered and accepted. It was duly recorded. Breach ofthe undertaking was alleged. On behalf of Mr Lawson an affidavit was filed in which it was suggested that Mr Lawson only played asecondary passive role and was not, in any way, aiding or abetting the alleged breach. But the crux of the matter which fell to bedecided was evidently the effect of an undertaking, not given by Mr Lawson as a director but by the company, on a breach which wasnot either aided or abetted in any way by Mr Lawson.
9. A number of premises were assumed. I should try to summarize them very briefly. At p. 284, Letter H, an assumption was made thatthere was in fact a breach as alleged. Despite the affidavit of the director, Mr Lawson, it was assumed without deciding that hewas not aiding or abetting but played a purely passive role. See p. 285, Letters E & F and p. 287 Letters D & E. In addition,there was a concession made at p. 285, Letter D, by Counsel for the director, that as a director, Mr Lawson “would or might be liableto commital under RSC Ord. 45, r. 5”. It should also be noted that no crossexamination was envisaged in Biba Limited v. Stratford Investments Limited, ante.
10. Here, much has been debated in terms of the true definition and ambit of the designated posts of the 1st and the 2nd respondents,their areas of responsibilities and their alleged involvement or participation. The amplifications of the 1st and the 2nd respondentsare not accepted and cross-examination has been secured of these two gentlemen as well as the 3rd respondent. Perhaps at this point,it would be instructive to return to the case of Biba Limited v. Stratford Investment Ltd., ante. At p. 283, Letter G & H, the beginning of the judgment, Brightman, J., as indeed Mr Bunting reminded this court of thelearned judge’s precision in the use of the English language, prefaced his judgment by these words : “This is a preliminary pointarising on a motion to commit for contempt”. It was, as I have endeavoured to illustrate, essentially a determinative question oflaw before Brightman, J. In Biba Limited v. Stratford Investments Limited, ante. What was sought to be resolved was a director’s liability under O.45, r.5 of the Rules of Supreme Court in an undertaking,as opposed to a court order.
11. A number of assumptions were made and the assumptions so made in Biba were not expected to be contested. A legal issue was takenas a preliminary point so that the motion could be wholly resolved and disposed of. Indeed, the procedure followed in Biba Limited v. Stratford Investments Limited, ante. can be said to be somewhat exceptional. In addition, it was a step in procedure taken by consensus rather than on any realjustification.
12. I am not persuaded by Biba Limited & Stratford Investments Limited ante. that I should depart from the general rule of putting the 1st and the 2nd respondents on election before I begin to entertaintheir submissions of no case to answer. The nature of the proceedings before me provides, in my view, no exceptional circumstancesnor unusual features to warrant a waiver of the general rule to make Counsel stand by his submissions of no case.
13. I would take the morning recess now and allow Mr Bunting to take instructions as to whether the 1st and the 2nd respondents wouldbe prepared to be put on election so as to enable the de bene esse submissions partially completed to be concluded. And I so rule.
Mr Peter Graham instructed by M/s. Denton Hall Burgin & Warrens for the 1st and 2nd Applicants
Mr Michael Bunting instructed by M/s. Baker & Mckenzie for 1st, 2nd and 3rd Respondents