WONG SHUN v. SUN CHING YEE

HCMP001096/1991

MP No. 1096 of 1991

HEADNOTE

Contempt of court – application for committal – attempt to bribe opposing solicitor – whether a contempt – punishment.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS NO. 1096 OF 1991

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IN THE MATTER OF an Application by Wong Shun for An order of committalagainst Sun Ching Yee

and

IN THE MATTER OF order 52 of the Rules of the Supreme Court

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BETWEEN

WONG SHUN

Applicant

AND

SUN CHING YEE

Respondent

Coram: The Hon. Mr. Justice Sears in Court

Dates of Hearing: 29 & 30 July 1991

Date of Delivery of Judgment: 31 July 1991

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J U D G M E N T

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1. This is a motion to commit John SUN Ching-yee (the Plaintiff in action A6808) as a result of leave being granted by me. The statementin support of the notice of motion seeks committal on the grounds that he did interfere with an officer of the court Peter Wai KeungLO “in particular by offering an advantage as an inducement and/or reward to the said Peter LO in relation to the affairs of theapplicant”, (the Defendant in Action A6808).

2. In 1986 the defendant had sued the OTB and recovered approximately $18 million for commission on the sale of a bank. It is not necessaryto recite the facts of that case in any detail.

3. The plaintiff considered that he was entitled to a share of this commission. Mr. LO, the solicitor involved in this case, was friendlywith both the plaintiff and the defendant and he arranged a meeting in mid-1987 at Raffles Club where he sought to mediate in thedispute between the plaintiff and the defendant. It was thought the matter could be settled by payment of a sum of money from thedefendant to the plaintiff. This, however, proved unsuccessful and so the plaintiff issued proceedings against the defendant forhis share which he said was half of the commission which the defendant had already obtained.

4. Mr. LO’s firm then acted as solicitors for the defendant although Mr. LO told me that the main conduct of the case was entrustedto an articled clerk. His firm is a small sole partner firm and of course the articled clerk was acting under his supervision.

5. Judgment was entered on 8th March this year by Mr. Justice Saied for the plaintiff for 9 million dollars plus half of the interestwhich the defendant had obtained from the bank plus interest on those 2 sums of money. Mr. McCoy says that this total judgment isnow worth in the region of some 20 million Hong Kong dollars.

6. On 11th March a telephone call was made by the plaintiff to Mr. Lo. He said he called from his solicitors’ offices because he wantedto find out where the defendant was. Shortly after obtaining the judgment, the plaintiff had obtained a Mareva injunction over theassets of the defendant.

7. On 14th March Mr. LO said that he received a telephone call at his office from the plaintiff who asked to come to see him at hisoffice; Mr. LO says that he told the plaintiff that anything relating to the action should be dealt with through his solicitors.The plaintiff then said that this was a purely personal matter, so they met in the Clipper Lounge of the Mandarin Hotel.

8. At that meeting the plaintiff indicated that it was without prejudice. Apparently the earlier meeting at Raffles had also been onthat basis. He was asked to act as financial consultant. Mr. LO said – there appears to be no dispute at all – that what that meantwas assisting him as a financial consultant and that he was told by the plaintiff that he would be paid 10 per cent of whatever couldbe recovered from the defendant up to $5 million and 20 per cent of whatever could be recovered above $5 million, and with the sortof figures as I have mentioned, this would have amounted to a substantial sum of money. Mr. LO told the plaintiff that this was illegaland the conversation turned to other matters.

9. In this motion, I have to resolve two questions. First, what was actually said at the meeting on 14th March; and, secondly, if theconversation was as stated by Mr. LO, did it amount to a contempt of court?

10. In order to decide these questions, I must adopt a criminal standard of proof, this being a criminal contempt, and therefore in resolvingthese matters, I must be sure that what was said was said and, secondly, that it did amount, if it was said, to a contempt.

11. Dealing with the first matter, Mr. LO gave evidence. He struck me as a person of truth. He gave his evidence in a quiet, dignifiedmanner. He was indeed reluctant, I consider, to be involved in this matter. Shortly after the event, he had sworn an affidavit, ashe was advised by experienced counsel that he should set this out and draw it to the Court’s attention. In my judgment the advicewhich was given to him was not only perfectly proper but was eminently sensible and Mr. LO. I consider, did so with reluctance, becausehe was dealing with not only his client who was a friend but also the plaintiff with whom he had been friendly over a number of years.In my judgment his evidence had the ring of truth about it. It was put to him that he had misinterpreted what had been said to him.The answer that he gave was, “I wish I had misinterpreted”.

12. The plaintiff Mr. SUN Ching-yee gave evidence and was cross-examined. He struck me as a person, no doubt an experienced businessman,who appears to be suffering certain emotional problems at the present stage. I thought he was evasive. I thought on occasions hewas deliberately lying and I found that I could not accept his evidence at all insofar as there was any conflict with that of Mr.LO. A lot of his evidence seemed to me highly improbable. It appeared devious. He did not really address his mind to the main issues.

13. His affidavit which he produced, many many weeks after the allegation had first been made, admitted that Mr. LO had said to him thatwhat had been said was illegal; he seeks to explain this by putting forward a story, in my judgment, a concocted story, about otherfinancial consultants. He arranged the meeting. The only object of him wanting to see the solicitor who had been acting for the defendantwas in order to seek in some way assistance with recovering his debt. What he did of course was to seek to recover it in a thoroughlyimproper and unlawful method.

14. I am sure on the evidence that I have heard that he has not been telling me the truth and I am equally sure that the evidence ofMr. LO is to be accepted and that what occurred was that the plaintiff was deliberately seeking to bribe Mr. LO by the offer of asubstantial sum of money in order to gain some advantage in recovering his judgment. What he was trying to do, in my judgment, wasto discover where were the assets of the defendant, who had recovered some 18 million dollars – and no doubt with careful investmentthis sum would have grown substantially – and he was seeking to make the defendant’s solicitor, as Mr. Swaine put it, really double-crosshis client.

15. Having regard to all these matters, I am in no doubt that what took place on 14th March is as set out by Mr. LO and that this wasan intentional, deliberate attempt to bribe this solicitor.

16. The second question then arises – which is a question of law – was that a contempt of court? It has been said that it was probablyan offence under the Bribery Ordinance. The mere fact that it is an offence does not turn it into a contempt, as Mr. Swaine recognises.

17. Contempt of Court has developed over the years and as was stated in Borrie and Lowe‘s ‘Law of Contempt’:-

“Essentially a creature of common law, contempt has been and continues to be developed and adapted to meet changing challenges tothe ‘supremacy of the law’. One result of this continuing development and concern to protect the many facets of the administrationof justice is that there are many forms of contempt. One commentator has described contempt as ‘the Proteus of the legal world assumingan almost infinite diversity of forms’, but equally it can be said that contempt of court is as diverse as are the means of interferingwith the due course of justice.”

18. In Attorney-General v. Butterworth (1963) 1 QB 696 at page 723, Donovan L.J. (as he then was) said:-

“The question to be decided here, as in all cases of alleged contempt of court, is whether the action complained of is calculatedto interfere with the proper administration of justice”.

And at page 725 he said:-

“The question is whether the respondents’ action was calculated so to interfere, and this involves a consideration not of their stateof mind on this particular point but of the inherent nature of their act: see as to this the decision in Reg. v. Odhams Press Ltd.,Ex parte Attorney-General (1957) 1 QB 73. Some time was spent in discussing the implications of this decision. It was suggested for the respondents that it means that thetest in cases of contempt is always purely objective. Was the action of itself calculated to interfere with the administration ofjustice? An article publicly accusing a man of crime against whom criminal proceedings had already been begun would clearly havethat effect. But simply to try to remove a man like Greenlees from two honorary posts which he held, and to do so in conditions ofcomparative privacy, could not, it is argued, possibly have a corresponding effect. I conceive the position, however, to be this.Reg. v. Odhams Press Ltd., Ex parte Attorney-General makes it clear that an intention to interfere with the proper administrationof justice is not an essential ingredient of the offence of contempt of court. It is enough if the action complained of is inherentlylikely so to interfere.”

19. In re an application by LIU LEE Yuk-ching (1982) HKLR 399, Hunter J. sets out at page 408 a number of principles concerning contempt. The first was a citation from R. v. Gray (1900) 2 QB 36, where Lord Russell C.J. said:-

“Any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of thecourts is a contempt of court.”

20. It is of vital importance at this time in Hong Kong’s history that the administration of justice is seen to be of the highest qualityand that no one will be permitted to interfere with the due course of justice. It is not only the face, but also the substance ofjustice which must be protected. I am in no doubt that what the plaintiff was doing on this occasion was dishonestly trying to interferewith the normal method of execution by obtaining confidential information about the defendant.

21. The employment of financial consultants for debt collecting is lawful but the means they utilise must also be lawful. If debt collectorsseek to go outside the law, they can be punished according to our criminal law.

22. Mr. LO, the defendant’s solicitor, owed a duty to protect his client’s interests, and as an officer of the court he owed a duty tothe court to act honestly and responsibly in the conduct of litigation.

23. His firm continued to act for the defendant after judgment had been pronounced.

24. Mr. McCoy submitted that Mr. LO, even if the offer was made to him, was not “executing his duty”. He cited Re Clements and Costa Rica Republic v. Erlanger (1877) 46 LJ CL 375 where it was held that when a solicitor lost his temper, ejected the opposing solicitor from his office and abusedhim, this did not amount to contempt.

Mellish LJ said:-

“If we were to hold this to be contempt it would really amount to this, that whenever the solicitors in an action, or the clerks tothe solicitors in an action, happen to meet each other with reference to some matter respecting the action, and one or other loseshis temper and uses words which he ought not to use, that is to be considered as a contempt of Court. It appears to me most undesirablethat such a rule as that should be laid down.”

25. The facts of this case are vastly different – this was not vulgar abuse but a determined offer of a bribe.

26. In my judgment the actions of the plaintiff were calculated to affect adversely the due administration of justice. It was suggestedthat what took place here was merely an attempt to commit a contempt and therefore in law not a contempt.

27. In Balogh v. Crown Court (1974) 3 AER 283, a law clerk had sought to introduce laughing gas into the air-conditioning system of a Court as he said “to liven up the proceedings”,but he had not in fact succeeded. He was sentenced to 6 months’ imprisonment, but the Court of Appeal held that it was not contemptto plan or intend a contempt.

28. Mr. McCoy submitted that even if Mr. LO’s evidence is accepted, what occurred was only an attempt to commit a contempt.

29. I accept the submission of Mr. Swaine that the contempt here was the offer to bribe. It does not matter in my judgment that thatoffer was not accepted. Indeed, if it had, both of these persons would have committed a contempt.

30. I therefore find that on the evidence I am sure that the plaintiff is in contempt of court.

31. What punishment should now follow? I made it plain near the conclusion of submissions that if such a contempt was proved, then asentence of imprisonment was probably likely.

32. The attitude of the plaintiff in giving evidence, accusing Mr. LO of telling a pack of lies and really being part of a conspiracyto prevent him obtaining his due judgment, seemed both irresponsible and misconceived. Further, attempts were made in cross-examinationof Mr. LO to attack him by referring to irrelevant and unsubstantiated matters which bring little credit to the general conduct ofthe plaintiff’s answer to this motion for committal.

33. His account in his evidence fell far short of any recognition of his involvement in anything improper. If that attitude had continued,I would have had no option but to send him to prison. It must be made clear that those who improperly interfere with the administrationof justice should be sent to prison because they tarnish the image of justice. Public confidence in the system of justice in HongKong must be paramount. It is a basic right of anyone living in a civilised system of justice that he has a fair trial, whether incivil or criminal matters, and judges must be vigilant to ensure that this right is not weakened nor prejudiced. For that reasonthis type of contempt is serious and should merit severe punishment.

34. However, Mr. McCoy sought my leave to recall the plaintiff at the conclusion of his submissions and I gave that leave. He then apologisedand recognised that his actions may well have been misconceived. He told me that the trial had been long and very expensive. He hadbeen sleeping badly and was in an emotional state. Further, his wife was due to give birth to a child. He had been successful inthe judgment and obtained a substantial sum, maybe approaching 20 million dollars, and had been told apparently the defendant mayhave little money. It had caused him some annoyance to see the defendant in a new Jaguar motor-car.

35. It may well be that in that emotional state the plaintiff over-reacted in trying to bribe Mr. LO. He may have thought that in thatstate of mind he could try anything to get his money. His attitude was “Well, it is my money, I am entitled to it, and thereforewhy should I not get it in any way I can?”.

36. Furthermore, it must be remembered that he had a long association with Mr. LO, who was a friend of his and had sought to mediatein 1987 at the Raffles meeting. Insofar as Mr. LO would have been utilised for the purpose of putting the plaintiff and defendantback again into a position of mediation in my judgment would not have been improper; it would have been unwise, but I can see nothingimproper in that solicitor seeking to mediate on the judgment.

37. Therefore, as the defendant may have been in this confused state of mind, the Court should recognise that his actions can be seenin a different light. Furthermore, nothing was done which caused any prejudice to the defendant at all, also, once this matter hadbeen raised, it does not appear to have been raised again. The plaintiff, accordingly, has found himself facing this motion for committalwith no doubt the additional costs and stress which this sort of situation brings.

38. I have made it clear in the course of my judgment that the Court is not concerned with the personalities but the preservation ofthe substance of justice. For that reason, as I have indicated, these matters are dealt with on a serious basis and for such contempt,imprisonment normally would follow.

39. However, having regard to all of the factors which I have sought to set out and the apology, albeit late and not very full, whichthe plaintiff has offered the Court, and my recognition that he is perhaps a man who has had considerable emotional stress, I considerthat I am fulfilling my public duty were I to say that the punishment for purging this contempt of court is that he pay all the costsincurred by the defendant in this motion on an indemnity basis, that is the order I make on this Notice of Motion.

(R.A.W. Sears)

Judge of the High Court

Representation:

Mr. John Swaine, Q.C., and Mr. J.J.E. Swaine, instructed by M/s Peter W.K. Lo & Wong, for the Applicant.

Mr. McCoy, instructed by M/s Hampton Winter & Glynn, for the Respondent.