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Legal Update

Hong Kong Court of Appeal Quashes Labour Tribunal Contempt of Court Conviction

18 December 2017
Mayer Brown JSM Legal Update

In our earlier Legal Update, we reported that in the case of Re Mahesh J Roy (CACV 226/2015), the Appellant was found guilty of insulting behaviour and disturbing proceedings by the Presiding Officer and was consequently fined HK$5,000 pursuant to section 42 of the Labour Tribunal Ordinance (Cap 25) (LTO). The Court of Appeal has now allowed the Appellant's appeal and set aside his conviction.

Facts

The Appellant was not involved in a Labour Tribunal claim, but was present in court to support his girlfriend. Before his girlfriend's case was called upon, the Appellant was seen talking to his girlfriend in the public gallery. The Presiding Officer (PO) found the conversation disturbed the proceedings. The PO therefore reprimanded the Appellant and in response, the Appellant acted in a rather belligerent manner. However, the PO did not take the matter any further at that time.

As soon as the PO called upon his girlfriend's case and invited the parties to take the seats at the bar table, the Appellant tried to talk to his friend once again. Although the PO directed that this course of action was not permitted, the Appellant insisted on talking to his girlfriend and threatened that he would make a complaint against the PO. Having considered the conduct of the Appellant, the PO took the view that the Appellant had acted contrary to section 42 of the LTO and adjourned the case to afford the Appellant the opportunity to obtain legal representation.

In the following hearing, the Appellant issued an apology to the Labour Tribunal for interrupting the proceedings but maintained that he did not do so wilfully. However, the PO still convicted him for wilfully interrupting the proceedings despite not having heard full submissions on the issue of wilfulness.

Court of Appeal

On appeal, the Court ruled in favour of the Appellant for a number of reasons. First, the Court considered that the key issue before the PO was whether the Appellant had disrupted the proceedings wilfully. It was unfortunate that the PO had completely overlooked this crucial factor before reaching her conclusion to convict the Appellant.

Second, the PO failed to give the Appellant particulars of the charge against him even though he had made a request for a statement of allegations. The Court held that the Appellant was not given sufficient information of the charge to allow him to properly defend himself.

Third, the Court held that it was wrong in principle to commit the Appellant under the circumstances of the case. The Court stressed that committal in any event is a last resort and if more moderate alternatives (e.g., a demand for apology and a warning to the wrongdoer that he may be excluded from the courtroom) are available, they should be considered. Having considered the gravity of the matter, the Court took the view that the apology tendered by the Appellant should have been viewed as sufficient and the matter should have been settled at that time.

For these reasons, the appeal was allowed and the Appellant's conviction was quashed.

Takeaways

It is perhaps common sense that both parties and non-parties to proceedings in the Labour Tribunal should not engage in wilfully disruptive conduct in the Labour Tribunal. Otherwise, the Court could exercise its committal power and sentence the offender to a fine at level 3 (which is currently at HK$10,000) and to imprisonment for six months.

Judgment is available at: http://legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=112213&QS=%28MAHESH%29&TP=JU

Authors

  • Duncan A. W. Abate
    T +852 2843 2203
  • Hong Tran
    Partner
    T +852 2843 4233
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