A recent High Court decision provides important guidance on the principles governing leave applications to commence contempt proceedings based on alleged false statements in court documents, and the different thresholds for leave between criminal contempt and civil contempt.
Chen Yung Ngai Kenneth & anor v Alan Chung Wah Tang & anor [2026] HKCFI 3589 concerned the Defendants’ application to set aside leave (or court permission) for the Plaintiffs to bring contempt proceedings against them. The complaints giving rise to the contempt proceedings were alleged false statements made in the Defendants’ affidavits as well as allegedly tampered evidence exhibited to those affidavits.
Leave of the court is required to commence contempt proceedings under Order 52 of the Rules of the High Court. However, Order 41A separately requires leave for contempt proceedings arising from false statements in documents verified by a statement of truth (such as pleadings, witness statements and expert reports).
An affidavit does not require a statement of truth and is not covered by Order 41A. However, the court accepted the similarities between making a false statement in an affidavit with a false statement in a document verified by a statement of truth. Both involved telling lies in a court document for use in litigation to advance a party’s case. Both are also instances of criminal contempt (conduct causing serious interference with the administration of justice) rather than civil contempt (a breach of a court order or an undertaking to the court).
There is a public interest dimension where a false statement is made in a court document because it is liable to interfere with the course of justice. Contempt proceedings brought for this type of case are therefore public law proceedings and, where leave is granted to a private litigant to pursue contempt proceedings, it is permission to litigate for the public interest rather than his own benefit. Accordingly, when deciding whether to grant leave, the court must consider whether proceedings are in the public interest, taking into account a host of factors including the strength of the evidence, and be satisfied that there is a strong case. In addition, the requirement under Order 41A that punishment by contempt be “proportionate and appropriate” also applies.
In contrast, for civil contempt, a party pursuing contempt proceedings is acting for his own benefit. The policy justification for requiring a strong case does not apply, and a party seeking leave only needs to show a prima facie case.
Applying those principles, leave in respect of two of the four contempt complaints was set aside, and the court refused to re-grant leave to the Plaintiffs.
Eugene Kwok of Prince’s Chambers acted for the Defendants.
Read the full Decision here.
