Levitt v. Angel

CrimA 6/50 Levitt v. Angel 1
Crim.A. 6/50 
LEVITT 
v. 
ANGEL 
In the Supreme Court Sitting as a Court of Criminal Appeal 
[June 30, 1950] 
Before: Dunkelblum J., Olshan J., and Cheshin J. 
 Contempt of Court - Civil and criminal contempt - Contempt of Court Ordinance,
1929 s. 6(1) - Criminal Code Ordinance, 1936, s. 143 - Object of civil contempt 
proceedings to enforce compliance with order of court and not to punish offender 
- Differences between English and Israel Law.
 The appellant, who had allowed third parties to occupy premises in breach of an injunction restraining 
him from so doing was convicted of contempt of court under the Contempt of Court Ordinance and was 
sentenced to a fine of I.L. 250 or three months imprisonment. This sentence was imposed on the appellant 
by the District Court not for the purpose of inducing him to comply with the terms of the injunction, which 
had become impossible, but as a punishment for its breach. 
 
 Held, allowing the appeal, that the purpose of the sanctions in the Contempt of Court Ordinance is to
enforce the carrying out of an order of court and not to punish a person held in contempt, for which other 
legislation existed. 
 
Palestine case referred to : 
(1) Cr. A. 2/47; Taasiya Chemit Tel Aviv Ltd. v. Kupat Cholim shel Hahistadruth Hakialit 
shel Haovdim Haivrim and another; (1947), 14 P.L.R. 348. CrimA 6/50 Levitt v. Angel 2
English cases referred to : 
(2) Re Clements, Costa Pica Repablic v. Erlanger; (1877), 46, L.J. Ch. 375. 
(3) In re Maria Annie Davis; (1888), 21 Q.B.D. 236. 
(4) Seaward v. Paterson; (1897) 1 Ch. 545. 
(5) Scott (otherwise Morgan) and another v. Scott; (1913), A.C. 417. 
(6) Wellesley v. The Duke of Beaufort; (1831), 39 E.R. 538. 
(7) Re Newbery; (1835), 111 E.R. 725. 
Miller for the appellant. 
Metosevitch for the respondent. 
OLSHAN J. The respondent, the plaintiff in Civil Action, 839/ 49, which is pending in the 
District Court of Tel Aviv, obtained an injuction from that court in the following terms: 
"After having considered the petition of the said plaintiff, and after 
hearing the arguments of counsel, it is decided to issue an interim order 
prohibiting, until the conclusion of the case, the respondent, his servants 
or agents from delivering possession of the said room to any person or 
persons who are not today living in the said room, in the event of its 
being vacated by the respondent." 
 The respondent applied to the lower court to impose a fine or imprisonment upon the 
appellant (the defendant in the said case) under section 6(1) of the Contempt of Court 
Ordinance, 1929,1) by reason of his having disobeyed the order referred to above . 
 
 The learned judge who dealt with the application found the following facts : 
 
 At 6 a.m. on December 1, 1949, the appellant vacated the room in question and at the 
same time a number of people moved their furniture into the room with the appellant's 
permission. A few hours later, after all the persons concerned had been brought to the 
Police Station, some of the trespassers shouted at the appellant and demanded the return of 
 
1) For text of s. 6(1). See infra p. 36. CrimA 6/50 Levitt v. Angel 3
"the money". The appellant had in fact handed the keys to the respondent before this, but 
the learned judge was satisfied that this was an act of deceit designed to cover up his breach 
of the injunction referred to. 
 
 It would appear that the persons referred to had vacated the room after the 
intervention of the police, but had returned a few hours later. 
 
 On December 16, 1949, the learned judge imposed upon the appellant : "a sentence of 
a fine of I.L. 250 or imprisonment for three months, on condition that after the first 
respondent (that is to say, the appellant in this appeal) shall have served at least one third of 
the imprisonment above mentioned he shall be entitled to apply to court for a reduction of 
the sentence, and the court will no doubt take into account his efforts to remedy the damage 
caused by him. 
 The persons who entered the room without permission were joined as parties to the 
above application, and an order was made against some of them directing them to vacate 
the room within twenty four hours. This order, however, was not directed against the 
appellant. He was sentenced, but no order to vacate the room was made against him, 
because as the learned judge pointed out in his decision, "it is possible that the appellant no 
longer has any direct control over those in possession of the room, and therefore it would 
not be proper to compel him directly to enforce the order.'' 
 
 These are the facts upon the basis of which this appeal against the order dated 
December 16, 1949 has been brought. 
 
2. Had it still been possible for the appellant to rectify the situation and to give effect to the 
injunction at the time the fine was imposed upon him, and had the fine been imposed upon 
him in order to compel him to obey the injunction, we should have found nothing wrong in 
the decision of the learned judge. In this case, however. a punishment has been imposed 
upon the appellant for an offence committed by him without there being any danger, so far 
as he is concerned, of being tried a second time should he persist in his wrongful conduct. 
This, moreover, was done under section 6(1) of the Contempt of Court Ordinance, not CrimA 6/50 Levitt v. Angel 4
under normal criminal procedure, but under the procedure laid down in that section of the 
Ordinance. 
 An important question arises, therefore, in regard to the meaning and purpose of 
section 6(1) of the Contempt of Court Ordinance. The question is : does this section apply 
when the purpose is to punish a wrongdoer for failure to obey an order of court, or is it 
intended to impose a fine or imprisonment in order to compel a wrongdoer to obey such an 
order? 
 
 It would appear from the decision of the learned judge that he accepts the former 
alternative, for it is for this reason that he specifically imposed "a punishment" upon the 
appellant and discharged him from the responsibility of obeying the order in the future. It is 
for as, therefore, to determine whether this approach of the learned judge is correct. 
 
3. It would seem that in applying section 6(1) the learned judge followed the practice of the 
courts in England. 
 English law recognises two forms of contempt of court : 
 (a) Criminal Contempt of Court - where the course of justice is impeded by means of 
disturbances, by words or acts. 
 (b) "Contempt of Court affecting procedure" which is usually also called Civil 
Contempt of Court, where orders are disobeyed, with the result that the rights of 
the individual are defeated. 
 Contempt of Court of the first class is a misdemeanour which renders the wrongdoer 
liable to be charged, as in the case of any other offence. 
 
 Contempt of Court of the second class - where there has been disobedience of an order 
of court - is a matter between the parties, and results in the invoking of sanctions against the 
party who committed the breach of the order, in order to compel him to obey such order. 
There is no element of punishment in such sanctions as there is for a criminal offence. If the CrimA 6/50 Levitt v. Angel 5
disobedience is intentional and wilful it assumes a criminal character, and is then liable to 
become a matter between the state and the wrongdoer. For so long as the contempt does 
not assume a criminal character there is no room for the imposition of a punishment, but 
only for the taking of steps to enforce compliance with the order. (See Halsbury, Laws of 
England, Second Edition, vol. 7, p. 24.) 
 
 In order to punish contempt which contains a criminal element, it is the practice of the 
English courts to exercise their inherent powers. Unlike the case where o wrongdoer is 
charged with contempt upon a charge sheet the court is entitled, when exercising its 
inherent powers, to impose upon a wrongdoer a punishment of a fine or imprisonment 
without any limitation. The wrongdoer is liable to be sent to prison for an unspecified 
period, except that he may apply to court from the place of his imprisonment for an order of 
release. The ordinary criminal procedure is no longer often employed for the trial of a 
wrongdoer for the misdemeanour of contempt of court. (See Halsbury, vol. 7, p. 3, note 
(e)). It is interesting, nevertheless, to point out that the judges do not regard the use of this 
inherent power favourably, when there is no compelling reason to refrain from using the 
ordinary criminal procedure. In re Cletments and Costa Rica Republic v. Erlanger (2) 
Jessel M.R. said : 
 
"This jurisdiction... being practically arbitrary and unlimited should be 
most jealously and carefully watched and exercised, if I may say so, with 
the greatest reluctance and the greatest anxiety on the part of Judges to 
see whether there is no other mode which is not open to the objection of 
arbitrariness." 
 
 Criticism has been leveled particularly against the imprisonment of a wrongdoer for an 
unspecified period for acting contrary to an order of court, when it is not within his power 
to remedy the damage done. See the remarks of Mathew J. in Inre Maria Annie Devis (3) 
who said : "It should be borne in mind that contempt of court is a criminal offence, 
punishable as a misdemeanour by fine and imprisonment or both." 
 
 There is a distinction, therefore, between the imposition of a punishment for 
disobedience of an order of court and the taking of steps to enforce obedience to an order. CrimA 6/50 Levitt v. Angel 6
In England this distinction is not important since in both cases the courts deal with the 
matter in the exercise of their inherent powers; and because in the absence of a statutory 
provision no question arises there as to which section, or which law, is to be applied to the 
different classes of contempt of court. The court in England will exercise its powers 
according to the circumstances of each case brought before it. 
 
4 The question therefore arises whether, in view of section 6(1) of the Contempt of Court 
Ordinance, the courts of this country may act in the same manner as the English courts. 
May section 6(1) of the Contempt of Court Ordinance also be applied where the imposition 
of a five or imprisonment is required not in order to secure the carrying out of the order by 
the party who committed a breach of that order, but for the sole purpose of inflicting a 
punishment? In say opinion the answer to this question is in the negative. The reasons which 
have led me to this conclusion are as follows : 
 (a) Section 6(1) does not speak of a fine or imprisonment as of a punishment which is 
imposed for a criminal offence, but as a means of compelling one of the parties to 
obey an order of court - that is to say, "to compel him until he says that he is 
willing." 
 (b) Section 8 of the Contempt of Court Ordinance does not simply lay down that 
there is a right of appeal from a sentence imposed under section 6(1), but provides 
a right of appeal "on the same conditions as an appeal from a criminal judgment". 
In other words, it is only for the purposes of appeal that a decision under section 
6(1) imposing a fine or imprisonment is similar to a criminal judgment. The word 
"penalty" in section 8 does not alter the position. That word refers to a decision 
imposing a fine or imprisonment in order to enforce obedience to an order, and 
affords no proof that section 6(1) refers to a punishment which is imposed for a 
criminal offence. In the same way, for example, the legislature used the same word 
"penalty" in the Stamp Duty Ordinance in imposing a fine on a person who has not 
impressed the amount of adhesive stamps as required by law, despite the fact that 
an act such as this is not included in section 81 of the Ordinance, which lists the 
criminal offences committed in regard to the provisions of the Stamp Laws. 
Moreover, in section 5 of the original Contempt of Court Ordinance of 1924, CrimA 6/50 Levitt v. Angel 7
which conferred a right of appeal from the decisions of the courts under other 
sections of the same Ordinance as well, the distinction between section 4 (section 
6(1) of the 1929 Ordinance) and the remaining section was intentionally 
emphasized. 
 In regard to decisions under the remaining sections the Ordinance speaks of 
"an appeal... from a conviction and sentence...", whereas in regard to decisions 
under section 4 it provides "an appeal from a judgment...". 
 
 (c) It would appear from the Contempt of Court Ordinance that the legislature did not 
intend to leave the maximum punishment which may be imposed upon an offender 
to the discretion of the judge. In section 3 a maximum punishment of a fine of I.L. 
5 or imprisonment for one month is laid down; in section 4 a fine of I.L. 100 or 
imprisonment for one year or both these punishments is provided for; in section 5, 
imprisonment for one month. In section 6(1), however, no maximum has been laid 
down. It follows, therefore, that the legislature did not intend this section to be the 
basis of a punishment for a criminal act. 
 (d) The legislature knew of the Contempt of Court Ordinance when it enacted the 
Criminal Code Ordinance in 1936. It may be assumed, therefore, that had the 
"imposition of a punishment" for disobedience for an order of court been included 
in section 6(1) of the Contempt of Court Ordinance, the legislature would not 
have enacted section 143 of the Criminal Code Ordinance in terms of which every 
person who disobeys an order of court is guilty of a misdemeanour and is liable to 
imprisonment for two years. 
 (e) In terms of section 143 of the Criminal Code Ordinance disobedience of any order 
of court is made an offence as is also disobedience of an order given "by any 
officer or person acting in any public capacity and duly authorised in that behalf", 
and for this offence a punishment of imprisonment for a period not exceeding two 
years is provided. This section contains two provisos, namely : "unless (a) any 
other penalty is expressly prescribed or (b) any other mode of proceedings is 
expressly prescribed in respect of such disobedience". It is possible that these CrimA 6/50 Levitt v. Angel 8
provisos also give some hint as to the meaning of section 6(1) of the Contempt of 
Court Ordinance. It seems to me that the first proviso cannot refer to section 6(1) 
since that section contains no express provision relating to the imposition of a 
punishment and it is difficult to regard the giving of power to the court to enforce 
obedience to its orders as "the express provision of another penalty". The second 
proviso may apply to section 6(1). This proviso does not speak of "any other 
mode of imposing a penalty in respect of such disobedience", but it speaks of "any 
other mode of proceeding in respect of such disobedience". "Any other mode" - 
that is to say, another way of dealing with the act which constitutes this 
disobedience - in other words, in place of the imposition of a penalty for 
disobedience to the order of court, there is a proceeding for enforcing obedience 
to such order. 
 (f) Finally, the original section 6(1) does not speak of courts in general but of 
particular courts. The Contempt of Court Ordinance in its present form was 
enacted in 1929. The law in force at that time was the Ottoman Criminal Code 
which contained no section whatsoever in terms of which disobedience to an order 
of court could be punished. Is it possible that the legislature intended in section 
6(1) to confer upon particular courts alone the power of imposing a punishment 
for disobedience of their orders? It is true that the power of granting injunctions 
had not yet been conferred upon magistrates but they were able to issue other 
orders. Is it possible that the public interest did not also demand the imposition of 
a penalty for failure to obey the order of a magistrate? It follows that section 6(1) 
was designed to enforce obedience to an order and not to impose a penalty for an 
offence. It was only in 1936, in section 143 of the Criminal Code Ordinance, that a 
penalty was provided for disobedience of an order given by any court. Since 
magistrates had no power to grant injunctions no importance was attached to the 
enforcement of their orders. Proof of this is to be found in the fact that in 1947, 
when the power was conferred upon magistrates of granting injunctions (see 
Ordinance 45 of 1947) section 6(1) was also amended so as to include magistrates 
courts. (See Contempt of Court (Amendment) Ordinance, 1947). CrimA 6/50 Levitt v. Angel 9
5. In Taasiya Chemit Tel Aviv Ltd., v. Kupat Cholim, (1), in which a fine of I.L. 5000 was 
imposed, the argument was advanced upon the basis of section 41 of the Criminal Code that 
since no maximum fine was laid down in section 6(1) of the Contempt of Court Ordinance, 
the maximum was I.L. 200. The court said : 
"Section 6 of the Contempt of Court Ordinance was enacted for the 
purpose of enforcing by fine obedience to an order issued. The object of 
the section is not as is contemplated by section 41 of the Criminal Code 
Ordinance, but to give authority to impose a fine which would be 
sufficient to enforce obedience." 
 
6. It appears to me from the decision of the learned judge in the case before us that he 
issued the order against those who entered the room without permission in order to secure 
obedience to the injunction, while he imposed upon the appellant a punishment as for a 
criminal offence. It seems to me that the direction that should the appellant elect to be 
imprisoned he may, alter having completed a third of the sentence, apply to the court for a 
reduction of the sentence and the court would take into consideration the efforts of the 
appellant to remedy the damage which he had caused, was only intended to induce the 
appellant to make it easier for the trespassers - who were obliged to carry out the order - by 
returning them their money if, in fact, he had received money from them. 
 The learned judge himself says in paragraph 6 of his decision that "the purpose (of the 
remedy sought - the imposition of a fine or imprisonment) is not to punish but to enforce 
obedience to a particular order given by a civil court by means of the imposition of a 
penalty", while in paragraph 11 he says : "in the face of open and impudent contempt such 
as this, there is no alternative but to impose a suitable punishment upon the first 
respondent." 
 
 It is possible that reliance may be placed upon section 143 of the Criminal Code 
Ordinance in order to punish the appellant for disobeying an order of court, but the use of 
section 6(1) of the Contempt of Court Ordinance and the procedure laid down for that 
purpose is not in accordance with law. 
 CrimA 6/50 Levitt v. Angel 10
 In my opinion the decision of the learned judge of December 16, 1949, in regard to the 
appellant must be set aside. 
 
DUNKELBLUM J. I concur, with some hesitation, in the conclusion reached by my 
colleague, Olshan J., and wish to add a number of comments of my own. 
 The problem before us is the interpretation of section 6(1) of the Contempt of Court 
Ordinance. The question is whether this section also applies to a case where the accused has 
acted contrary to an order of court but is no longer able to remedy the situation. In other 
words, is the section only intended to compel a person to comply with a judgment by 
imposing a fine or imprisonment and that such means of compulsion may not be employed if 
the act committed by the accused is no longer capable of being corrected by him, or does 
the section also include an element of punishment to be imposed upon a person who 
disobeys an order of court although he can no longer remedy the position, the object being 
to warn others. 
 
 The distinction between criminal contempt of court and contempt which is only 
disobedience of an order given by the court in civil proceedings has been known to English 
law for some time. ln speaking of the second type of contempt of court proceedings, it is 
pointed out by Lord Lindley, in the case of Seaward v. Paterson (4), that "the party who is 
bound by the injunction is proceeded against for the purpose of enforcing the order of the 
court for the benefit of the person who got it... The person who is interested in enforcing 
the order enforces it for his own benefit." In cases falling into the first class the court is 
concerned not to permit a person to treat it with contempt. 
 
 Lord Atkinson defined more clearly the nature of the first class of contempt, that is to 
say, civil contempt of court, in the case of Scott v. Scott (5). At page 456 Lord Atkinson, 
after referring to various judgments relied upon by counsel for the parties, said : 
 
"It was contended that these cases show that the disobedience of an 
order of court constitutes in itself a crime, a criminal contempt of court. 
Unfortunately for this contention, however, they do something more 
than that; they show I think, conclusively, that if a person be expressly CrimA 6/50 Levitt v. Angel 11
enjoined by injunction, a most solemn and authoritative form of order, 
from doing a particular thing, and he deliberately, in breach of that 
injunction, does that thing, he is not guilty of any crime whatever, but 
only of a civil contempt of court." 
 
 Acts which constitute the first class of contempt are of an entirely different character, 
such as an attempt to influence witnesses, to threaten witnesses, interference in the work of 
the court which disturbs the proceedings, acts of disturbance generally, shouting and 
demonstrations in court, and acts of a similar nature. (See for example the judgment of Lord 
Shaw in Scott v. Scott (5), and also the judgment of Lord Atkinson at p. 455.) 
 
 It is possible therefore to distinguish shortly between these two classes of contempt, 
and to say that to the first class belong acts which are of such a nature as to disturb the 
work of the court or which are liable to influence the proceedings in court, while acts which 
do not possess these characteristics but consist in disobedience of an order given in favour 
of a litigant in a civil proceeding, belong to the second class. 
 
 The Palestine legislature found it proper to regulate the question of contempt of court 
by legislation. The opening sections - that is to say sections 3, 4, and 5 - deal with acts 
which belong to the first class, while section 6 of the Ordinance speaks only of disobedience 
of an order which is to be executed in favour of the interested party. It is true - as is said in 
a number of English judgments - that there is also a criminal element ill the imposition of a 
penalty for disobedience of an order in a civil proceeding (see for example the judgment of 
Rigby J. in the case of Seaward v. Paterson (4) at p. 558; and see Halsbury, vol. 7 p. 24). 
As far, however, as the question before us is concerned, we are obliged to rely, in the main, 
upon the provisions of section 6(1) of our Ordinance, and the correct interpretation to be 
given to the expressions employed by the legislature. The section provides as follows : 
 
"6(1) The Supreme Court, the Court of Criminal Assize, a special 
Tribunal constituted under article 55 of the Palestine Order in Council, 
1922, the District Court and the Land Court shall have power to enforce 
by fine or imprisonment obedience to any order issued by them directing 
any act to be done or prohibiting the doing of any act." CrimA 6/50 Levitt v. Angel 12
 
 The object of this section, therefore, is to impose a fine upon a person or to direct his 
imprisonment for the purpose of compelling him to carry out an order of court, and if that 
person did an act which he cannot remedy, then according to the interpretation of the 
section he is not to be imprisoned or fined since the court will not compel him to do 
something which he is unable to do. It is possible that the result of this interpretation is not 
altogether satisfactory. The provision before as is one dealing with imprisonment and fines, 
and a provision such as this must be interpreted strictly and not broadly. 
 
 No local or English authority dealing directly with a question similar to that before as 
was cited to as by the parties, and I too have been unable to find any such authority. I 
merely wish to point out that a submission similar to that made to us was argued more that 
a hundred years ago in the case of Wellesley v. the Duke of Beaufortt (6). The argument in 
that case, however and I think correctly so - was presented in the opposite form, that is to 
say, that where a person does an act contrary to an order of court which he cannot remedy, 
the punishment imposed upon him should be more severe. In the case of Re Newberg (7), 
the accused was sentenced for contempt of court although the order which he failed to 
obey was a civil order, and although it was not possible for him to carry out the order 
previously given at the time he was punished. Counsel for the accused in that case presented 
a submission similar to that make before us. The punishment is imposed, so he argued, so as 
to procure the doing of an act speedily which someone is obliged co do by law. The accused 
was in the meantime declared a bankrupt and was therefore unable to do what he had been 
ordered to do. Judgment was given against the accused on other grounds : he was a lawyer, 
and his actions amounted to deceit. The judgment in that case, therefore, cannot be 
regarded as a precedent in our case. It is merely interesting that in the course of argument 
Lord Denman C.J. asked in wonderment whether it was desired to argue that the accused 
could not fulfil the requirements imposed upon him when such action on his part was 
demanded of him because he had, by his own actions, put it out of his power to perform 
those requirements? In the case of In re Davis (3), it was mentioned by the court, obiter, 
that a person is punished for contempt of court for failure to obey an order of court 
although the act which constitutes the offence is not capable of being remedied. In any 
event, us I have said, although this question has arisen many times, I have found no decision CrimA 6/50 Levitt v. Angel 13
bearing directly upon it. It seems, however, that this argument would not be sufficient to 
secure the acquittal of the accused under English practice. 
 We are dealing with a statute which, although based upon the practice followed in 
England for generations, must be interpreted primarily according to the literal meaning of 
the language. It seems to me, therefore, that we must conclude from the language of section 
6(1) that the provisions of this section do not apply to the case before us. It seems to me 
that it is necessary to amend this section in such as way as to make it clear that a person 
who disobeys an order of court made at the conclusion of civil proceedings will be punished 
upon the application of the interested party in whose favour the order was given without 
resort to section 143 of the Criminal Code Ordinance, 1936. 
 
 It is also desirable to mention here that, according to English law, if a person 
undertakes in court to do or refrain from doing a particular act and the court, relying upon 
such an undertaking, confirms particular actions, breach of such an undertaking constitutes 
contempt of court. There is no similar situation in our law, and it would be desirable to 
remedy the omission. 
 
 I have doubts in regard to what was said by my colleague Olshan J., as to the scope of 
section 143 of the Criminal Code Ordinance. It is not clear to me whether a person who 
commits a breach of an order of prohibition issued by a civil court is guilty of a criminal act 
under that section. In the case mentioned above, Scott v. Scott (5), Lord Shaw said (at p. 
486) : 
"...the breach by a party of an order made against him or her in the 
course of a civil case is a perfectly familiar thing. Cases for breach of 
injunction are tried every day. But I have never yet heard that they were 
anything but subject to trial by the civil judges as in a civil cause or 
matter." 
 It is not necessary however to deal with this question now. CrimA 6/50 Levitt v. Angel 14
 It is my opinion, therefore, that the appeal should be allowed, and the judgment of the 
court below set aside. 
 
CHESHIN J. I concur in the opinion of my learned colleagues that the order (mistakenly 
called "the decision") of the District Court imposing a fine upon the appellant should be set 
aside. 
2. The sections in the Contempt of Court Ordinance dealing with the imposition of a fine or 
imprisonment are divided according to their nature into two groups. The first group - 
which includes sections 3, 4, 5, and 10 (which was repealed by the Criminal Code 
Ordinance, 1936) - refer to the past, while the second group - which includes only section 6 
- refers to the future. Each of the sections in the first group opens with an act done by a 
person, and concludes with the fine or imprisonment which is to be imposed upon that 
person for the act committed by him. The language of the sections themselves is as follows : 
"Section 3(1): "If any person wilfully obstructs... an officer of a court in 
the performance of his duty... is liable to be punished with a fine... or 
with imprisonment..." 
Section 4(1): "If, while any proceedings... are pending in any court, any 
person shall publish any writing... the High Court... may summon such 
person... to show cause why he should not be punished... by fine or 
imprisonment... " 
Section 5: "A witness who refuses to be examined according to lax... 
may be committed to prison by the court summarily... ". 
Section 10(1): "Any person who - 
 (a) ...uses words... 
 (b) publishes any invective... is liable to imprisonment...". 
 The position therefore is that the Ordinance in these sections defines acts, and lays 
down penalties in respect of these acts. Then, standing alone, is section 6 - in the second CrimA 6/50 Levitt v. Angel 15
group - which does not speak at all of acts but opens with a fine or imprisonment, and 
explains at once that the fine or imprisonment is not in respect of some act which was done 
or some omission, but that the purpose of the fine or imprisonment is to enforce obedience 
in the future to an order given by the court in the past. In this respect section 6 is irregular 
in the framework of the Contempt of Court Ordinance, and its object is utilitarian, for the 
purposes of a specific matter and not general and punitive. As against this section 143 of the 
Criminal Code Ordinance 1936 - which complements section 6 of the Contempt of Court 
Ordinance - should really, from the point of view of its content, be part of this latter 
Ordinance, for this section - 143 - also opens with an act : "every person who disobeys any 
order or warrant given by any Court..." and closes with a punishment "is liable ...to 
imprisonment." 
3. The learned judge in the District Court did not observe this distinction, and after relating 
the facts regarding the breach committed by the appellant, he adds : "in the face of open and 
impertinent contempt such as this there is no remedy but to impose a suitable punishment 
upon the first respondent (the appellant in the proceedings before us)". The learned judge, 
however, overlooked that section 6 does not provide a punishment for breach of the order, 
but empowers the court to impose a fine or imprisonment for the purpose of enforcing 
obedience to the order in the future. From this it follows that where it is clear that the order 
cannot be complied with in any event because there is no possibility of complying with it, 
section 6 does not apply at all since there would be no effect in such n case in imposing a 
fine or imprisonment. Let us assume, for example, that the court ordered a person to do a 
particular act, and that having failed to obey the order the person concerned was summoned 
to court to show cause why a fine or imprisonment should not be imposed upon him under 
section 6(1) of the Contempt of Court Ordinance. And let us assume further that during the 
period between the filing of the application and the date of the hearing he complied with the 
order and did what was required of him. Would the court be competent to impose upon him 
a five or imprisonment? It is clear that the answer is "no". In terms of section 6(1) a fine or 
imprisonment is imposed only "to enforce obedience to any order issued" by the court, but 
in the example which I have cited the order had already been complied with - albeit after 
some delay. From this point of view, a person who appears before the court and proves that 
he cannot comply with the order is in the same position as a person who complied with the 
order but did so after the date fixed for the compliance. In neither case will the imposition CrimA 6/50 Levitt v. Angel 16
of a fine or imprisonment enforce compliance with the order - in the first case because it has 
already been complied with, and in the second case because there is no possibility of its 
being complied with. 
4. And this is not all. The fines and periods of imprisonment mentioned in those sections 
which fall into the first group are the fines to be exacted for acts that have been committed. 
Such acts are onetime acts and the fine is to be paid but once. From this it follows that the 
act is a criminal offence, and the fine or imprisonment is punishment. As against this, the 
fine and imprisonment in section 6(1) are not intended as a fine to be exacted for an act 
which has been committed, but are a means of enforcing - by way of warning - the 
performance of an act. If one attempt to enforce compliance with the order has no effect, 
then he who disobeys must be compelled a second time, and a third time, and so on without 
end, until he does what is required of him. From this it follows that disobedience is not a 
criminal offence, and the fine or imprisonment is not a punishment. The learned judge 
therefore erred in his opinion that there is no alternative but to impose a suitable punishment 
upon the first respondent. 
5. I must confess, in conclusion, that I thought at first that it would perhaps be wise, after 
setting aside the order of the District Court, to return the case to that court to determine 
whether indeed the appellant is able to comply with the order of the court. It is difficult to 
ascertain from the facts what the position is, and the order of the learned judge is also not 
sufficiently clear. At one point in the order - after speaking of imposing a punishment - the 
learned judge says that "after the first respondent (the appellant) shall have served at least 
one third of the imprisonment... he shall be given the opportunity of applying to court for a 
reduction of the sentence, and the court will no doubt take into account his efforts to 
remedy the damage caused by him". This language suggests the possibility that the appellant 
will be able, with some effort, to comply with the order. But next to the sentence which I 
have quoted we find the following words : "It is possible that the appellant no longer has 
any direct control over those in possession of the room, and there is no necessity for this 
reason to compel him directly to enforce the order". It will be seen that these words indicate 
two possibilities. I thought, therefore, as I said, that it would perhaps be desirable to direct 
the court below to determine the position as it is and decide accordingly. I changed my 
mind, however, after considering the application of the respondent to the court below. It is CrimA 6/50 Levitt v. Angel 17
true that this application is headed by the words "Application under Section 6(1) of the 
Contempt of Court Ordinance", but in the body of the petition the court is asked ''to give an 
order for the imposition of a fine or imprisonment for failure to comply with the order given 
in Application . . . ". In other words, it is not compliance with the order in the future which 
concerns the respondent, but the failure to comply with the order in the past. The prayer in 
the petition, therefore, is for the imposition of a punishment for an offence. It is here that 
the mistake of the petitioner lies - a mistake which in the end led the court itself into error. 
The petition is based upon false premises, and should have been dismissed by the court at 
the beginning of the proceedings when counsel for the appellant addressed his preliminary 
arguments to the court. For this reason there is also no point in returning the case to the 
District Court. 
Appeal allowed and the decision of the lower court, 
in so far as it affects the appellant, set aside.
Judgment given on June 30, 1950.