ORIENTAL DAILY PUBLISHER LTD AND ANOTHER v. MA CHIU SING

CACV 304/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 304 OF 2008

(ON APPEAL FROM HCA NO. 606 OF 2008)

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REASONS FOR JUDGMENT

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Hon Tang VP:

Introduction

1.  The writ was issued on 11 April 2008.  The plaintiffs claimed damages for libel:

“... in respect of words contained in a banner erected by the Defendant in front of the Legislative Council Building and the High Court Building on 9 April 2008 and in leaflets distributed by the Defendant to members of the public on 9 April 2008 ...”

2.  The words complained of are:

“香港是否仍有法治？

冤獄！賄賂！買兇！

.... 豈料東方日報馬澄坤等馬氏家族並無將有關之投訴合法處理 .... 然彼等不單無以此途徑處理，竟公然揑做一封勒索伍佰萬之勒索信，誣陷本人，再由高級督察游乃強假扮東方日報主席助理，致電本人 .... 豈料游乃強竟被人收買，假稱双方對話並無錄音，再揑做假証供指本人刑事恐嚇 .... 而更甚者東方日報馬氏等人，竟於本年三月十五日早上本人冤獄期滿獲釋時，公然僱用兇徒於赤柱警署對面持棍襲擊本人 .... 東方日報馬氏公然無視法律三宗罪：

一.  插贓嫁禍

二.  收買高級督察游乃強揑做假證據

三.  藐視法紀公然僱人行兇。”  (“the Words”).

The literal translation of the Words pleaded in the statement of claim dated 11 June 2008 are:

(a)  "Is there still rule of law in Hong Kong? Frame-up imprisonment! Bribery! Contract killing!"

(b)  " ... To my astonishment, Oriental Daily News and Ma Ching Kwan (馬澄坤) and others of the Ma Family have not dealt with the relevant complaint by lawful means ... but instead not only have they failed to handle the incident by such means, they have gone so far as to fabricate a blackmail letter for 5 million to frame me up. Further, senior inspector Yau Nai Keung (游乃強) who pretended to be the assistant to the chairman of Oriental Daily News has called me up ... "

(c)  " ... To my astonishment, Yau Nai Keung (游乃強) was bribed and falsely alleged that the conversation between us was not recorded, and further fabricated false testimony alleging that I had committed acts of criminal intimidation ... "

(d)  "To my further astonishment, the Mas of Oriental Daily News even hired contract killer(s) to attack me with rod(s) opposite the Stanley Police Station on the morning of 15 March this year when I was released from my frame-up imprisonment..."

(e)  "The Mas of the Oriental Daily News committed 3 sins in open disregard of the law: 1: Imputing crime to some one else, 2: Bribing senior inspector Yau Nai Keung (游乃強) to fabricate false evidence, 3: Hiring someone to commit act(s) of violence openly in complete disregard of the law and discipline".

3.  The plaintiffs also claimed an injunction to restrain the defendant from further publishing or causing to be published the Words or any similar words defamatory of the plaintiffs, including without limitation by means of erecting banner and distributing leaflets in public places in Hong Kong.

4.  On the same day, the plaintiffs obtained an ex parte interim injunction against the defendant, restraining the defendant:

“... from publishing or causing to be published the words ... including without limitation by means of erecting banners and distributing leaflets in public places ...” (The ex parte injunction)

5.  The return day for the inter parte summons was 18 April 2008.

6.  On the return day, the injunction granted on 11 April 2008 was continued by Deputy Judge Gill (The inter partes injunction).

7.  Both injunctions had been served personally on the defendant.  Both orders included the notice to the defendant that:

“... if you disobey this Order you may be found guilty of contempt of Court and you may be sent to prison and/or fined and/or your assets may be seized.”

8.  By a notice of motion dated 25 April 2008, the plaintiffs sought to commit the defendant to prison for breaches of the ex parte injunction on 16 April 2008 (Wednesday) as follows:

(1)  displaying a banner in front of the Legislative Council Building between 10:30 a.m. and 12:30 p.m.;

(2)  displaying the said banner in the Statue Square in Central between 12:35 p.m. and 2:40 p.m.;

(3)  distributing leaflets containing the Words to an unnamed security guard of the Legislative Council Building at about 10:35 a.m.; and

(4)  distributing the leaflets containing the Words to ODN (Oriental Daily News)’s reporter, Ms Lo Chung Man (“Ms Lo”) in Statue Square at about 1:45 p.m.

9.  That notice of motion was followed by 3 further notices of motion which complained of breaches of the inter partes injunction.

10.  The 2^nd (Amended) notice of motion was filed on 7 May 2008 and concerned breaches of the defendant on 23 April 2008 (Wednesday) by, as Poon J said:

“(1)  displaying a plastic banner (‘the said Plastic Banner’) outside the Legislative Council Building between 10:00 a.m. and 11:25 a.m.; and

(2)  displaying the said Plastic Banner in the Statue Square between 11:45 a.m. and 12:35 p.m.

The contents of the said Plastic Banner was just the same as the Banner save and except that the references to the names of ODN, the 2^nd plaintiff, Ma Sik Chun, Ma Sik Yu, the Mas and the column ‘熱血維園’ were covered up by ‘XXX’ and some smaller printed words appeared between the heading, which read ‘毒販後人表面正當商人，左手傳媒公器右手黑社會，初一燒香拜神，初二入屋殺人，若敢公然揭露，先打人後禁制，問你怕未？’”

11.  This is what Poon J said about the 3^rd notice of motion and the 4^th notice of motion, dated 20 May 2008 and 18 July 2008 respectively:

“C.3. The 3^rd Notice of Motion

18.  The 3^rd Notice of Motion filed on 20 May 2008 concerns the breaches of the 2^nd Injunction the defendant committed on 7 May 2008 (Wednesday) :

(1)  by displaying the said Plastic Banner outside the Legislative Council Building between 9:35 a.m. and 10:30 a.m.; and

(2)  by displaying the said Plastic Banner outside the Statue Square between 11:35 a.m. and 2:10 p.m.

A cardboard on a plastic stand was placed next to the said Plastic Banner (‘the Cardboard’).  The Cardboard bore the words ‘網頁 : THE ORIENTAL DAILY AND THE MA FAMILY’.

C.4.The 4^th Notice of Motion

19.  Finally, the 4^th Notice of Motion filed on 18 July 2008 concerns the breaches of the 2^nd Injunction by the defendant on :

(1)  14 May 2008 (Wednesday), by :

(a)  displaying the said Plastic Banner and the Cardboard outside the Legislative Council Building between 10:10 a.m. and 11:05 a.m.;

(b)  displaying the said Plastic Banner and the Cardboard on East Point Road outside Sogo Department Store, Causeway Bay, between 12:40 p.m. and 3:10 p.m.; and

(c)  displaying the said Plastic Banner and the Cardboard outside a branch office of the Hong Kong Bank on Paterson Street, Causeway Bay between 3:20 p.m. and 4:00 p.m.;

(2)  28 May 2008 (Wednesday), by displaying the said Plastic Banner (with additional defamatory words of the plaintiffs) and the Cardboard outside a branch office of the Hongkong Bank on Paterson Street, Causeway Bay between 10:45 a.m. and 6:50 p.m.

(3)  4 June 2008, by wearing a blue T-shirt stuck with a piece of A3 size paper in the front which bore the words :

‘我姓馬，我老豆賣白粉，我係黑社會，又係報紙主席，邊個得罪我，我搵人插贜嫁禍再收買幹探亞游仔屈佢，然後再搵人打佢，打完佢佢敢出聲就告佢誹謗，法律，乜野嚟嫁？哈哈哈哈哈... ;’

and wearing on his face a DIY paper skull mask with the words ‘垃圾日報主席’ highlighted and shaded in black; and holding in his right hand a copy of ODN inside a transparent plastic bag with the front page bearing the name ’東方日報’ facing outwards :

(a)  between 11:17 a.m. to 11:19 a.m. outside the High Court Building;

(b)  at around 11:21 a.m. on an escalator leading from the ground floor level of the High Court Building to LG4 level of the High Court Building;

(c)  between 11:23 a.m. and 11:40 a.m. outside the entrance of the High Court Building at LG4; and

(d)  between 11:40 a.m. and 11:45 a.m. at the overhead bridge connecting Pacific Place and Queensway Plaza and at the Admiralty MTR station.

(4)  18 June 2008, by wearing on his face a white DIY facemask bearing the words ‘黑社會兼政協    垃圾日報主席’ and wearing a blue T-shirt with a piece of A3 size paper stuck in the front bearing the words :

‘我姓馬，我老豆賣白粉，我係黑社會，又係報紙主席，我做咗好多傷天害理嘅事包括指使人：殺霞姐(案件編號HCCC89/06三名被指使兇徒被判終身) 二：搵人用棍打亞聲仔(案件編號DCCC339/08兇徒被判四年半及二年) 三：最近我又搵人打蔡龍安(案件編號ESCC2855/08行兇者被判監四個月)打完佢哋邊個敢出聲就告佢誹謗，利用法庭判佢坐監，雖然我做埋咁多陰質嘢但係我重可以做埋政協，天理？哈哈......’

(a)  between 9:13 a.m. and 9:15 a.m. outside the front entrance of the High Court Building;

(b)  11:43 a.m. and 11:45 a.m. outside the front entrance of the High Court Building;

(c)  at around 11:48 a.m. when walking down from Pacific Place into Queensway Plaza;

(d)  between 11:53 a.m. and 12:30 p.m. outside the staff entrance of the Police Headquarters at Arsenal Street, Wanchai;

(e)  between 1:20 p.m. and 1:45 p.m. outside the staff entrance of the Police Headquarters; and

(f)  between 1:47 p.m. and 2:10 p.m. outside the report room of the Police Headquarters.”

Background

12.  As the learned judge said some background on certain criminal proceedings was necessary for the proper understanding of the plaintiffs’ complaints.  The learned judge said:

“A.  THE CRIMINAL PROCEEDINGS

2.  To set the plaintiffs’ complaints grounding the contempt proceedings in a proper context, it is necessary to go back to the two sets of criminal proceedings that the defendant faced earlier.

A.1.HCCC138/2002 and the subsequent appeals

3.  In September and October 2001, the defendant, signing himself as ‘香港拉登 (HK Bin Laden)’, sent identical letters to three widely circulated Chinese newspapers including ODN.  In those letters, the defendant indicated that he had put poison into certain food product in a supermarket and threatened that if the Chief Executive and top government officials had not resigned within a month, no further warning would be given before ‘the next poisoning action’.  This would target other more general locations, perhaps killing countless people.  Those letters, which enclosed a small sample of the poison he had used, ended with the threat that he was not to be underestimated or thought of as someone not having ‘enough guts’ to do this.  The letters continued, ‘... if my demand cannot be met, I guarantee that I will plan the HK version of 9/11...’.

4.  What the defendant did was, as the Court of Appeal later observed in his appeal against conviction and sentence in HKSAR v. Ma Chiu Sing [2004] 2 HKLRD 974, akin to a threat of terrorism.  Thanks to the responsible and efficient way that the matter was handled by the management of ODN, the defendant was swiftly arrested and brought to justice.

5.  On 13 December 2002, the defendant was convicted in the High Court of three counts of maliciously sending letters threatening to kill unnamed persons (‘section 15 offences’) and two counts of attempting unlawfully and maliciously to administer to or cause to be taken by an unknown person a noxious substance with intent to injure, aggrieve or annoy such person (‘section 23 offences’).  A total of 6 years and 8 months’ imprisonment was imposed.

6.  Upon the defendant’s appeal, the Court of Appeal quashed the conviction of the section 23 offences but dismissed his appeal against sentence on the section 15 offences.  The Court then substituted a sentence of 6 years and 8 months’ imprisonment on the section 15 offences.  Thus, the overall sentence imposed on the defendant remained unchanged.  He was subsequently released from jail in June 2006.

A.2.In the Eastern Magistracy

7.  On or about 19 July 2006, ODN received a letter from a person identified himself as the defendant, threatening to exhibit publicly certain banners if ODN did not publish an article he had written (‘the First Letter’).  On or about 22 July 2006, ODN received another letter written by that person, accusing ODN of ignoring the First Letter and demanding for HK$5 million (‘the Second Letter’).  In August 2006, ODN received further letters from that person again, enclosing photographs showing a banner exhibited at various public places which contained statements defamatory of ODN.  He threatened ODN thus : ‘我今次都預咗你會報吋，衰我都衰過，我仍有人會幫我搞死你，不過今次唔會咁易失拖......咪報吋，你應該知道我嘅能力’.  ODN then reported the matter to the police.

8.  On 31 August 2006, the defendant had a telephone conversation with Inspector Yau Lai Keung (‘Inspector Yau’) posed as Mr Kenneth Lai Kam Wa (‘Mr K Lai’), the personal assistant to the 2^nd plaintiff.  He made threats to Inspector Yau.  The defendant was then arrested on the same day.

9.  In June 2007, the defendant was tried before the magistrate in the Eastern Magistracy for two counts of criminal intimidation, which arose from the threats that he made in the First Letter and the telephone conversation with Inspector Yau.  At the trial, Inspector Yau gave evidence against him.  After trial, the magistrate convicted the defendant and sentenced him to 9 months’ imprisonment.  He was released on 15 March 2008.”

13.  To complete the picture, I should mention that the defendant alleged that upon his release from the Stanley Prison on 15 March 2008 he was attacked by a person with a wooden pole.  He alleged that the purpose of the attack was to break his knee-caps.  In support, the defendant produced a report in the Ming Pao of 16 October 2008 to the effect that one Mr. Yuk kin-man （玉健文）had been arrested and charged with a criminal conspiracy to cause the defendant grievous bodily harm with “BUI Van-thanh、TRAN Trong-manh（陳松文）及一名叫‘肥樂’的男子”.  The report gave ESCC 4864/2008 as a reference.  In that report it was also stated that earlier Bui and 陳松文had pleaded guilty and were sentenced to 4½ years and 2 years imprisonment respectively.  The defendant alleged that it was the 2^nd plaintiff who was behind the attack.  I must emphasise that that is merely an allegation.  I say no more about the defendant’s allegation since this is a question of fact which may have to be determined at trial.

14.  After hearing the learned judge found that:

“61.  ... the defendant did commit each of the breaches of the Injunctions as set out in each of the four Notices of Motion.  He is accordingly found in contempt of court as charged.”

15.  The learned judge described the defendant’s conduct in the following terms:

“66.  Here, the defendant repeatedly committed the breaches on no less than seven days within two months between April and June 2008, right after the court granted the 1^st and 2^nd Injunctions.  The breaches were not accidental.  The defendant committed them continuously, knowingly and wilfully in complete and flagrant disregard of the Injunctions.  His defiant attitude can be best demonstrated by the breaches that he made immediately after the court hearing on 4 June and before and after another court hearing on 18 June 2008 right at the entrance of the High Court building.  He was in fact reminded of the 2^nd Injunction by the court on 18 June 2008.  But he committed the breach right after the court hearing.  It is an affront to the due administration of justice.

67.  Further, the defendant’s breaches of the Injunctions not only perpetuated the defamation against the plaintiffs.  By displaying the banner outside the Legislative Council Building on Wednesdays when the Legco is in session, in the Statue Square in Central and in popular and crowded places in Causeway Bay during day time, the defendant plainly intended to arouse as much publicity as possible, with a view to inflicting the greatest possible harm to the plaintiffs’ reputation.  Such appalling conduct is reprehensible.”

16.  The learned judge then concluded:

“71.  Imprisonment is really in order.  Taking the matter in the round, I will treat the breaches committed on each of 16 April, 23 April, 7 May, 14 May, 28 May, 4 June and 18 June as a separate incident of breach.  Thus there are seven incidents of breach in total.  I will impose 6 weeks’ imprisonment for each of these seven incidents, to run consecutively.  Thus the overall sentence to be imposed is 42 weeks.”

The appeal

17.  This is the defendant’s appeal.  He complained that the total sentence of 42 weeks was too high.

18.  By the time the appeal was heard (18 February 2009) the defendant had served just over 5 months of his sentence.  At the end of the hearing of the appeal, we ordered that the defendant be released immediately and substituted a sentence which enabled him to be released immediately. 

19.  Mr Lawrence Ng, who appeared for the plaintiff together with Mr Christopher Chain, submitted that the sentence of 6 weeks for a breach of the injunction could not be said to be manifestly excessive.  Nor was it wrong in principle that the sentences were ordered to be served consecutively.  He accepted, however, that the court must have regard to the totality of the sentence.  He has referred us to the well known dictum of Mustill LJ (as he then was) in Re S & A Conversions Ltd [1988] 4 BCC 384 at 387 where he said, that in some cases:

“... it may be seen that to multiply an appropriate single sentence by the number of offences yields a total time to be served which is simply too long, having regard to the true wickedness of what the offender has done. In such an event, the sentencer must do his best to arrive at a suitable global figure, and then arrive at it either by reducing the individual sentences whilst keeping them consecutive, or making some or all of them take effect concurrently.”

20.  In support of his submission that the sentence of 6 weeks for a breach was appropriate, Mr Ng referred us to Citybase Property Management Ltd v. Kam Kyun Tak (No. 2) [2003] 2 HKC 108, where Ma J (as he then was) sentenced the 2^nd defendant in that case to 6 weeks’ imprisonment. 

21.  However, in Citybase the breach was described in the following terms:

“6.  ... The breach was, moreover, not an isolated one.  It was a continuing series of breaches in flagrant disregard of the order.”

22.  Ma J went on to say:

“6.  ... What is particularly aggravating about the breaches is that they not only created a nuisance for the other residents in that part of Locwood Court but also a potential danger.”

23.  So although:

“9.  Committal proceedings are of course a remedy of last resort and imprisonment even more so.  However, in cases of deliberate breaches of orders of the court, the public interest in the administration of justice must be taken into account.”

Ma J imposed a sentence of 6 weeks’ imprisonment.

24.  Mr Ng submitted that since in Citybase the court was concerned with one, a continuous (as opposed to an intermittent) act of disobedience, it does not support the view that 42 weeks for 7 breaches is too high when considered in totality.

25.  If Mr Ng is right, a higher total sentence would be justified for a person who breached an injunction one hour a week for 3 consecutive weeks than if he were to breach the same injunction continuously for 3 weeks.

26.  Mr Ng also referred to Re Saint Power Industrial LTD [2007] 4 HKLRD 862.  There S who was a company shareholder and director was found guilty of contempt of court by failing to comply with a court order for the production of certain documents.  It appeared that the order was obtained on 3 May 2006 and that between June 2006 and January 2007, the liquidators solicitors repeatedly reminded her that the time for the delivery of the documents had passed and that she must immediately obey the order or she would be guilty of contempt and be imprisoned.

27.  Notwithstanding such warnings, S failed to obey the order.  On 31 October 2007, she was sentenced by Kwan J to imprisonment for 6 weeks.  Kwan J suspended the operation of the sentence and ordered that provided that certain conditions were satisfied within 14 days, the sentence would not take effect.  So that was a case of continuous breach of an injunction over several months and there had been repeated warnings.

28.  Mr Ng also relied on Borough Council of Sandwell v Preece [2007] EWCA Civ 1009, unreported, 28 September 2007, a decision of the English Court of Appeal.  It concerned contempt of court for breaches of an interim anti-social behaviour injunction.  The anti-social behaviour included the defendant shouting “I’m going to kill them!” and swinging a crutch around.  On 29 March 2006, he was committed to prison for 28 days, suspended on conditions.  On 9 May 2006, the following order was made forbidding the appellant from:

“(i)  Engaging in or threatening to engage in conduct causing or likely to cause nuisance and annoyance to any resident, visitor, or person engaging in lawful activity in the locality of the property of 38 Beresford Crescent, West Bromwich, West Midlands as defined on the attached map.

(ii)  Assaulting or harassing [named persons whose names I need not include in the judgment] or any other person residing in, visiting or otherwise engaging in lawful activity within the locality of the property or anyway intimidating them, obstructing them, using or threatening to use violence, or being verbally abusive.

(iii)  Entering onto Beresford Crescent West Bromwich.”

29.  There were further breaches on 27 July 2006 and 16 August 2006, he was committed to prison for 16 weeks suspended on condition that he complied with the terms of the injunction.  Finally there was a breach of the order on 30 July 2007.  He was sentenced by the judge to nine months in prison, to be served consecutively to the 16 weeks which had been imposed earlier. 

30.  On appeal, Pill LJ said, with the concurrence of the other judges:

“[15]  There is no doubt that the Appellant has been persistent in his conduct and has breached the order many times. The main object of the committal was to deter him from doing so. I understand the approach of the judge - which leads to the activation of a suspended sentence and the imposition consecutively to it of a longer sentence - because there has been a further breach which, on the face of it, deserves a more serious punishment, as compared with the earlier breach. However, the court must have regard, as in the Criminal Division, to the totality of the sentence imposed. That totality must be appropriate to the current circumstances. The longest sentence served to date is that of twelve weeks' imprisonment, imposed on 15 January 2007, and the escalation to the present sentence is a substantial one. The judge makes no reference to the totality principle in his sentencing remarks.

[16]  In the present circumstances (which I have endeavoured to set out) a sentence of thirteen months' imprisonment was, in my judgment, too long and out of proportion, having regard to the mischief involved, which does not include violence, and the object sought to be achieved. I would substitute for it a total sentence of eight months’ imprisonment; that is an activation of the suspended sentence of four months and, in addition and consecutive to it, the same sentence of four months for the subsequent breach.”

31.  The facts in Preece are very different from the present case.  Moreover, for an injunction to protect against anti-social behaviour or molestation, a custodial sentence, and often a lengthy custodial sentence, is the only effective protection for the victim. 

32.  Two cases where substantial terms of imprisonments were imposed in Hong Kong should be mentioned.

33.  In Wong Yeung Ng v Secretary for Justice [1999] 2 HKLRD 293 the defendant who was the chief editor of Oriental Daily News was found guilty of two contempts.  The first contempt related to a 3-day, 24-hour paparazzi-type pursuit of Godfrey JA and subsequent reports.  The declared purpose of the pursuit was to “educate” Godfrey JA on the meaning of “paparazzi”, but the real purpose was to take revenge for one of his decisions and to punish the judge.  The other contempt related to scandalizing the court and related to 7 articles published by the newspaper which were described as deliberate vilification of the judiciary, written in intemperate and shocking language.  There the divisional court adopted a starting point of 8 months which was reduced to 4 months for various mitigating circumstances.  The contempts in Wong Yeung Ng were different in kind from the contempt in the present case.  They were described as of “unprecedented gravity” per Chan CJHC and Keith J in Secretary for Justice v Oriental Press Group Ltd and Ors [1998] 2 HKLRD 123 at 175.  Mr Ng submitted that Wong Yeung Ng was concerned with 2 contempts but here Poon J found that there were at least 7 breaches.  But the total sentence cannot depend on how the complainant chooses to slice and dice the offence.  In Wong Yeung Ng, the Secretary of Justice might have relied on each incident as a separate act of contempt.

34.  Another case is Secretary for Justice v Choy Bing Wing, HCMP 4694/2003, unreported, 25 October 2005 and 7 December 2005.  In that case, there was one contempt which consisted of written words in the contemnor’s affirmation and an abusive oral tirade against the judge during the hearing for which the contemnor was imprisoned for 6 months.

35.  The court, after taking into consideration various mitigating circumstances, decided to impose a sentence of 6 months’ imprisonment.  There was no appeal from that sentence.  With the greatest respect to the divisional court, I would not presume that an appeal from that sentence might not have succeeded.

36.  In this case, the total sentence of 42 weeks was manifestly excessive.  The defendant had been in custody for over 5 months.  We have ordered his immediate release.  Speaking for myself, I would not wish it to be thought that I regard a sentence of almost 5 months to be appropriate on the facts of this case. 

Hon Cheung JA:

37.  I agree.

Hon Yuen JA:

38.  I agree.