SECRETARY FOR JUSTICE v. WONG CHI FUNG

HCMP 585/2022

[2022] HKCFI 3522

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 585 OF 2022

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AND

HCMP 586/2022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 586 OF 2022

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HCMP 587/2022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 587 OF 2022

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HCMP 664/2022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 664 OF 2022

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(Heard together)

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D E C I S I O N

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A.  Introduction

1.  At some point, a line needs to be drawn under past events. However, when and where to draw the line is not always straightforward.

2.  Each of these four actions involves an ex parte application made by the Secretary for Justice (“SJ”) for leave to apply for committal against each of the putative respondents for their alleged contempt of court.

3.  Ordinarily, such applications would be dealt with on paper. However, for reasons which I will set out below – primarily relating to the timing of the applications by reference to the events constituting the alleged contempt – I was not prepared to grant leave on paper, and instead directed the applications to be made together at an oral hearing.

4.  That oral hearing was fixed for 21 November 2022, when Mr Martin Ho of Counsel appeared for the SJ. At the end of the hearing, I reserved my decision to be handed down later.

5.  This is my Decision.

B.  Relevant Background

6.  All four applications relate to alleged breaches of an injunction order granted by Chow J (as Chow JA then was) on 25 October 2019, as amended on 28 and 31 October 2019, as continued and varied by me on 8 November 2019 and amended on 11 December 2019 (“Police Doxxing Injunction”), made in an underlying civil action HCA 1957/2019.

7.  Three of the four actions also relate to alleged breaches of an anonymity order granted by the Principal Magistrate on 2 June 2020 (“Anonymity Order”), made in underlying criminal proceedings WKCC 1553/2020. The Anonymity Order was made to protect the interests of the public and a police officer (“PW1”) and his wife and two daughters, and it prohibited all persons from publishing or reporting any matters that may lead the public to identify PW1, his wife and two daughters. PW1 had been involved in an incident on 11 November 2019, when police were dispersing protesters causing serious traffic disruption in the Sai Wan Ho area. PW1 fired three live rounds, with one shot hitting a masked protester (“Sai Wan Ho Incident”).

8.  The allegations of contempt in the four actions are in broad summary as follows:

(1)  HCAL 585/2022:

(a)  The putative respondent is Wong Chi Fung (Joshua Wong).

(b)  During a cyber patrol by the Police on 16 August 2020, a post (“Post”) was found, which disclosed PW1’s full Chinese name and led the general public to be able to identify him as the officer involved in the Sai Wan Ho Incident.

(c)  The Post attached a LIHKG Thread that disclosed four photos of PW1, his spouse and family members (namely his two daughters). One of the photos was a digitally edited photo of PW1 of his two daughters with knives on each of them and the caption “我地老豆係殺人犯:)” (English translation: “Our father is a murderer”).

(d)  The LIHKG Thread also contained a pinned message that identified PW1, with embedded links to webpages containing personal information of PW1, his spouse and his family members.

(e)  One link was to ‘Hong Kong Chronicles’ (a prominent Police doxxing website) “profile” of PW1, which itself disclosed various personal data of PW1, his spouse and family members, as well as the reference to the criminal proceedings in WKCC 1533/2020, in which the Anonymity Order was made.

(f)  On 17 August 2020, a news article reported that the putative respondent had disclosed PW1’s personal data on his Facebook page in breach of the Anonymity Order and the Police Doxxing Injunction.

(g)  Upon Police’s checking on 17 August 2020 at around 11am, the Post was found to have been deleted.

(h)  Notwithstanding being relatively short lived, the Post attracted wide attention with 4,900 counts of reaction, 186 comments and 376 shares.

(i)  Further, the LIHKG Thread attached to the Post was also commented by 2,054 members. Specifically, it was observed that there were several comments inciting others to sexually harass PW1’s two daughters.

(j)  The Police had identified the putative respondent as the maker of the Post by 17 August 2020.

(2)  HCAL 586/2022:

(a)  The putative respondent is Tsang Chi Sing.

(b)  During a cyber patrol by the Police on 17 June 2020, three posts (together “Posts”) were found, which appeared to be in breach of the Anonymity Order and the Police Doxxing Injunction.

(c)  Post 1 published at 18:55 on 2 June 2020 was captioned “仆街冚家剷死全家！” (English translation: “bastard, the one whose whole family died, your family will all die”) sharing a cropped image of a news article concerning PW1, the title of which in effect identified him and the location of his two daughters’ school.

(d)  Post 2 published at 20:59 on 2 June 2020 was captioned “唔比開名？” (English translation: “not allowed to disclose name?”), with three images showing: (i) PW1 plus his Chinese name; (ii) a document concerning the internal affairs of PW1’s daughters’ school and displaying a photo of PW1 and his personal information; and (iii) a digitally edited photo of PW1 and his two daughters who are each holding a knife with the words describing their father as a murderer.

(e)  Post 3 published at 08:06 on 3 June 2020 was captioned “晨早流流，同條仆街冚家剷打聲招呼先！條仆街冚家剷啲電話電郵地址會唔會已經改Ｘ哂呢……橫掂佢人都可以唔做而改做禽獸，真係改乜都得啦！” (English translation: “it is early in the morning, let me greet the bastard, the one whose whole family die. [I wonder] whether the telephone [number(s)] and email address(es) of the bastard, the one whose whole family die, have all been fxxking changed … anyway, if you can change to be a beast instead of human being, he can change whatever he wants!”.

(f)  There was also an earlier Facebook post making reference to a news article clearly reporting that the Court had made the Anonymity Order.

(g)  The putative respondent was arrested on 24 June 2020 for the offence of “Contempt of Court”.

(h)  Later the same day, 24 June 2020, the putative respondent was interviewed by Police under caution, and he admitted (amongst other things) that: (i) he was the one who made the Posts; (ii) he thought the Anonymity Order was unreasonable and he made the Posts out of grievance towards it; (iii) he published information in relation to PW1 with his mobile phone on 2 and 3 June 2020; (iv) the personal data and photos of PWI and that he published in the Posts were obtained from a Google search; (v) he had knowledge from news reports of both the Anonymity Order and the Police Doxxing Injunction.

(i)  On 22 July 2020, the DOJ wrote to the putative respondent, pointing out that the Post were on their face in breach of the Anonymity Order and the Police Doxxing Order, and requesting removal of the Post within three days and documentary proof to confirm it.

(j)  On 8 August 2020, the putative respondent wrote to the DOJ stating that he had deleted the Facebook account in early July, and he subsequently wrote on 10 August 2020 to confirm that the account was scheduled to be deleted permanently.

(3)  HCAL 587/2022:

(a)  The putative respondent is Lee Pak Nap (Bernard Lee).

(b)  During a cyber patrol by the Police on 17 June 2020, a post (“Post”) was found published at 19:43 on 2 June 2020 captioned (in English translation) “no one knows your name is [PW1’s full Chinese name]”. The Post also shared a news article referencing the grant of the Anonymity Order.

(c)  The putative respondent was arrested on 24 June 2020 for the offence of “Contempt of Court”.

(d)  Later on the same day, 24 June 2020, the putative respondent was interviewed under caution and admitted (amongst other things) that: (i) he was the sole user of the relevant Facebook account and the only person you the login password; (ii) he forwarded the news report from website of the paper to his Facebook page, with his mobile phone and added the caption; (iii) he did so with the intention to remind the public of the Sai Wan Ho Incident; and (iv) he understood from the title of the news report that PW1 was granted the Anonymity Order when he made the Post.

(4)  HCAL 664/2022:

(a)  The putative respondent is Wong Kwok Leung (Eric Wong).

(b)  A doxxing post (“Post”) was found published on Facebook at 12:41 on 11 November 2019, which stated “唔好傳！千祈唔好傳！” (English translation: “Do not spread around! Definitely do not spread around!”) and which disclosed the personal data of: (i) the full name of PW1 in Chinese characters, his force number, residential address and link to his personal Facebook profile; (ii) the mobile number of PW1’s wife; and (iii) the name, mobile number, Instagram account, school, class of PW1’s elder daughter and a link to her Facebook profile.

(c)  Subsequent investigation identified the Posters having been posted on the putative respondent’s Facebook page.

(d)  The putative respondent was arrested on 9 January 2020 for the offence of “disclosing personal data without consent from data users”.

(e)  Later on the same day, 9 January 2020, the putative respondent was interviewed under caution and admitted (amongst other things) that: (i) he was the only user of the Facebook account “Eric Wong” and the only person who knew its password; (ii) upon being shown the Post, he said he forgot whether or not he had posted it; (iii) upon being shown the Police Doxxing Order, he said he understood it.

(f)  Further forensic examination found six other photos of PWI and his two daughters in the photo album in the putative respondent’s phone, created at about 14:29 on 11 November 2019.

9.  From the above, it can be seen that the Police had concluded the bulk, if not the entirety, of the relevant investigations as revealed the facts now relied upon in support of the current applications:

(1)  in HCAL 585/2022, by 17 August 2020;

(2)  in HCAL 586/2022, by 22 July 2020;

(3)  in HCAL 587/2022, by 24 June 2020; and

(4)  in HCAL 664/2022, by 9 January 2020.

10.  As is obvious from the action numbers, three of the four applications are numbered consecutively – HCAL 585/2022, HCAL 586/2022 and HCAL 587/2022 – with all three of them having been dated 11 May 2022 but issued on 13 May 2022. The fourth action – HCAL 664/2022 – was issued on 25 May 2022. Therefore, the time from the above dates when the facts now relied upon had probably been established until the making of the ex parte application seeking leave to apply for committal is:

(1)  in HCAL 585/2022, approximately 20 months;

(2)  in HCAL 586/2022, approximately 21 months;

(3)  in HCAL 587/2022, approximately 22 months; and

(4)  in HCAL 664/2022, approximately 28 months.

11.  It may also be relevant to note that in three prior decisions given by me on 18 January 2022 [2022] HKCFI 227, 14 April 2022 [2022] HKCFI 1015 and 27 April 2022 [2022] HKCFI 191, I expressed and repeated real concerns about the long periods of delay in bringing the relevant breaches of Court orders to the attention of the Court in the delayed making of applications for committal for contempt of court.

12.  It can be noted that three of the ex parte applications in the current proceedings were all suddenly made within about two weeks, and the fourth within one month, of that last decision and expression of concern.

C.  Principles on Grant of Leave

13.  The leave requirement operates as a filtering mechanism, to filter out intended committal applications which are obviously unfounded or oppressive. When disposing of a leave application, the Court retains an overall discretion in deciding whether or not a committal application is appropriate on the facts of the case. This is not least because, in view of the potential penal consequences, committal proceedings should only be deployed as a last resort: see, for example, SJ v Cheung Kai Yin (No.2) [2016] 5 HKLRD 370 at §§12-13

14.  The question arises as to how any delay in bringing intended committal proceedings factors, if at all, into the decision whether or not to grant leave.

15.  Mr Ho acknowledged the remarks made by me in the previous cases, to which I have already made reference above. For example, in SJ v Sung Ho Tak Edward [2022] HKCFI 227, at §§ 27-30, I said:

27.  I recognise that some time might be needed, and that there may have been some manpower and resources issues. However, by late November 2019, the investigating authorities were in possession of all relevant information identifying the contempt of the Incitement Injunction, the very making of which was predicated on the need urgently to prevent further or continuing incitement of violence online. Indeed, it is the SJ’s case at this hearing – which I accept – that there is a correlation between the calls for violence and vandalism made online and the subsequent acts of violence and vandalism which ensued. Within three months or so after the now admitted breach, the investigating authorities were able to decide not to pursue the matter further, at least in the criminal courts. I am afraid I still do not understand why it would take so much longer to decide whether or not to pursue committal proceedings, and if so to make the application. Where the breach of the Incitement Injunction is rightly said to be a serious matter, it is more than just disappointing that the breach was not sought to be brought back to this Court until almost 2 years after the date of the breach.

28.  By nearly 2 years after the date of the breach, committed in the midst of the deep social unrest, that social unrest had largely calmed down. Of course, I do not say that it is improper to bring these contempt proceedings (or else I would not have granted leave). But it might be said that pursuing the contempt so long after the event, well after the fraught social situation at the time of the Incitement Injunction has calmed down, risks unhelpfully raking over the embers.

29.  Further, I think the Court is entitled to expect actions which are said to be clear breaches of Court orders to be brought to the attention of the Court within a fairly short time, if the matter is to be pursued at all. Court orders are not advisory; they mandate what must be done or not done. In a case such as the present, the Court itself is unlikely to be aware of any specific details of breaches of the Court’s order. The Court relies on one of the parties to the proceedings – here the SJ, who sought and obtained the injunction – to bring the matter to the attention of the Court timeously, so that the Court is in a position to enforce its order through contempt proceedings and orders for committal if necessary.

30.  Significant delay is almost bound to frustrate the Court’s ability properly to police its own orders. The value of late steps may well be less than the value of steps taken timeously. Enforcement steps which are considered to be necessary, appropriate and proportionate if taken within weeks or months of the breach of the order may no longer be considered either necessary or appropriate or proportionate if only pursued years later.

16.  I stand by the points I made in that context, and which are at least potentially applicable to the present situation.

17.  But Mr Ho also pointed to Note 52/2/5 in the Hong Kong Civil Procedure 2023, which states:

Delay – There is no time limit for the application for leave to be made but it should be made promptly (see Taylor v Ribby Hall Leisure Ltd [1998] 1 WLR 400, CA, esp. at 410). An unjustifiable or oppressive delay may have an impact on the leave application (Secretary for Justice v Siew Yun Long (HCA MP 2917/2015, 6 May 2016) at para. 18, per Chow J.) The respondent may take a delay point on an inter partes application under O.32, r.6 (see above) or an application under the inherent jurisdiction to strike out the contempt proceedings as an abuse of the process (as in Taylor v Ribby Hall Leisure Ltd (above)). But in general it is preferable to deal with the point at the substantive hearing (ibid.).

18.  Mr Ho submitted that two matters arise from that passage:

(1)  First, in order for the Court to strike out a committal proceeding on the ground of delay, it must be shown that the continued prosecution of the application would constitute an abuse of process, namely that it is no longer possible to have a fair trial because of unjustifiable delay in the commencement of contempt proceedings: referring to the Taylor case at 408A-G.

(2)  Second, given the fact-sensitive nature of the inquiry in determining whether there is an abuse of process and/or whether a fair trial is still possible, the appropriate occasion to determine the relevance and significance of delay should be at the substantive hearing (at which the Court can hear from the putative respondents as to their stance and any evidence put forward).

19.  The passage in Taylor at 408 seems to me to identify that the overriding power of the Court should be used to protect the integrity of its own processes. Obviously, it is an important part of the protection of the integrity of its process that those in contempt of court by breaching court orders should be held to account. But another part of the protection of the integrity of the process is to protect against the use of the process in a way which is unfair to a party to the proceedings.

20.  I accept that the inability to have a fair trial because of unjustifiable delay may, in exceptional circumstances, be one situation where the power to stop the case would be exercised. It may even be correct to say that the power would be very sparingly exercised. But it is not the only situation when the power might or would be exercised.

21.  In my view, if the Court takes the view that its process is being used in a way which threatens its integrity, the Court is entitled to take steps to protect that integrity – and those steps are not limited only to the situation where a fair trial is no longer possible. The Courts are the guardian of proper process. The Courts are independent, must continue to be independent, and must continue to be seen as independent.

22.  In this context, reference can also be made to the case of Tiong King Sing v Sam Boon Peng Yee (No.2) [2015] 3 HKLRD 99 at §§6 and 19, which emphasised that the filtering process on the grant or refusal of leave can arise when there is either (a) oppression or (b) suspicion of oppression. It is to be noted that the suspicion of oppression may suffice for the refusal of leave to apply for committal. For example, though the phrase was also repeated at §19, at §6 the Court stated (quotation in original):

The ex parte stage is a filtering process which filters out oppressive applications, or applications which have “some suspicion of oppression”, or those which obviously have no chance of success.

23.  Further, in Hwang Joon Sang v Golden Electronics Inc (No.3) [2021] HKLRD 301, at §11(5)(b), I noted that a significant period of delay in bringing proceedings for contempt may make it oppressive to grant leave.

D.  Reason for Delay

24.  In his written submissions, Mr Ho remarked that “the SJ acknowledges that these intended committal applications could have been brought earlier”. I suspect that many people would think the words “could have been brought earlier” to be a striking euphemism.

25.  Further, it was obvious that the Court’s concern giving rise to refusal to deal with these applications on paper, and instead calling for an oral hearing, related to the question of delay. As a result, Mr Ho used more than half of his 16-page skeleton submissions to address the impact of delay.

26.  Notwithstanding that, the submissions were essentially by reference to legal authorities – and to the suggestion that the Court should accord appropriate recognition and weight to the SJ’s views and assessment on the societal need for deterrence (a point to which I will return).

27.  However, the only factual matter dealt with as might in any way be thought as an offered explanation for the significant delay is to be found in a footnote to the euphemistic acknowledgement (see above). That footnote merely reads as follows:

The Court would also appreciate the sheer number of matters DOJ had to attend to in the past 2 years. Unfortunate as it may be, we wish to re-assure the Court that only the individual merits of each committal application were taken into account in deciding to launch these applications for leave for committal.

28.  As a factual explanation for the significant delay, it is at best underwhelming. The first sentence in essence says merely that the DOJ has been busy, but it does not provide any relevant detail nor attempt to explain why it took approaching two years to bring forward even any one of the individual four cases now being considered. The second sentence does not explain the delay at all.

29.  What the second sentence instead appears designed to achieve is to ‘head off’ some other potential concern. I raised one such concern ‘head on’ with Mr Ho at the hearing, namely any perception that these potential committal proceedings might have been ‘sat on’ – or even ‘warehoused’ – ready to be brought forward later, if at some time it was thought appropriate to bring proceedings against the particular individuals concerned. The answer to such a concern is not to be found in a statement that only the merits were taken into account in deciding to launch the committal proceedings, as that simply does not address why those merits did not lead to the much earlier launch of the committal proceedings. It seems to me that once sufficient merit has been identified, the proceedings should be launched – without delay.

30.  Indeed, the more Mr Ho sought to emphasise his main points as to why, notwithstanding the significant delay, leave for committal proceedings should be granted, the more the possible perception and consequent concern seemed to be highlighted.

31.  Mr Ho first submitted that the individual merits of each intended application are strong, if not overwhelming. Elsewhere in his written submissions, Mr Ho submitted that there is “overwhelming evidence against the putative respondents (some of which having openly acknowledged that they are intentionally flouting court orders)”. But, assuming that is the SJ’s view, it might be asked why such strong applications were not brought to the Court with reasonable speed. It is the SJ’s case that this was clear, deliberate and intentional flouting of the court orders. Indeed, at least some of the putative respondents to these four applications are known individuals who sought to carry significant influence in their expressions of views, and who sought to create a tide of opinion. It might be thought that the DOJ’s resources would obviously be directed at bringing such strong applications to the fore, rather than focusing on applications relating to others who were swept up in that tide.

32.  Mr Ho also submitted that the SJ, in his capacity as the protector of public interest, is of the clear view that there remains a strong public interest in pursuing these committal applications and to send a clear deterrent signal to society. But surely the most important time for sending any such clear message was much closer to the events for which a deterrent signal was required, and for which it might be most effective.

33.  Mr Ho also submitted that contempt of civil court orders is a serious matter, where the consideration of the normal penalty for breaches of the Police Doxxing Injunction is imprisonment, perhaps measured in months. He submitted that refusing to grant leave notwithstanding that there is a prima facie case may send the wrong message to the public that such conduct can be condoned without legal consequence, and is unfair. But, on the other hand, it seems to me that the SJ’s failure to seek, or significant delay in seeking, leave notwithstanding that there is a prima facie case – indeed, it is said an overwhelming case – may send the wrong message to the public.

34.  Mr Ho also submitted that the Court should adopt a consistent approach in dealing with delay, referring to the previous cases in which the matter of delay was reflected in sentencing (rather than being used as a basis for the Court to exercise its discretion to refuse leave). I see the force in the need for consistency in approach, but the submission risks overlooking the fact that time has continued to move on, and that at some point a line needs to be drawn.

35.  Mr Ho also submitted that, while the delay is unfortunate, the applications cannot be regarded as “oppressive” to the putative respondents. He said that the applications hardly constitute an abuse of the Court process, and there is no suggestion that any of the putative respondents are hampered in their efforts to defend these proceedings by reason of the lapse of time. But, it seems to me that if applications are not brought forward with appropriate expedition, that might constitute an abuse. Further, it is at this stage simply unknown whether any of the putative respondents are hampered in their efforts to defend these proceedings by reason of the lapse of time. In any event, even if there is no hampering in the sense of being unable to obtain relevant materials and so forth, that does not necessarily mean that there is no oppression which arises from the timing.

36.  The significant delay in these cases is also exacerbated by the fact that it is generally recognised that committal proceedings in the civil justice system require less extensive preparation, and are less protracted than, proceedings in the criminal justice system. That is why applications for committal can reasonably be expected to be, and should be, issued promptly after the alleged breach, and the cases listed without delay: see, for example, Lomas v Parle [2004] 1 WLR 1642 at §49; and the Taylor case at 410.

37.  I am also not persuaded that the Courts are in any significantly weaker position than the SJ to assess various facets of the public interest. I acknowledge, of course, that the SJ is acting in his capacity as the guardian of the public interest in both seeking the underlying injunctive relief and pursuing committal applications against contempt laws who have breached the injunction is granted. But the injunctions were granted, and any penalties are imposed on contemnors, by the Courts’ recognition of and application of those facets of the public interest relevant to the situation.

E.  Result

38.  In the light of the significant and almost wholly unexplained delay, I have carefully considered whether this is an occasion when leave to apply for committal should be refused. The concerns arising from the delay, and any perception also arising, are real. But, ultimately, I am persuaded that leave should be granted.

39.  I accept that on the materials so far available to the Court, it could not be said that there is no prospect of the Court granting relief to the SJ at the substantive hearing. Nor could it be said that the delay itself will necessarily cause such prejudice to the putative respondents as should lead the Court to exercise its power to refuse leave for committal. The proper impact of the delay in these individual cases can, I think, be addressed appropriately on the substantive hearing.

40.  I also take into account that the alleged breaches in these four applications, if admitted or proved, can properly be regarded as serious, and well within the category of breaches that the Courts would wish to ensure do not go unnoticed.

41.  In conclusion, I grant leave to apply for committal in each of the four cases, and the accompanying directions including the anonymity orders sought.

42.  All questions of costs are reserved.

43.  I would only add that the grant of leave in these cases is not intended to suggest that leave would certainly be granted in other cases where there has been significant delay, or be taken to suggest that the time has not come for the line to be drawn.