SECRETARY FOR JUSTICE v. YEUNG HIN WUN

HCMP 674/2022

[2023] HKCFI 1029

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 674 OF 2022

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REASONS FOR DECISION

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A.  Introduction

1.  These contempt of court proceedings were brought with leave for committal granted by Wilson Chan J on 13 June 2022.

2.  The conduct of the Defendant giving rise to the proceedings was that he acted in breach of an injunction order made by this Court on 8 November 2019, last amended on 11 December 2019, in HCA 1957/2019, which order enjoined doxxing activities against police officers and their family members (“Police Doxxing Injunction”).

3.  Having been served with the court documents, the Defendant indicated in his acknowledgement of service filed and served on 22 September 2022 that he did not intend to contest liability.  Directions were then given to bring the matter to a hearing for mitigation and sentencing, fixed for 18 April 2023.

4.  At the hearing, the Plaintiff (“SJ”) was represented by Mr Martin Ho of Counsel.  The Defendant was represented by Mr Dick CM Wong of Counsel. 

5.  At the end of the hearing, I imposed the penalty of 2 months’ imprisonment, suspended for 12 months.  I also ordered the Defendant to pay a contribution of HK$80,000 to the SJ’s costs.

6.  I said I would give my reasons for that decision later.  These are my Reasons for Decision.

B.  Facts of the Contempt

7.  The parties helpfully provided an agreed statement of facts.  I can set out below such of the facts as are necessary for a proper understanding of this case.

8.  The terms of the Police Doxxing Injunction have been set out by me in numerous previous decisions.  Suffice it to say that it was an order made in HCA 1957/2019 to restrain persons from doing any of the following acts:

(1)  using, publishing, communicating or disclosing without consent to any other person the personal data, intended or likely to intimidate, molest, harass, threaten, pester or interfere with any police officers or their family members;

(2)  intimidating, molesting, harassing, threatening, pestering or interfering with any police officers and their family members; and

(3)  assisting, causing, counselling, procuring, instigating, inciting, aiding, abetting or authorising others to commit any of the above acts or participate in any of the above acts.

9.  The making of the Police Doxxing Injunction was widely reported in the local media.  Further, service of it was affected by way of substituted service by publishing copies of it on the webpages of the Police as well as that of the Government of the HKSAR.

10.  The Defendant’s contempt of court occurred on 7 June 2020, in the course of the wedding ceremony of a police officer, referred to in the documents as “PW1”.

11.  At around 5pm on 7 June 2020, when the couple were still at the wedding venue (“Venue”), they were alerted by a friend that a post (“Post”) containing photos of them taking during the ceremony was posted in LIHKG.  In particular:

(1)  The Post was published at 3.16pm on the same day.

(2)  The Post was headed “今日我老死結婚　一齊祝福佢” (translated as “It’s my buddy’s wedding today.  Let’s give them a blessing”) and reads “2020-6-7　結婚　大好青年 立此存照 今日我大義滅親” (translated as “Wedding on 2020-6-7.  A promising youngster.  For the record.  Today I place righteousness above family loyalty.”).

(3)  The Post contained a screenshot of an extract from an online news report entitled “銅鑼灣放火暴徒 網友肉搜竟是飛虎隊假扮的” (translated as “The rioters who set fire in Causeway Bay [are exposed by netizens as] undercover SDU officers”) with a photo purporting to show a police officer masquerading as a protester.

(4)  The Post also contained a screenshot of PW1’s profile on a website known as “Hong Kong Chronicles” showing PW1’s Chinese name, English name, UID, phone number, HKID card number, school, and his Facebook account.

(5)  At 3.22pm, the original poster left a comment under the Post enclosing a hyperlink to PW1’s personal profile on Hong Kong Chronicles.

(6)  At 3.27pm, the original poster disclosed the location of the wedding Venue (by reference to the name of the mall in Tsim Sha Tsui) by leaving a comment under the Post.

(7)  At 3.30pm, the original poster posted a photo taken at the wedding Venue, showing PW1 and his wife, by way of leaving a comment under the Post.

12.  The Post attracted 24 replies in half an hour, with numerous distasteful and despicable comments directed at PW1 and/or his wife, and even their relatives attending the wedding.

13.  In fear of their personal safety, the couple and their relatives and friends had to pack their belongings and to leave the Venue in a hurry.

14.  The couple reported to the police on 11 June 2020. Subsequently, investigation pointed to the Defendant as being the person making the Post.

15.  The Defendant was arrested on 16 September 2020. Upon being cautioned, he immediately confessed to having made the Post, and provided access to his phone, iPad and laptop to the Police without a search warrant.

16.  Further information was revealed in a video recorded interview conducted later on the same day and from the Defendant’s phone the access of which was provided to the Police:

(1)  The Defendant was recruited by a Mr Lo who was the photographer for the wedding event engaged by the couple.  The Defendant was to serve as a photography assistant at the ceremony.

(2)  In the course of the wedding ceremony, the Defendant suspected that the groom was the police officer who was previously reported to have masqueraded as a protester.

(3)  He confirmed his suspicions by searching in Hong Kong Chronicles and then made the Post by putting together information he found online as well as the photos he taken at the ceremony, using one of his LIHKG accounts.

(4)  At around 5 to 6pm on the same day, the Defendant requested LIHKG to remove his Post.  He did so because he realized that the comments to his Post were rather provoking and negative and may affect other people.

17.  The Post was apparently removed the next day and is now non-searchable.

18.  The Defendant was arrested.

C.  Effect of the Doxxing

19.  In his evidence, PW1 said that since he got involved in handling public order events, he had fallen victim to doxxing activities from around August 2019, as reflected in the Hong Kong Chronicles articles and the news report as reposted in the Post.  He and his family had been subjected to severe nuisance, harassment intimidation, threat and immense stress.

20.  The couple chose the Venue partly because of the privacy and security he thought would be afforded to them and their guests. But eventually his wedding day was still ruined by the Post.  They had no choice but to leave the Venue as soon as possible.

21.  Since he was doxxed in August 2019, he had tried not to disclose his occupation and has stopped using social media all together, in fear of the potential harassment that might fall on him and his family.

22.  The couple confirmed that they had never authorized the Defendant to make such disclosure of their personal data.

D.  Sentencing Principles

23.  In a number of previous decisions, I have set out the sentencing principles for breaches of the Police Doxxing Injunction: see, for example SJ v Chan Oi Yau Riyo [2020] 3 HKLRD 494 at §§54-63; SJ v Cheng Lai King [2020] 5 HKLRD 356 at §§64-72; and SJ v Chan Kin Chung [2021] 1 HKLRD 563 at §§38-45.

24.  A brief summary of these principles can be repeated as follows:

(1)  The prime consideration in sentencing is to demonstrate to litigants that orders of the court are to be obeyed.  Contempt of court orders is a serious matter.

(2)  The imposition of the penalty requires a balance between (a) the strong public interest in ensuring that orders of court will not be flouted and (b) the evaluation of the individual circumstances of each case.

(3)  Subject to mitigating factors, if any, the starting and primary penalty for contempt of court in breaching an order in the nature of an injunction is an immediate custodial sentence, and one perhaps measured in months.

(4)  Nevertheless, imprisonment is ordinarily regarded as a sanction of last resort, and any custodial term should be as short as possible and consistent with the circumstances of the case.

(5)  In typical civil proceedings, the party in contempt may be punished through procedural steps within the action, if the contempt is not purged.  However, the nature of the Police Doxxing Injunction and the breach of it are not exactly analogous (though the preference can be noted to avoid a sentence of imprisonment of other means of sanction would appear to be sufficient and proportionate).

(6)  A consideration of the particular circumstances will require regard to both aggravating factors and mitigating factors, including whether any prejudice suffered by the plaintiff, whether the prejudice is capable of being remedied, whether the contemnor has cooperated and purged the contempt, as well as the personal circumstances of the contemnor.

(7)  The facility afforded by the internet and social media to broadcast and publish material widely makes breaches involving such actions worse rather than less serious.

(8)  The fact that the person in contempt is in a position of influence and is a person to whom others may look as an example is an aggravating factor.

25.  I also repeat the point made that rights and freedoms do not exist in a vacuum.  They come with responsibilities.  Any person claiming to exercise their own rights and freedoms must simultaneously have respect for the rights and freedoms of others.  In order to do that, the person must apply his or her mind to affording that respect.

26.  There can be no doubt, therefore, that the facts of this case showed the appropriate starting point for the Defendant’s contempt was a penalty of an immediate custodial sentence, perhaps measured in months.

27.  It was also relevant to consider the impact of delay on the appropriate sentence to be passed.  This was a topic explored by me in SJ v Wong Chi Fung [2023] HKCFI 1023 at §§47-61.  I will return to the impact of the delay, in my reasons below.

E.  SJ’s Comments on Appropriate Sentence

28.  In his submissions, Mr Ho highlighted the following as would warrant the imposing of an immediate custodial sentence:

(1)  This case involved a breach of trust which he said would generally justify the imposition of an immediate imprisonment term, save in very exception circumstances.  He said PW1 deliberately choose a venue with a high degree of privacy and the Defendant was only allowed into the Venue because of the trust PW1 reposed in him as a member of the photography team. Mr Ho likened the situation to sentencing for theft or fraud cases in which the offender was found to have abused his privileged and trusted position.

(2)  Unlike many of the other contempt of court cases, the Defendant did not merely repose contents created by other people. The Defendant was actually the person who initiated the doxing against PW1 by creating the Post and uploading photos taken by himself at the very wedding ceremony.  The Post led to abusive discussions by netizens suggesting or implying PW1’s wife would possibly be gang-raped.

(3)  The harm done to the PW1 and his wife is irremediable.  The Post ruined their once in a life time wedding day.

(4)  The Defendant could not point to the fact that the Post was short-lived.  By the very nature of the social and internet, once personal data is disclosed, that personal data will almost certainly forever remain publicly available even if the original point of disclosure is subsequently removed.

(5)  The Court should send a clear message that such conduct is not to be tolerated in a civilized society.

F.  Defendant’s Evidence and Mitigation

29.  In his affirmation, the Defendant expressed his remorse for committing the breach, which he described as a mistake he regretted very much.  He offered his apology to PW1, his wife and their family, as well as to the Court.  He said he had reflected on himself and vowed to be an honest and righteous citizen in the future.

30.  He sought to explain his personal and family background.

31.  The Defendant was born in 1995.  He was 25 years’ old in 2020 and 27 by the time of the hearing.  He graduated from Secondary 6 in 2013 and had since pursued various educational courses or programmes related to photography and creative media offered by different institutions.  In 2020, he graduated with a Bachelor of Fine Arts in Cinematic Design and Photographic Digital Art from the Open University of Hong Kong.  He was awarded a scholarship in recognition of his achievements in photography.

32.  Throughout his school years, he also made contribution to the community by participating in various organizations, including those affiliated with what may be generally considered as ‘pro-establishment’ groups in society.  These organizations included the Junior Police Call Club, the Democratic Alliance for the Betterment and Progress of Hong Kong, TVB, etc.

33.  The Defendant said he held no extremist or anti-government beliefs.  The Post was made out of impulse, and he had requested for the Post to be deleted a few hours after publication and fully cooperated with Police upon arrest.

34.  He exhibited 10 mitigation letters penned by his parents, sister, girlfriend, classmates form the Open University of Hong Kong, friends and teachers from his Secondary School, a social worker and a friend he knew from his social work.  I shall not refer to each and every letter.  But all together, the letters paint a picture of a loving, caring, dutiful, hardworking and aspiring young man who, as reflected by the letters, is apparently also very well-loved by those surrounding him.

35.  The Defendant said in the past 2 years since his arrest, he has been regretful, ashamed and disappointed in himself in that he ruined the wedding day of an innocent couple and subjected their families and friends to abuse, threats, nuisance and harassment.  He also said he had disappointed his parents, his sister, and his girlfriend.

36.  Mr Wong invited me to considering the following matters in sentencing:

(1)  There has been a significant delay in bringing the present matter to this Court.  The ex parte application was only made 2 years after the date of breach.  The SJ had already obtained sufficient and indeed overwhelming evidence against the Defendant by September 2020. The SJ, by way of the affidavit evidence deposed by Mr Newton Chan Senior Assistant Law Officer filed on 31 March 2023, has only sought to explain the delay by reference to the DOJ’s general workload.  No reasons specific to this particular case were advanced.  In the circumstances, Mr Wong said the fact remains that there was undue delay.

(2)  3 years had passed since the date of breach, during which period the Defendant had proved himself to be a contributing member of society by engaging in gainful employment.

(3)  The societal and political atmosphere at the moment is vastly distinct from the one in 2019 to 2020.  The political sentiments against Police are now very much subdued.  The need to pass a sentence for deterrence is now not as strong as a few years ago.

(4)  The Defendant did not make any overt suggestion of violence and hatred in his own Post.  The Post should be read as some juvenile touting which was perhaps acrimonious but not with deeply hostile enmity.

(5)  The Defendant was quick to purge the contempt, by requesting to remove the Post within hours of its publication on his own initiative and before being approached by any law enforcement.  He fully cooperated with the Police upon arrest and immediately admitted to being the person responsible for the Post, which effectively wrapped up the investigation.  This all goes to show his remorse.

(6)  Mr Wong disagreed with Mr Ho submissions seeking to draw an analogy between the Defendant’s contempt with the breach of trust element which would generally be seen as an aggravating factor in the context of theft and fraud cases.  Mr Wong said the relevant question is whether the mischief is accompanied by an extra degree of culpability namely the abuse of his privileged and trusted position.  The Defendant was merely an ad hoc assistant recruited by Mr Lo the photographer.  It could not be said that he was trusted with a privileged position.  Nor was he granted access to certain information when he then abused.  The Defendant was not informed of the groom’s identity or his occupation as a police officer.  Mr Wong said the fact that the Defendant was permitted entrance to the Venue that day did not make his position one of privilege and trust or the subsequent disclosure a breach of trust.  He cited HKSAR v Poon Kar Yue (CACC 356/2017, 12 October 2018, unreported) and HKSAR v Sim Ka Wing (CACC 450/2000, 30 May 20001, unreported).

(7)  Mr Wong noted that whilst the Post ruined PW’s wedding day, he had already been subject to harassment since he started to handle protest cases in 2019 and that his personal information as shown in Hong Kong Chronicles had been in the public domain since at least early 2020.  The Post was in fact taken down the next day upon the Defendant’s request in any event.

(8)  The Defendant’s Post was made before the case of Chan Oi Yau Riyo, the first of these decisions sending out clear warning to future and potential offenders of the Police Doxxing Injunction.

(9)  The Defendant was not a public figure, and no influence and following beyond an anonymous netizen.  He is of good character and was only 25 years old at the time of breach.  He was and still is an industrious and aspiring photographer-cinematographer.  His commitment to creative media is demonstrated by his long track record.

G.  Decision on Sentence

37.  I took into account the various submissions made by Mr Ho and Mr Wong, as well as the matters traversed by the Defendant in his evidence (including the exhibits).

38.  I accepted that the Defendant had previously been a man of good character and a contributing member to the society before the breach, and had continued to act as such in the three years after the breach.  He was and still remained an industrious and aspiring young man who had been working towards his chosen profession continuously and diligently.  I was prepared to accept that the breach was a one-off event, which did not otherwise reflect his general character.

39.  But, the Post had indeed ruined the once in a life time wedding day of PW1 and his wife.  Having to leave the wedding Venue in fear of their personal safety was understandably a traumatizing experience for them.  The fact that the personal information of PW1 had already been disclosed as early as 2020 and that he had been subject to harassment since 2019 was no mitigating factor.  In fact, it could be properly taken into account in assessing the effect of the Post on the life of PW1 and his family, as what the Defendant did happened in that context.  Further, the particular and direct effect of, and impact from, the Defendant’s actions was more immediate and far greater than any general effect from a wider campaign of doxxing.

40.  I agreed with Mr Wong that the breach was perhaps not what might be characterised as a breach of trust in the context of criminal sentencing.  But there was not much value in that point since the Court will take into account all the factual circumstances in sentencing the Defendant, including that he was allowed access to a private venue in his capacity as an assistant photographer of the wedding.  It seemed to me to be obvious that when a person organises their own wedding, they place trust in the various service providers to behave in the appropriate manner and to respect the circumstances of the wedding and the persons involved.  In my view, the circumstances of the Defendant’s actions during the wedding celebration itself – which he was only able to achieve precisely because he was one of the service providers – showed what most persons would regard (at least in ordinary language) as a gross breach of trust.

41.  I accepted that the Defendant’s initiative to take down the Post hours after its publication, his full cooperation with the Police upon arrest and early admission to the breach were all evidence of his remorse.  He was also an ordinary netizen with no or little influence in the society.  The Post was perhaps made out of impulse rather than a calculated attempt to influence the community.  But, impulse or not, the potential or likely impact of the Post should have been obvious to the Defendant.  Even if it was not obvious to him, I do not regard it as real mitigation to state that a person has simply failed to pay any regard to the likely or potential consequences of their own actions.

42.  As to the feature of delay, I accepted that there was no deliberate delay by the SJ in this case.  But, as Mr Wong submitted, the Defendant’s admission to making the Post upon arrest on 16 September 2020 had effectively wrapped up the investigation.  The SJ did not suggest there was further investigation to be done.  Therefore, I did think there was an inordinate delay in bringing these proceedings.  I thought the appropriate way to reflect the impact of that delay was within the sentence, and its proportionality.  Further, as in some other cases, the passage of time had not only allowed the earlier febrile atmosphere to dissipate, it had also given time for the Defendant to demonstrate a return to behaviour more in line with his previous good character.

43.  Bearing in mind all of the above features and factors, all of which I weighed and balanced in the case, it seemed to me that the sufficient, proportionate and appropriate penalty to impose was one of 2 months’ imprisonment, suspended for 12 months.

44.  As to costs, I had observed in previous decisions that making a costs order which a defendant cannot afford risks being disproportionate, when the penalty and costs are considered together.  On the basis that the Defendant was not in a position to meet an indemnity costs order, Mr Wong invited instead me to order only a contribution to the SJ’s costs.

45.  Having considered the Defendant’s financial means in light of all the other factors, I ordered the Defendant to contribute HK$80,000 to the SJ’s costs.