SECRETARY FOR JUSTICE v. CHEUNG CHI HO

HCMP 598/2022

[2023] HKCFI 2104

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 598 OF 2022

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D E C I S I O N

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A.  Introduction

1.  This matter last came before the Court on 18 July 2023. On that occasion, the plaintiff (“SJ”) was represented by Mr Justin Lam of Counsel, but the Defendant was absent. Today the SJ is represented by Mr Alvin Hor, Government Counsel (who has adopted Mr Lam’s previous written submissions), and the Defendant is again absent.

2.  The 18 July 2023 hearing was the first hearing of the originating summons dated 30 November 2022 (“OS”), for which leave had been previously granted by me. The OS sought an order of committal to be made against the Defendant, on the basis of his alleged breach of an injunction order made by me seeking to prevent incitement of injury or harm to judicial officers (“Incitement Injunction”).

3.  Because the Defendant had failed to give any response to the OS, I had also previously given leave for substituted service on the Defendant by way of sending the various materials to his last known e-mail address. I was satisfied that the documents were received by the Defendant and that he knew of the circumstances of the application and the hearing date.

4.  At the hearing, I found that it was appropriate in the circumstances to deal with the matter of any liability for the alleged contempt, notwithstanding the absence of the Defendant.

5.  Having carefully considered the materials, I found the Defendant liable for the contempt.

6.  However, I was not prepared to go on to deal with the sentencing or penalty phase of the hearing, without at least giving the Defendant one further chance to participate in these proceedings.

7.  Instead, I ordered a warrant for his arrest, so that the Defendant might be brought back before the Court. But it also seemed to me to be appropriate to set a ‘long stop’ date, so that the matter would not be left open or in abeyance pending the effecting of the warrant of arrest. I said that I would consider on that date whether it would then be appropriate to go on to deal with the question of penalty even if the Defendant continues to be absent.

8.  The date I set was 14 August 2023, i.e. today. I am again satisfied that the Defendant has been served in accordance with my order for substituted service. I also note that the finding of contempt garnered some media coverage, and may well have come to the attention of the Defendant or those persons in contact with him who might have informed him of it.

9.  However, as already stated, the Defendant has continued to be absent. He is neither present nor represented in Court. Nor has there been any communication from him. In the circumstances identified below, this is perhaps not surprising.

10.  Having considered matters, and where the Court clearly has jurisdiction to proceed to sentencing in the absence of the defendant where circumstances so justify, it seems to me that I should no longer put off dealing with the question of an appropriate sentence to impose for the Defendant’s contempt of Court, which I have found proved.

B.  Background of Contempt

11.  The Incitement Injunction was first obtained on an ex parte basis on 31 October 2019. The grant of the ex parte injunction was widely reported in the media.

12.  On 15 November 2019, the Incitement Injunction was continued on an inter partes basis, albeit with an amendment, so that it prevented or prohibited wilfully disseminating, circulating, publishing or republishing on any internet‑based platform or medium any material or information for the purpose of promoting, encouraging, or inciting the use or threat of violence, intended or likely to cause bodily injury to any person unlawfully within Hong Kong or damage to any property unlawfully within Hong Kong as well as wilfully assisting, causing, counselling, procuring, instigating, inciting, aiding, abetting or authorising others to commit any of those aforesaid acts or participate in any of those aforesaid acts. The inter partes continuation of the Incitement Injunction was also widely reported in the media and substituted service of it was effected in accordance with the Court’s directions.

13.  On 3 December 2020, the Chief Magistrate’s Office received a phone call in which the caller threatened to kill the Chief Magistrate, his wife, and his son by a bomb (“Bomb Threat”). The Bomb Threat was widely reported in the local media and generated significant social media activity.

14.  The Defendant later posted two Facebook comments (together “Comments”), using his account, which were the subject of these committal proceedings. It suffices to say that:

(1)  On 5 December 2020, the Defendant posted a comment (“Comment 1”) in a particular Facebook group named “51黃金良心圈” (“FB Group”) underneath a post which referred to the Bomb Threat (“FB Post”), and which said “講系無用，炸死全家先有證據” (in translation: “It is useless to talk. Bomb the whole family to death. Then there will be evidence.”)

(2)  Later on the same day, a second comment (“Comment 2”) was posted on the Facebook page of i-Cable News (“i-Cable Page”), underneath the post about the Bomb Threat (“i-Cable Post”) saying “炸死全家先有證據” (in translation: “There will only be evidence when the whole family is bombed to death.”)

15.  As I stated in finding the Defendant liable for the contempt, the two Comments posted by the Defendant were clearly in breach of the Incitement Injunction and the acts were obviously intentional.

16.  Comment 1 reached a broad audience. As of 7 December 2020: (1) the FB Group had over 93,000 members and was a “public” group, meaning that anyone could see the post and comments there published; (2) the FB Post had attracted 378 reactions and 108 comments; and (3) Comment 1 itself had attracted one “like” reaction.

17.  Comment 2 had a similarly broad reach. As of 5 March 2021: (1) the i-Cable Post was a “public” post, meaning that it could be accessible by anyone with an Internet connection; and (2) the i-Cable Post had attracted 465 reactions and 118 comments, including Comment 2.

18.  The Defendant was subsequently arrested on 5 March 2021 and cautioned for the offence of incitement to wound. Under caution, he admitted that he posted the two comments on his own initiative, albeit he said he did it out of anger and/or impulse and that he did not actually intend to bomb the Chief Magistrate and his family to death.

19.  The Defendant subsequently absconded from police bail, and it seems that he departed from Hong Kong via the Hong Kong International Airport on 28 September 2021. At least as at 4 May 2022, there was no record that he had returned to Hong Kong since the date of his departure. Further, it seems that the Defendant’s mobile telephone number was terminated as of 20 October 2021 and his Facebook account became inaccessible (and the impugned posts could no longer be seen) as from 26 January 2022. He has taken no part in these proceedings.

C.  Applicable Sentencing Principles

20.  The approach to sentencing for breach of the Incitement Injunction was summarised by me in Secretary for Justice v Shum Lester [2022] 2 HKLRD 744 at §§48-53. As Mr Lam has suggested, they can be summarised as follows:

(1)  The sentencing principles and guidance as explained by this Court for contempt of the Doxxing Injunction is applicable.

(2)  The lack of a doxxing element in an incitement case does not warrant more lenient sentencing options. The appropriate starting point remains one of an immediate custodial sentence, and one perhaps measured in months.

(3)  The conduct of inciting violence online can be said to be more serious than that of doxxing. Whilst both inciting violence online and doxxing are serious matters, the threat posed by inciting violence is more direct, explicit and immediate.

(4)  Any attempt to distinguish circumstances between those where a contemnor appears enthusiastic for the result of his incitement, and those where the contemnor is simply “venting” in the heat of the moment without intention for inciting others to act on his words, should not be taken too far. A person who has given no thought to the logical likely or potential consequences of his words remains culpable. The Court would not wish it to be thought that a person can be treated leniently merely because he has failed to form the actual intention which is nevertheless the logical consequence of the acts performed. The Court is not concerned only with the subjective intention of the contemnor, but with the objective potential or likely effect of the words used. Of course, in any given case where it is shown that the contemnor firmly intended his incitement to result in violence, that can be taken into account.

(5)  Beside the degree of culpability, the Court may take into account various other circumstances to the extent appropriate to the case such as: (a) the contemnor’s personal circumstances; (b) the effect of the contempt on the administration of justice; (c) the need to deter future or repeated contempt; (d) the absence or presence of prior conviction for contempt; (e) the contemnor’s financial means; (f) whether the contemnor has exhibited genuine contrition and made a full and ample apology; and (g) whether the conduct is sufficiently serious to warrant the imposition of a term of imprisonment (sometimes considered as the penalty of ‘last resort’).

(6)  The ultimate question for the Court when sentencing for contempt of a Court order is the determination of a sufficient and proportionate sentence (or sanction, if that word is preferred) for the particular case. Just as the punishment should fit the crime, so the sanction should fit the contempt.

21.  I apply those principles to the particular circumstances of this case.

D.  SJ’s Submissions on Sentence

22.  Through the submissions of Mr Lam adopted by Mr Hor, the SJ invites the Court to take into account various factors when determining the appropriate sentence in this case. I do not need to repeat them, except in so far as I adopt them as part of my own analysis and approach (see below).

23.  But I would respectfully agree that all of those points put forward have considerable force.

E.  Sentence Imposed

24.  As I have previously stated in other cases, the era of the internet and social media gives rise to the very easy practical way by which an individual can breach an order of the Court, and widely disseminate information. The facility to broadcast and publish material widely makes breaches worse, rather than less serious.

25.  In this case, the Comments were posted on public pages and were widely accessible. It is clear that the Comments were posted deliberately so as to be publicly and widely accessible, in two separate and distinct places. The Defendant chose to post the Comments respectively on (1) the FB Group with many thousands of members and (2) the Facebook page of a well-known and renowned cable news provider.

26.  The Comments were made at the time when the media was widely reporting the actual Bomb Threat which the Chief Magistrate received by phone. The act which the Comments incited was specific and extremely serious, namely the bombing of the Chief Magistrate and his family. The form of the Comments was to tell people not just to talk, but to take action. It might be thought not just incitement, but goading. It also seems to me to be an aggravating factor that the Comments were directed not just at a senior judicial officer – itself a serious affront and challenge to the administration of justice – but also at his wife and child. Most right-minded people would find this form of incitement – whether in breach of a Court order or not – utterly repugnant and unacceptable.

27.  The Defendant appears to have admitted or asserted that he posted the Comments to “vent” in the heat of the moment – out of impulse and/or anger – but without any actual intention to incite others to act upon his words. As explained above by reference to the applicable principles set out, even if true, that is scant mitigation (even if it might identify the lack of another aggravating feature). But, the Defendant posted not just one comment, but the two Comments with substantially the same content. It was an intentional act which must have in fact involved some active consideration on his part, and it was not the mere re-posting of information found elsewhere (as has happened in some other cases). The Defendant was the originator of the Comments.

28.  He did not remove the Comments, and it was only on 26 January 2022 (after he left Hong Kong) that they could no longer be found online.

29.  The Defendant has not appeared in, and has apparently refused to engage in, these proceedings. He has deliberately not only failed to admit liability for contempt, but he has also deliberately failed to offer any form of apology for his conduct. I find no remorse.

30.  Indeed – contrary to offering any expression of remorse, contrition or apology – the Defendant appears to have deliberately jumped bail and absconded from the jurisdiction to seek to avoid liability (whether for the criminal offence or the present civil contempt).

31.  I should add that no aspect of the delay in launching these proceedings – which I dealt with on the application for leave – seems to me to be of any great weight in the assessment of the appropriate sentence in this case, where the Defendant has simply absconded and refused to face the consequences of his actions.

32.  In all the circumstances, it seems to me that the appropriate and proportionate sentence to pass is an immediate custodial sentence of four months’ imprisonment.

F.  Costs

33.  In my Decision on Liability, I stated that I thought it was appropriate – where I had found the Defendant guilty of civil contempt in breach in the Incitement Injunction – to order the costs of the proceedings to date against him, and to do so on the usual basis of costs on the indemnity scale.

34.  I see no reason to depart from that approach in relation to the costs of this sentencing or penalty phase of the proceedings.

35.  Mr Hor has asked for the costs to be subject to summary assessment. I will summarily assess the total sum of costs of the proceedings, to be paid by the Defendant to the SJ on the indemnity basis, in light of an updated Schedule to be provided by Mr Hor within 14 days. I will then allow a further 14 days for any comments on the Schedule coming from the Defendant, before proceeding to the assessment.