SECRETARY FOR JUSTICE v. WONG CHI FUNG

HCMP 585/2022

[2023] HKCFI 1023

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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R E A S O N S    F O R

D E C I S I O N

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A. Introduction

1.  The now admitted contempt of court was committed by the Defendant on 14 August 2020. The proceedings seeking committal for that contempt were, however, only commenced by the Secretary for Justice (“SJ”) some 21 months later, on 11 May 2022. That simple chronology has required (1) the Defendant to have to apologise for not apologising sooner for his actions constituting the contempt, and (2) the SJ to have to seek to explain away the “unfortunate” delay, and to suggest that there is no logical connection between that delay and the appropriate penalty for the contempt.

2.  That was not a particularly auspicious starting point for either party to these proceedings. The Court was also left in an unsatisfactory position.

3.  The ex parte application for leave for committal against the Defendant was in respect of the Defendant’s breach of:

(1)  the injunction order granted by the Chow J (now Chow JA) dated 25 October 2019, as amended on 28 October 2019, re-amended on 31 October 2019, continued and varied by the Coleman J on 8 November 2019 and amended on 11 December 2019 (“Police Doxxing Injunction”) in HCA 1957/2019 (“underlying civil action”); and

(2)  the anonymity order granted by Principal Magistrate Peter Law Tak Chuen, dated 2 June 2020 (“Anonymity Order”) in WKCC1553/2020 (“underlying criminal proceedings”).

4.  The breach occurred in that, on 14 August 2020, the Defendant published a post (“Post”) on his Facebook page (“Facebook Page”) (being an internet-based platform or medium) that disclosed the personal data of a police officer (“PW1”), PW1’s wife and PW1’s two daughters.

5.  On 24 November 2022, I granted leave to the SJ to pursue this committal application against the Defendant: see Secretary for Justice v Wong Chi Fung [2021] 1 HKLRD 93 (“Leave Decision”). The documents were served on the Defendant on 7 December 2022, and he filed the Acknowledgement of Service on 20 December 2022.

6.  Because the Defendant did not contest liability, I dealt with the matter at a mitigation and sentencing hearing on 17 April 2023. At the hearing, the SJ was represented by Mr Martin Ho of Counsel, and the Defendant was represented by Mr Albert NB Wong of Counsel.

7.  At the conclusion of the hearing I sentenced the Defendant to an immediate period of three months’ imprisonment, for reasons to be handed down later. I also said that I would deal with the question of costs at the time of those reasons.

8.  These are my Reasons for Decision.

B.  Agreed Facts

9.  The SJ and the Defendant have usefully agreed the following matters, so as to identify material facts relied on by the SJ that are not disputed by the Defendant for the purposes of the sentencing hearing.

B.1  The Police Doxxing Injunction

10.  On 25 October 2019, the SJ and the Commissioner of Police (suing on his own behalf and on behalf of all other Police Officers and Auxiliary Officers) (collectively, the “Plaintiffs” in the underlying civil action) made an ex parte application for an injunction against persons unlawfully and wilfully conducting themselves in any of the acts prohibited under paragraphs 1(a), (b) or (c) of the Indorsement of Claim in the underlying civil action (collectively, the “Defendants” in the underlying civil action).

11.  The acts prohibited under paragraphs 1(a), (b) or (c) of the Indorsement of Claim are:

(1)  using, publishing, communicating or disclosing to any other person the personal data of and concerning any Police Officer(s) and/or their spouses and/or their respective family members (namely parents, children or siblings), including but not limited to their name, job title, residential address, office address, school address, email address, date of birth, telephone number, Hong Kong Identity Card number or identification number of any other official identity documents, Facebook Account ID, Instagram Account ID, car plate number, and any photograph of the Police Officer(s) and/or their spouses and/or their respective family members (namely parents, children or siblings) (“Personal Data”), without the consent of the Police Officer(s) and/or their family member(s) (as the case may be) concerned;

(2)  intimidating, molesting, harassing, threatening, pestering or interfering with any Police Officer(s) and/or their spouses and/or their respective family members (namely parents, children or siblings); and/or

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

12.  On the same day, Chow J (as he then was), sitting in chambers (not open to the public), granted an injunction order (“Interim Injunction Order”) effective until the return date on 8 November 2019. The granting of the Interim Injunction Order was widely reported in the mass media including, inter alia, English and Chinese newspapers with wide circulation in Hong Kong, major radio and television service providers such as Radio Television Hong Kong and various sources on the internet (“Local Media”).

13.  On 28 October 2019, Chow J, sitting in Chambers (not open to the public), made an order to amend the Interim Injunction Order (“Amended Interim Injunction Order”). The granting of the Amended Interim Injunction Order was widely reported by the Local Media.

14.  On 29 October 2019, the Plaintiffs made an inter partes application against the Defendants for continuation of the Amended Interim Injunction Order, fixed to be heard on 8 November 2019.

15.  On 31 October 2019, Chow J, sitting in chambers (not open to the public), further made a technical amendment to the Amended Interim Injunction Order by amending the date of the Order (“Re-Amended Interim Injunction Order”). The Interim Injunction Order, Amended Interim Injunction Order and Re-Amended Interim Injunction Order would be collectively referred to as the “Interim Injunction Orders”.

16.  On 5 November 2019, the Hong Kong Journalist Association (“HKJA”) applied to vary the Re-Amended Interim Injunction Order, by including the following terms:

(1)  Paragraph 1 of the Re-Amended Interim Injunction Order does not prohibit any lawful act(s) which are done solely for the purpose of a “news activity” as defined in section 61 of the Personal Data (Privacy) Ordinance Cap 486 (“PDPO”); and

(2)  Paragraph 1(a) of the Re-Amended Interim Injunction Order does not prohibit the disclosure of Personal Data to a data user whose business, or part of whose business, consists of a “news activity” where the requirements of section 61(2)(b) of the PDPO are satisfied.

17.  At the hearing of the Plaintiffs’ inter partes application and the HKJA’s Summons on 8 November 2019, the Coleman J, sitting in chambers (open to the public), granted the Plaintiffs’ inter partes application by ordering the Re-Amended Interim Injunction Order to be continued, except with the removal of the reference to “interfere” in paragraphs 1(a) and (b) of the Re-Amended Interim Injunction Order. As regards the HKJA’s Summons, the Coleman J granted an order in terms as set out in paragraph (1) above but refused to include the terms as set out in paragraph 12(2) above (“Return Date Order”).

18.  The handing down of the ruling and the sealing of the Return Date Order were widely reported by the Local Media.

19.  On 29 November 2019, the Plaintiffs made an application to amend the Return Date Order. On 10 December 2019, Coleman J, sitting in chambers, granted the Plaintiffs’ application by amending on 11 December 2019 the Return Date Order to include Special Constable(s), their spouses and their respective family members (namely parents, children or siblings) (“Amended Return Date Order”). The granting of the Amended Return Date Order was widely reported by the Local Media.

20.  The various orders were validly served by way of substituted service, by publishing a copy of the Interim Injunction Orders on the webpages of the Police as well as that of the Government of the Hong Kong Special Administrative Region.

21.  For the purposes of this Decision, and as already defined above, I shall refer to the various Orders as eventually made as the “Police Doxxing Injunction”.

B.2  The Anonymity Order

22.  On the morning of 11 November 2019, a police officer (“PW1” or “Officer”) used his firearm during a public order event in Sai Wan Ho (“Sai Wan Ho Incident”).

23.  Since the Sai Wan Ho Incident, PW1 and his family had been subjected to widespread doxxing on social media, such as Facebook, LIHKG (連登) and Telegram.

24.  In the course of the underlying criminal proceedings, upon the Prosecution’s application, on 2 June 2020, Principal Magistrate Law Tuk Chuen Peter granted the Anonymity Order to protect the identities of PW1 and his families. The material terms of the Anonymity Order are as follows:

鑑於本案的性質及[PW1] 的背景，及為保障公眾及[PW1] 與其妻及兩女兒的利益。法庭現命令禁止任何人（包括傳播媒體）發佈或報導任何可能會致使公眾識別[PW1] 身分的事項，包括：

1.  [PW1] 及其妻，兩女兒姓名；

2.  [PW1] 及其妻，兩女兒照片；

3.  [PW1] 及其妻，兩女兒住址；及

4.  [PW1] 及其妻工作地點和兩女兒就讀學校。

直至法庭另有命令為止。

任何人士發佈或引致任何發佈而披露[PW1]與其妻及兩女兒的身份，將可能被視作藐視法庭命令。

(English translation)

In view of the nature of this Action and the background of [PW1], and in order to protect the interest of the public and [PW1] and his wife and two daughters, the Court now orders that, until further order by the Court, all persons (including medium of communication) be prohibited from publishing or reporting any matters that may led the public to identify [PW1], including:

1.  the name of [PW1] and his wife and two daughters;

2.  the photos of [PW1] ad his wife and two daughters;

3.  the residential address of [PW1] and his wife and two daughters; and

4.  the work address of [PW1] and his wife and the school(s) of the two daughters.

Anyone who publishes or causes to publish [matters] that disclose the identity of [PW1] and his wife and two daughters may be held liable in contempt of court.

25.  The granting of the Anonymity Order was widely reported by the Local Media.

B.3  The Defendant’s Breach of the Police Doxxing Injunction and the Anonymity Order

26.  During a cyber patrol by the Police on 16 August 2020, PW3 came across the Post, i.e. a Facebook post published on the Defendant’s Facebook Page on 14 August 2020 that is addressed to Nathan Law (羅冠聰; “Law”) a politician who was formerly a member of the Legislative Council, and entitled “聽聞無差別殺人犯 [PW1] 成家喺英國。” (English translation: “heard that [PW1], the indiscriminate killer and his family are in the United Kingdom”). The Post disclosed PW1’s full Chinese name and led the general public to be able to identify PW1 as the Police Officer involved in the Sai Wan Ho Incident.

27.  The Post attached with a LIHKG (連登) thread (“LIHG Thread”) captioned “聽聞無差別殺人犯 [PW1] 成家都[喺]英國 準備自投羅網” (English translation: “heard that [PW1], the indiscriminate killer and his family are in the United Kingdom, ready to put their heads into a noose” ) with the blurb “相信無人唔記得佢地希望有英國手足同在英港人報料 女皇搵仔 正式啟動 …” (English translation: “trust that no one would forget about them, hope comrade in the United Kingdom and Hong Kong citizens in the United Kingdom could provide intelligence, “the Queen finds son” campaign officially commenced”) that:

(1)  Disclosed four photos of PW1, his spouse and his family members (namely, his two daughters). One of the four photos was a digitally edited photo of PW1 and his two daughters with knives object on each of the daughters and with the caption “我地老豆係殺人犯:)” marked thereon; and

(2)  Contained a pinned message that stated, among other things, the thread is to report “about the 2 daughters of a grave human rights abuser taking freedom away from Hong Kong – Mr. [PW1]. He is a police officer in Hong Kong…”. Such pinned message embedded links to webpages containing personal information of PW1, his spouse and his family members (namely, his two daughters), including, amongst others, Hong Kong Chronicles (a prominent Police doxxing website) “profile” of PW1 titled “[PW1]: 香港警察，濫權黑警 [PW1’s police unique identification number] (WKCC 1553/2020)” (“Hong Kong Chronicles’ Profile”).

28.  The Hong Kong Chronicles’ Profile embedded in the LIHKG Thread attached in the Post:

(1)  disclosed various personal data of PW1, his spouse and his family members (namely, his two daughters) including PW1’s full Chinese and/or English names and HKID numbers of PW1, his spouse and his family members (namely, his two daughters), date of birth of PW1 and one of his daughters, home and/or mobile telephone numbers of PW1, his spouse and his family members (namely, his two daughters), e-mail address or social media account of PW1 and one of his daughters, residential address of PW1 and his wife’s family, and ten photographs of PW1, his spouse and his family members (namely, his two daughters); and

(2)  referenced the criminal proceedings in WKCC 1553/2020, including the title “[PW1]: 香港警察，濫權黑警[…] (WKCC 1553/2020)” and the content of the Anonymity Order, i.e. “… 裁判官羅德泉企圖禁止任何人披露[…]等人嘅資料，案件編號為 WKCC 1553/2020”.

29.  The status of the Post, as shown by a “Globe” icon underneath the Facebook account’s name, was “Public” (i.e. the Post was publicly accessible by anyone with connection to the internet). At the material time, the Facebook Page had a large social media following with 458,241 likes and 500,808 followers (as at 28 August 2020).

30.  The Post was deleted. Upon Police’s checking on 17 August 2020 at around 11:00am, the Post was found to have been deleted.

31.  On 17 August 2020, Wen Wei Po reported in a news article that the Defendant had disclosed PW1’s personal data on his Facebook Page in breach of the Anonymity Order and the Police Doxxing Injunction.

32.  The Post, despite being relatively short-lived (less than two days, namely between 11:39pm on 14 August 2020 when the Post was published and 7:51pm on 16 August 2020 when the Post was captured by the Police upon cyber patrol), attracted wide attention with 4,900 counts of reactions (i.e. “like”, “anger” and “laugh”), 186 comments and 376 shares.

33.  Further, the LIHKG Thread attached to in the Post was also commented on by 2,054 Facebook users, including several comments inciting others to sexually harass PW1’s two daughters.

B.4  Police Investigation

34.  Police intelligence revealed that the account holder of the Facebook Page was the Defendant, who resided at an address in Ap Lei Chau, Hong Kong. The Defendant had control of the Facebook Page at the material time:

(1)  The Defendant’s personal particulars are set out in the Facebook Page.

(2)  On 17 August 2020 (about 3 days after the Post), a photo of a Summons issued against the Defendant for knowingly taking part in an unauthorised assembly in breach of section 17A(2)(a) of the Public Order Ordinance Cap 245 was published on the Facebook Page. The caption to that photo stated that “[h]ere is the summons to defendant I received from [an officer] of Hong Kong Police Force recently”.

(3)  In August 2020 (in the month when the Post was made), the Defendant hosted 10 live videos on the Facebook Page.

(4)  Various posts on the Facebook Page were written in the first person until the Defendant was remanded since the end November 2020. (The Defendant’s Facebook Page remained active even after his imprisonment in which messages are said to be passed on his behalf.)

35.  The Post addressed to Law purported that PW1 and his family were in the United Kingdom at the material time.

36.  PW1 confirmed that the full Chinese name shown in the Post accurately stated his full Chinese name. Further, PW1 confirmed the accuracy of all personal data stated in the Hong Kong Chronicles’ Profile. PW1 and his family members had never supplied their personal data to the Defendant and had never given consent to the Defendant (or any other person(s)) to disclose any of their personal data (including PW1’s full Chinese name) on the Facebook Page.

37.  As a result of this unauthorised disclosure of personal data, PW1 (and his family members) have received numerous nuisance telephone messages, such as from various loan-making institutions, and letters with intimidating contents. His two daughters have been bullied at school and have had to reluctantly change school. PW1 and his family members have been under immense stress, including difficulty in sleeping soundly. Given the severity of the nuisance, harassment and intimidation against PW1 and his family members, each (PW1, his wife and his two daughters) have had to change their mobile phone numbers and were arranged to stay in a safe house for around a year. PW1 also had to be transferred to another posting within the Police Force.

38.  The Defendant’s breach of the Police Doxxing Injunction and Anonymity Order was contumacious and contumelious, in that he proceeded to publish the Post on the Facebook Page notwithstanding his knowledge of the existence of the Police Doxxing Injunction and the Anonymity Order.

B.5  Conclusion

39.  By reason of the aforesaid:

(1)  By way of the Post on his Facebook Page, the Defendant used, published, communicated and/or disclosed to other persons the personal data of and concerning PW1 (i.e. a Police Officer), his spouse and his family members (namely, his two daughters) without their consent and/or information that may lead the public to be able to identify PW1, including PW1’s full Chinese name. Such personal data including PW1’s full Chinese and/or English names and HKID numbers of PW1, his spouse and his family members (namely, his two daughters), date of birth of PW1 and one of his daughters, home and/or mobile telephone numbers of PW1, his spouse and his family members (namely, his two daughters), e-mail address or social media account of PW1 and one of his daughters, residential address of PW1 and his wife’s family, and ten photographs of PW1, his spouse and his family members (namely, his two daughters).

(2)  The Defendant, by using, publishing, communicating and/or disclosing the personal data of PW1, his spouse and his family members (namely, his two daughters) and together with the wordings “聽聞無差別殺人犯 [PW1] 成家喺英國” (English translation: “heard that [PW1], the indiscriminate killer and his family are in the United Kingdom”) in the Post on the Facebook Page and by making such information public (in circumstances where his Facebook Page was widely read and subscribed by members of the general public), must have been aware that his act(s) mentioned in sub-paragraph (a) above is/are likely to intimidate, molest, harass, threaten or pester PW1, his spouse and his family members (namely, his two daughters).

(3)  The Defendant, by using, publishing, communicating and/or disclosing the personal data of PW1, his spouse and his family members (namely, his two daughters) in the Post on his Facebook Page, assisted, counselled, instigated, incited, aided or abetted others to commit or participate in any of the acts mentioned in sub-paragraphs (1) and (2) above.

(4)  As mentioned above, the Police Doxxing Injunction was duly served by way of substituted service (via publication on the Police and the Government webpages) and the granting of the Police Doxxing Injunction was widely reported in the Local Media. The Defendant, being an active internet user who frequently browsed and shared online news articles on his Facebook page, must have been aware of the material terms of the Police Doxxing Injunction prior to his publication of the Post.

(5)  The granting of the Anonymity Order was widely reported in the Local Media. By attaching the link to the LIHKG Thread which further embedded a link to the Hong Kong Chronicles’ Profile with references to the Sai Wan Ho Incident, the underlying criminal proceedings and the Anonymity Order, the Defendant must have been aware of the material terms of the Anonymity Order prior to his publication of the Post.

40.  The deliberate acts of the Defendant identified in paragraph 39 above, coupled with his knowledge of the Police Doxxing Injunction and the Anonymity Order, amounted to contempt of court which was contumacious and contumelious.

41.  In the circumstances, the actions taken by the Defendant constitute a breach of the Police Injunction Order and the Anonymity Order.

42.  I included the application of the above agreed facts to my consideration of sentence.

C.  Sentencing Principles

43.  The sentencing principles for a breach of the Police Doxxing Injunction have been outlined by me in a number of previous decisions: see, for example, Secretary for Justice v Chan Oi Yau Riyo [2020] 3 HKLRD 494 at §§54-63; Secretary for Justice v Cheng Lai King [2020] 5 HKLRD 356 at §§64-72; and Secretary for Justice v Chan Kin Chung [2021] 1 HKLRD 563 at §§38-45.

44.  It can also be borne in mind that the breach of the Anonymity Order involves a criminal contempt of court, namely a serious interference with the due administration of justice: see Secretary for Justice v Chin Po Fung [2021] HKCFI 598 at §15.

45.  Those principles can be read, and it is unnecessary to set them out at any great length in these Reasons for Decision. I had them all in mind. The following points are, however, worth specific mention:

(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.

46.  I also repeat a point made by me previously, namely 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.

D.  Lapse of Time or Delay

47.  In my Leave Decision, I expressed considerable and real concerns about the long period of delay in bringing the Defendant’s relevant breach of the Police Doxxing Injunction to the attention of the Court, in the delayed making of the application for leave for committal. I expressed the concern that delay could undermine the public policy origin of the inherent jurisdiction of contempt of court, a view expressed in my earlier decisions to which I made reference in the Leave Decision.

48.  I also pointed out that, on the materials provided, it could be seen that the Police had concluded the bulk, if not the entirety, of the relevant investigations is revealed in the facts now relied upon in support of the application to commit the Defendant for contempt of court, by 17 August 2020. Nevertheless, it was a further approximately 20 months before the application was made for leave for committal (which application was made on exactly the same date as were two other applications, and just two weeks or so before a fourth). I also pointed out that the first three applications were made within about two weeks following the last of a series of prior decisions in which I had expressed real concern about the long periods of delay in bringing similar previous applications.

49.  From the evidence of the Officer (PW1) filed in these proceedings, it seems that it was only on 4 May 2022 that he was first shown the offending Post made by the Defendant (saying that he had never seen the screenshot of the post or its contents before). This is so, notwithstanding that the Officer also states that he was aware of doxxing activities against him since November 2019. It remains unclear why it would need 20 months to obtain the primary evidence from the Officer. I also note that the SJ’s claimed costs includes time spent with ‘client’ of around four hours. Assuming the client is the Officer, Mr Wong is correct in his submission that the time spent/interest benefit analysis would appear hugely to have favoured bringing this case to Court as soon as possible.

50.  Indeed, though I have acknowledged in the Leave Decision that any perception of ‘sitting on’ cases, in the sense of ‘warehousing’ them, has been dispelled by the evidence filed for that argument, I agree with Mr Wong that the overall explanation for delay remains not particularly convincing.

51.  In my Leave Decision (at §§31-32), I pointed out:

(1)  If it was the SJ’s view that there is overwhelming evidence against the Defendant (and others), it might be asked why such strong applications were not brought to the Court with reasonable speed.

(2)  At least some of the proposed defendants – of course, including the Defendant himself – are known individuals who sought to carry significant influence in their expressions of views, and who sought to create a tide of opinion.

(3)  So that 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.

(4)  Further, surely the most important time for sending a clear deterrent signal or message to society was much closer to the events for which a deterrent signal was required, and for which it might be most effective.

52.  There is also great force in Mr Wong’s submission that had there been contempt proceedings initiated in 2020 against someone as high profile as the Defendant, leading to an apology, acceptance of liability and punishment, that would have deterred in 2020 any further breaches of the Police Doxxing Injunction – or even a connected injunction intended to restrain incitement. As Mr Wong submits, perhaps the DOJ would not then have been inundated with so many cases.

53.  To put it another way, some of the circumstances which the SJ now relies upon as explaining, if not justifying, the significant delay – namely the huge number of cases which were considered for possible contempt proceedings – would likely have been somewhat different had the DOJ focused on the ‘big fish’ rather than the ‘low hanging fruit’ (if I might mix my metaphors). It would be surprising if there were not some form of prioritising, yet that is clearly not evident in the failure to have brought applications like this one in good time, when it might have had the greatest effect.

54.  Indeed, as Mr Wong also submits, the deterrent effect of the Defendant’s apology now – and any penalty imposed on the Defendant – has been undermined by the SJ’s delay in bringing these proceedings. It might also be thought that an opportunity to lessen the nuisance, harassment and intimidation suffered by the Officer and his family was in effect passed up as a result of the delay.

55.  To be more balanced, the undermining of the deterrent effect and loss of opportunity to lessen the harassment have at least been contributed to by the SJ’s delay in bringing these proceedings. But, to an extent, this point also counts against the Defendant.

56.  This is because there was also delay on the part of the Defendant. I acknowledge that the Post was removed within two days. However, a significant part of the damage caused would have been caused within those two days. That might have been significantly reduced, had the Defendant not just removed the Post but had at the same time publicly and expressly disavowed any of the sentiments in the materials and linked materials, and in the comments and responses made by numerous persons as a result.

57.  I acknowledge that the Defendant has now unreservedly apologised for his part in the incident, and that he now states that he fully understands the extent of the harm that he caused and now does not hesitate to condemn such comments as were contained in the LIHKG Thread at the time. But he did not apologise when he removed the Post, nor did he then express that relevant understanding or condemnation.

58.  As the Defendant has himself now recognised, a sooner apology could have had a much greater effect of diffusing the then tense social climate. Indeed, such actions by someone who – as was recognised by Mr Wong in his submissions – was “as high profile as” the Defendant could indeed have had a significant calming or deterrent effect. That is also a corollary of the fact that the Defendant’s high profile made it likely that the making of the Post would have significantly wide and broad effect.

59.  Instead, as I said at the beginning of these Reasons for Decision, the Defendant has had to offer an apology for not apologising sooner. That he has done so, seems to me to reflect a fundamental shift in his thinking or attitude since around the time of the events leading to his admitted contempt (as to which, see further, below).

60.  But, because of the fundamental shift in his thinking or attitude since 2020, I take with a pinch of salt the assertion made by Mr Wong for the Defendant, that had he been notified or alerted to potential contempt proceedings he would have been equally willing then as he is now to accept liability and apologise.

61.  Nevertheless, Mr Wong rightly accepted on behalf of the Defendant that the delay in these proceedings does not make the Defendant less culpable. But, he submitted, even if the SJ’s proposition that there is no “logical connection” between delay and the lighter sentence is correct, various points on delay may affect the costs order.

E.  SJ’s Submissions

62.  In his submissions on behalf of the SJ, Mr Ho suggested that the appropriate starting point of an immediate custodial sentence measured in months was also the appropriate endpoint, both as a matter of principle and on the facts of the case. He relied on five broad points, being:

(1)  The Defendant was a widely known activist and had a large following on Facebook. He was plainly someone to whom some members of society would look as an example. Hence, the fact that the Defendant was in a position of influence is an aggravating factor in two ways, namely (a) he had abused the social influence enjoyed by himself, and (b) it would mean that any message he had posted online would be spread far and wide, thus deepening the effect of doxxing on the police officer and his family.

(2)  The Facebook Post was made accessible to the general public, and was also addressed to Law, another well-known politician in Hong Kong. The ability for rapid and wide dissemination of information online makes the Defendant’s breach (by the utilisation of social media) worse rather than less serious.

(3)  The information embedded within the Facebook Post, including the comments in the LIHKG Thread and the Hong Kong Chronicles webpage contains extensive personal data of the police officer and his family members. It also contains distasteful and repulsive comments (including ones inciting others to sexually harass the police officer’s daughters). This is relevant to the assessment of victim impact, where the harm done is severe and long-lasting.

(4)  It is not to the point to say that the Facebook Post was short-lived. As previously observed by this Court, once personal data has been publicly revealed on the Internet or social media, even if the original point revelation is subsequently removed, that personal data will almost certainly forever remain publicly available. That is the very nature of the Internet and social media, and is the obvious consequence of the repeated re-posting of earlier posts. To use a phrase in common parlance, it is impossible to put the genie back into the bottle. The kind of damage caused is also likely to have long-lasting effect.

(5)  Accordingly, the Court should send a clear message to the public that such conduct is not to be tolerated in a civilised society. The SJ remains of the view that there is still a societal need for deterrent messages to be sent in light of the prevailing social atmosphere.

63.  These are all points I took into account.

64.  Mr Ho did acknowledge that certain mitigating factors may be advanced on behalf of the Defendant including (1) his admission of liability at an early stage of the proceedings, and the acceptance of responsibility for his actions, (2) the fact that the Defendant deleted the Facebook Post on his own accord shortly after its publication, and (3) the Defendant had no prior conviction for acts relating to doxxing (though he had one prior record of criminal contempt of court relating to the Occupy Central Movement).

F.  Defendant’s Evidence

65.  In his affidavit filed for these proceedings, the Defendant stated by way of introduction the following (in my summary):

(1)  The purpose of the affidavit is to express the Defendant’s clear intention to sincerely apologise to the Court, and to declare that he does not wish to undermine, define, or affront the authority of the Court.

(2)  He wishes to make clear his respect for the Court, and to express the deepest apologies as well as to disavow any public statements that may be seen to have breached the Police Doxxing Injunction and the Anonymity Order.

(3)  He wishes to apologise to the police officer and his family, and in particular to his two daughters.

(4)  He was horrified to read the types of comments aimed against the daughters, and fully appreciates the distress that must have caused.

(5)  Though he was not aware of the comments at the time, he is deeply remorseful and regretful for having played any part in the incident.

(6)  The comments made are completely antithetical to the religious and social values he holds dear, and he unreservedly condemns comments of such a nature aimed at young women.

66.  The Defendant then set out his personal background, including the religious family background to which he attributes much of his interest in social affairs, and to the recognition of the importance of supporting others in the community less fortunate than himself. He appreciates and shares the desire to “draw a line” under – perhaps an echo of the phrase I used in the Leave Decision at §1 – the period of his involvement in social movements, which culminated in extreme polarisation of society.

67.  Though he has in effect been without liberty since around November 2020, he considers himself a student and – battling the dyslexia and learning difficulties experienced at school – he has sought to further his studies in theology and economics. He graduated with a bachelor degree in Social Sciences in Politics and Public Administration in 2020.

68.  The Defendant set out his other criminal convictions, in connection with unauthorised or unlawful assemblies, but (he says) unrelated to the current proceedings – and to the fact that he has pleaded guilty to a charge of conspiracy to commit subversion, on which he awaits sentencing.

69.  He acknowledged that the Post attaching the LIHKG Thread was in breach of the Police Doxxing Injunction and the Anonymity Order. But he wished to stress that at no time did he intend to challenge or undermine the authority or integrity of the Court. As the Defendant put it, the political climate at the time was incredibly volatile, and in the heat of the moment and frustration he shared the Post. Regrettably, he did not pay sufficient attention to the consequences of that action, not least in failing to consider the effects on the family of the police officer.

70.  It was on his own initiative (and not because he was warned by Wen Wei Po) that he removed the Post in the morning of 16 August 2020. Upon reflection, he also recognises that he should have instantly apologised and urged people not to put family members into distress, and he deeply regrets not having done so.

71.  He says that, since he became the subject of a number of criminal proceedings, the Post was not at the forefront of his mind from around the end of 2020. But had he been aware that the SJ was contemplating contempt proceedings, he would have instantly admitted liability and apologised.

72.  The Defendant also set out his service to the community since his high school years in 2012, by reference to the number of individual matters over the following years. One matter was to assist in the purchase of facemasks for vulnerable groups, during the recent pandemic. I think it can be accepted that the type of community service was altruistic.

73.  The Defendant also exhibited mitigation letters from his family, pastors and teachers who have known him through the years. They tend to present a consistent picture of the Defendant, emphasising his compassion and dedication to community service. Amongst the letters:

(1)  His mother describes the Defendant as showing compassion from an early age, and that social injustices and hardships faced by grassroots communities motivated the Defendant to become involved in politics, with the belief that it is the key to solving problems. His mother says that the Defendant is committed to Christian values and strives to create a fair and just society.

(2)  A Prison Chaplain identifies the Defendant is an active member of the Christian community in prison. He has got to know the Defendant as a deeply principled and dedicated young man, profoundly thoughtful and with a strong ability for critical self-reflection. The Prison Chaplain says that it is due to his deep respect for the Defendant’s selfless passion and a strong sense of justice, and due to his appreciation for the Defendant’s personality, that he is willing to write a mitigating letter.

(3)  A Pastor from his childhood describes the Defendant as demonstrating a good understanding in faith and a keen heart for Christ, whose outreach activities have shaped the person who cares about society and needy people and who dares to live out what is taught in the Bible, which he believes in his heart.

(4)  An Open University Lecturer described what might seem to be a trivial matter, but said that the incident had made an impression on him that the Defendant is responsible and considerate to others.

74.  The Defendant asked for some leniency in deciding the penalty.

75.  I have taken these matters into account when I imposed the penalty.

G.  Mitigation

76.  In his balanced and well-judged plea in mitigation, Mr Wong drew my attention to specific matters on behalf of the Defendant. Though I did not lose sight of the further detail in the submissions, the points might be summarised as follows:

(1)  The Defendant now fully understand the extent of the harm caused, especially upon reading the measures that the police officer and his family had to take in order to avoid further harassment and to protect the daughters.

(2)  The Defendant is horrified by the extent and nature of the comments in the LIHKG Thread, though he was unaware of them at the time.

(3)  The Defendant unreservedly apologises for his part in the incident, and does not hesitate to condemn such comments and any form of bullying of the daughters.

(4)  He also deeply regrets not apologising sooner, when an apology then could have had much greater effect of diffusing the tense social climate.

(5)  The Defendant’s apology, remorse and regret are genuine, and are consistent with his character as painted by the mitigation letters provided to the Court.

(6)  The Defendant’s intentions have been to address social injustice, even if his methods for doing so have sometimes been misguided.

(7)  The last few years have been a valuable lesson for the Defendant that the ends do not justify the means.

(8)  The Defendant’s time in custody has been well-used in self-reflection and education.

(9)  The offending Post occurred “out of momentary misjudgment”, and whilst the Defendant did have the instinct to reveal the identity of the police officer, he failed to realise the severe consequences as might or did follow (where the malevolence directed against the officer’s daughters is inconsistent with the Defendant’s character).

(10)  The Post was removed within 48 hours, on the Defendant’s own action (and not prompted by others).

(11)  Whilst the necessary apology should have come sooner, since November 2020 the Defendant has effectively been imprisoned, and a considerable time has since passed.

(12)  Whilst the delay in bringing these proceedings has not prejudiced the Defendant’s ability to respond, and the starting point for the penalty is still imprisonment measured in months, followed by appropriate reductions taking into account the circumstances and genuine remorse, the material delay has undermined the utility of these proceedings, which is an additional factor that can be considered (including as to the costs order to be made).

77.  I also took these various matters into account when I imposed the penalty.

H.  Appropriate Penalty

78.  The starting point is, as usual, that it is fundamental to the rule of law that court orders are to be obeyed. Court orders are not guidelines, and the requirement to obey court orders does not depend varying on one’s political or personal views, or state of emotion.

79.  The Defendant was a public figure who had, knew he had, and intended to have, a significant public following and consequent influence. The Post was in the form of an open letter written to another similar public figure. It had a link to a known doxxing site or channel. If a person has a large social media following, the harm caused by the posting of materials may be greater. The numbers in this case show that. Hence, as has been previously stated, that a person has a large social media following identifies that the person wielding the extent of potential influence needs to have greater guard against the inherent dangers of posting information.

80.  The Defendant has sought to emphasise that he had no intention to generate the kind of remarks and comments in the LIHKG Thread, which advocated violence including sexual violence. But, the Court’s role is not to punish someone for having forgotten about or failed to form a specific intention about the logical consequences of their actions. The Court’s punishment is imposed to deal with the failure to have thought through the consequences of the chosen actions before the actions were performed.

81.  Indeed, the Defendant must have had some intention when he made the Post, and it would have been naive in the extreme in the then climate to have assumed that the Post would not provoke or generate or be linked to at least unhelpful and inappropriate comments. To put it bluntly, making the Post was only more likely to raise the temperature and inflame the situation than calm it. This is to an extent now recognised by the Defendant when he acknowledges that once the Post was made, even though it was relatively swiftly taken down, the damage was done.

82.  Indeed, not to have been aware of the content of the immediately linked item does not seem to me to be a significant point of mitigation. As has been often previously pointed out, the very problem with the use of social media is that persons post or forward materials without thinking of, or simply not caring about, the potential and often likely consequences. It is because it is easy to post something on social media or the internet with just a few clicks or keystrokes that people should stop to think about the consequences of their actions, where the effects may be wide and last a long time. It is not very impressive or very persuasive to state that harm was not actually intended when it is the likely and logical consequence of the action.

83.  The very nature of the internet and social media facilitates, and the very point of doxxing activities is, to put private personal data into the public domain, and precisely to facilitate or to encourage the kinds of interference and harassment as have typically followed, including in this case. This is the “ripple effect” to which I have previously made reference in other judgments.

84.  I specifically take into account that, once these proceedings were started, the Defendant quickly identified that he would admit liability, and that he would apologise both for the original contempt and for the failure to have apologised earlier for the original contempt.

85.  I also take into account that, as it seems to me on the evidence, there has been a significant shift in the mind-set of the Defendant since 2020. Though I am not persuaded that the Defendant would necessarily have taken his current stance had these proceedings been commenced in, say, the third quarter of 2020, I accept that the Defendant now recognises that his stance and methods for pursuing his stated aims were not appropriate.

86.  However, the particular Post and the consequences of it seemed to me to be amongst the most serious of those that have been brought back before the Court as a breach of the Police Doxxing Injunction, taking into account the Defendant’s personal standing and circumstances. But for the belated recognition and apologies now offered to the Officer and to the Court, I would have been minded to impose a longer period of immediate imprisonment as the appropriate penalty. But, taking into account those matters, as well as the passing of time, and the various mitigating factors which I have set out above, it seemed to me that in the exercise of my discretion an immediate custodial sentence of three months was the appropriate and proportionate sentence to impose by way of penalty for the admitted contempt.

87.  As to costs, I acknowledge that the usual order in a successful committal procedure is for costs to follow the event and to be payable by the person found guilty of contempt on an indemnity basis. Nevertheless, as has been pointed out in other cases, in appropriate cases it may be correct to order payment of a contribution only, rather than a full indemnity, to reflect the appropriate degree of proportionality when the penalty and costs can be regarded as composite elements of the proceedings’ impact on a defendant. Each case will be determined on its own particular facts and circumstances. I accept that there is no presumption of indemnity costs in contempt proceedings.

88.  In this case, the SJ seeks costs order against the defendant, payable on the indemnity basis, by reference to a Statement of Costs for Summary Assessment which seeks the total sum of $227,655.

89.  Mr Wong suggests that a contribution towards costs would be appropriate. On the half of the Defendant he accepts that the time spent with ‘client’ should be fully recovered against the Defendant, in the cost of around $15,000. But taking into account the other factors mentioned above, including that the delay has undermined the utility of these proceedings, he invites an appropriate costs order which does allow the Defendant to draw a line beneath previous events.

90.  In all the circumstances, it seems to me that the appropriate costs order to make is by way of a contribution in the sum of $50,000.