LOU TIT MAN v. SECRETARY OF JUSTICE

CACV 539/2018

[2018] HKCA 1004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 539 OF 2018

(ON APPEAL FROM HCMP 2931/2015)

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J U D G M E N T

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Hon Pang JA (giving the Judgment of the Court) :

1.  On 31 August 2018, after a 12-day trial before Andrew Chan J (‘the Judge’), the appellant and his four co-respondents were found guilty of criminal contempt of court for interfering with and/or impeding the due execution of an injunction order made by Thomas Au J on 10 November 2014.  For this infraction, the appellant was sentenced on 26 October 2018 to 4 months’ imprisonment, which sentence he seeks to appeal vide his Notice of Appeal dated 30 October 2016.[1]

THE RELEVANT PARTIES

2.  The proceedings against the appellant and his co-respondents, namely HCMP 2917, 2918, 2925, 2929 and 2931 of 2015, heard together, were but part of the Secretary of Justice’s application to commit for criminal contempt some of the participants of what is known as the Occupy Movement, as it took place across sections of Argyle Street, Tung Choi Street and Portland Street in Mongkok.  Together with 12 other such summonses against an equal number of different individuals,[2] all of which were dealt with by the Judge, these proceedings are what counsel for the appellant has conveniently called the ‘minibus cases’. They are so dubbed because it was in defiance of the injunction order obtained by Chiu Luen Light Bus Company Limited to have a section of the occupied area cleared, that the Secretary had sought their committal.[3]

UNDISPUTED FACTS

3.  The facts and circumstances leading to and during the execution of the said injunction order were as they appear in the judgment of HCMP 2916 and 2923 of 2015,[4] now reported as Secretary for Justice v Cheng Kam Mun (No 3) [2017] 2 HKLRD 768 (‘the Cheng judgment’).  This is how the Judge described them insofar as it concerns the day of the execution, 25 November 2014.  They are undisputed :

“ 12. At about 8:00 am, Sergeant Li Kwong (PW1) set up …… loudspeakers and …… metal stages …...

13. Between 9:20 am and 9:26 am, in front of the barricades at Nathan Road near the junction of Argyle Street, Assistant Chief Bailiff Ms Chim Fung-ling (PW2) accompanied the plaintiff’s legal representative to make the following announcement through the loudhailer in the following terms :

……

14. From about 9:25 am to 9:30 am, Senior Inspector of Police Cheung Kin-pan (PW3) stood on a metal stage at Argyle Street junction Nathan Road and repeatedly made public announcements to the obstructing crowd at Argyle Street through the PA System. He said that the police was carrying out an operation to assist the bailiff to clear away the obstacles at Argyle Street in accordance with the court order but not including those solely on Nathan Road. PW3 also repeatedly advised the obstructing crowd to take away their personal belongings and leave the scene in an orderly manner following the instructions of the bailiff, and not to obstruct the bailiff from performing their duty in accordance with the court order.

15. Between 10:15 am and 10:16 am, bailiffs and the plaintiff’s legal representative and agents returned to the barricades at Argyle Street. Acting Assistant Chief Bailiff Mr Yu Tak-shun (PW4) announced through the loudhailer that the injunction order would be executed immediately and clearance action would be taken accordingly.

16. At about 10:16 am, 11:48 am and from 12:13 pm to 12:22 pm, the agents of the plaintiff made several attempts to clear the barricades and the tents located within the Area. Verbal warnings were given by PW2 on a number of occasions when protestors interfered with or impeded the operation during the attempts. Clarification was made by the plaintiff’s solicitors at the scene through the loudhailer that human beings refusing to leave the Area would also constitute obstruction under the court order.

17. In the meantime, PW3 repeated the public announcements at the metal stage at Argyle Street junction Nathan Road from 11:55 am to 12:00 pm.

18. At about 12:25 pm, the situation became too chaotic and the bailiffs were prevented from executing the injunction order. In this light, Chief Bailiff, Mr Kwan Sek-nam Sunny (PW5) made a formal request to the police for assistance. Almost at the same time, PW2 gave yet another verbal warning to the crowd.

19. At about 12:26 pm, PW2 warned the obstructing crowd in the Area again that they should not obstruct the bailiff to carry out its duties in execution of the court order.

20. At about 12:46 pm, PW2 together with other bailiffs and the agents of the plaintiff reached the section of Argyle Street outside the Mongkok HSBC Centre. Further clarification of the court order was made by the plaintiff’s solicitors in response to purported queries by the crowd.

21. At about 1:09 pm, PW5 (who was at the section of Argyle Street outside the Mongkok HSBC Centre and about to reach the section outside ‘Little Sheep’) indicated to the obstructing crowd that they could have 30 minutes to take away the materials. At the same time, PW2 gave another warning to the obstructing crowd in the Area requesting them to leave with their belongings packed.

22. At about 1:50 pm, the plaintiff’s agents and bailiffs formed a check line with police officers following them from behind. Afterwards, the check line moved gradually towards Portland Street along Argyle Street with the view to clearing the Area in execution of the injunction order. However, the way was blocked by reporters and masked crowd who were facing the check line. PW2 requested the reporters and the crowd to disperse through Portland Street. However, instead of dispersing, some members of the crowd moved towards the check line thereby deliberately obstructing the bailiff in its attempt to clear up the Area.

23. At about 2:25 pm, whilst being stalled by the obstructing crowd at the check line, PW2 announced the gist of the injunction order and requested the obstructing crowd to leave through Portland Street. Immediately afterwards, PW2 made a further warning to the obstructing crowd that their conduct had obstructed bailiffs in the execution of their duties and in doing so they might commit the offence of contempt of court. The police would be requested to take arrest actions.

24. At about 2:35 pm, PW2 requested the police to take immediate action. Therefore, the police started to take part in controlling the crowd at the scene whereas all bailiffs retreated behind the check line. At the same time, the agents of the plaintiff continued removing the barricades where permissible. The crowd however continued their obstruction by deliberately remaining in the Area confronting the check line and refusing to leave.

25. Immediately afterwards, Chief Inspector of Police Lam Chi-yuen (PW6), who was in the check line, issued a verbal warning to the obstructing crowd in Chinese and English in the following terms :

‘ ……

This is a Police warning to the crowd in front of me. The bailiffs of the High Court are now clearing and removing the obstructions here in accordance with an order / orders of the High Court. Copies of the order(s) is / are displayed nearby and has/have been published in the newspapers. Bailiffs / solicitors acting for the plaintiff(s) have explained the gist of the court order(s) here. Any person who obstructs or interferes with any bailiff or person assisting him in enforcing the High Court order(s) may be in breach of court order(s) and obstructing administration of justice. Such conduct may constitute criminal contempt of court and an offence of Resisting or Obstructing a public officer under section 23 of the Summary Offences Ordinance (Cap 228). Either of these may result in imprisonment and a fine. Furthermore, such conduct may also constitute other criminal offences. You must immediately stop your obstruction and interference with the bailiffs and those assisting them, otherwise you may be arrested and prosecuted.’

26. At about 2:44 pm, PW6 gave a final verbal warning to the obstructing crowd in Chinese and English in the following terms :

‘ ……

This is the final warning made by the Police to the crowd in front of me.  You must immediately stop obstructing or interfering with bailiffs of the High Court or those assisting them in clearing and removing the obstructions on the road.  If you do not stop immediately, police officers will arrest you for suspected criminal contempt of court, resisting or obstructing a public officer, and other offences which you are suspected to have committed, and police officers will use minimum force for making arrests if necessary.  No further warning of arrest will be issued before arrest action.’

27. At about 3:02 pm, PW6 told the police officers at the scene to first ask the obstructing crowd to leave voluntarily and then arrest those refusing to comply.

28. As a consequence of hearing the warnings, some members of the crowd left upon being urged or warned by police officers at various times.”

THE APPELLANT’S CONDUCT & SENTENCE

4.  As regards the role played by the appellant on the day in question, the following is what the Judge said in his judgment determining whether the appellant and his co-respondents were guilty of criminal contempt (the ‘Judgment on Liability’).  Note, in particular, the Judge’s comments in paragraphs 44 and 46, now partially italicised by us for emphasis :

“ 41. In Mr Lou’s case, video footage depicted his presence in the Area from approximately 9:26 am to 3:07 pm. Mr Lou was seen to be present, during most of the announcements made by the Plaintiff’s solicitors, the bailiffs and the police, either in front of the barricades or in close proximity to the Plaintiff’s agents and bailiffs. As early as 9:42 am, Mr Lou was seen shouting along with other protestors in demanding a genuine universal suffrage albeit his mouth was covered with a mask.

42. During the fourth announcement [11:56 am – 12:00 pm][5], Mr Lou was seen holding a yellow banner likewise that demanded genuine universal suffrage and standing on an elevated platform, the centre stage of the protest at the time, next to one fellow protestor who was making a broadcast to the crowd and seemingly demanding answers from the plaintiff’s solicitors. In that announcement, the police informed the crowd, in no equivocate terms not to obstruct the bailiffs in their duties and to leave the Area via Portland Street. Mr Lou should have no difficulty in understanding the demand.

43. At approximately 1 pm, Mr Lou was seen standing at a short distance away from the plaintiff’s solicitors who at the time was relaying the terms of the injunction order to the crowd once again. Even according to Mr Lou’s evidence in court which I have my strong reservation, he was fully aware of the fact that request had been made by the police for the protestors to leave the Area.

44. Mr Lou was then seen at 1:11 pm, wearing a pair of labour gloves in assisting the removal and dismantle of the elevated platform. The fact that Mr Lou was permitted in standing on the elevated platform with the yellow banner and assisting in the dismantle of the platform suggest to me that he could not have happened to be present in the Area by coincidence because he lived nearby as a street sleeper. Together with other protestors, wooden racks forming the elevated platform were taken away from the middle of Arygle Street. Had Mr Lou wanted to leave the scene, he could have done so after removing the wooden racks. Video footage however depicted his return to the Area despite all the opportunities opened to him to do otherwise.

45. At approximately 2:51 pm, Mr Lou was seen having a cake in the forefront of the police check line with his back facing the police. One can see the lady who distributed the cake to Mr Lou had no difficulty in manoeuvring herself through the crowd. Even as late as this juncture, Mr Lou could have left the Area with ease for in front of him was only a loose pack of protestors and journalists, yet he chose to stay. Not long, he was arrested by police officers at around 3:10 pm.

46. Mr Lou might not have been a rowdy protestor, however, his participation on the material day was by no means superficial.  Given the length of time that Mr Lou chose to remain in the Area, the extensiveness of his involvement and his knowledge about the intended clearance operation, I have no doubt that Mr Lou together with other fellow protestors decided deliberately to defy the request made by the plaintiff’s solicitors, the bailiffs and the police.  His presence and conducts with other fellow protestors made the job of the clearing and removing the obstructions substantially more difficult, if not impossible.  His acts and conducts were not only inherently likely to, but factually calculated to, delay if not to frustrate, the bailiffs and the plaintiff’s agents’ efforts.  I have no doubt that Mr Lou’s conducts amounted to a serious interference with the administration of justice.  He is therefore guilty of criminal contempt.”

5.  In his omnibus Reasons for Sentence, which covers the majority of the respondents in the minibus cases, the Judge further commented on the alleged depth and extensiveness of the appellant’s involvement in the events of 25 November 2014.  Again, he referred to the appellant’s unhindered access to the “elevated platform” in the middle of Argyle Street as a factor indicative of that involvement.  See paragraphs 42 to 44 of those reasons, with emphasis added :

“ 42. …… Mr Lou Tit Man was 69, unemployed at the material time. Mr Lou was born an orphan in Philippine. He came to Hong Kong at the age of 11. At the age of 19, Mr Lou became a street sleeper. Since then, he had been doing odd jobs till his 50’s. Currently he is receiving assistance from non-governmental organisations and the church. He was found guilty after trial.

43. His acts and conducts on the material day had been described in my judgment handed down on 31 August 2018. Essentially Mr Lou was seen to be present in the Area throughout the day. As mentioned in my judgment, his involvement was deep and extensive, beyond mere presence.

44. Mr Lou was seen standing on an elevated platform in the middle of Arygle Street and holding a yellow banner demanding universal suffrage when broadcast was being made to the crowd.  He was also seen in rendering assistance to the seemingly organiser of the protest in the removal of the elevated platform.  After its removal, Mr Lou was seen returning to the Area and continuing his defiance by standing at the forefront of the police check line till his arrest by the police.  Despite his extensive involvement, it is however accepted that Mr Lou did not engage himself in any unlawful and violent act.  Nor did he put up any resistance when being arrested by the police.”

6.  Finally, adjudging the appellant’s role to be “similar” to that of Cheng Kam Mun,[6] the Judge in effect applied the same starting point of 4½ months to both and reducing it by half a month to take account of his age and previous good character, sentenced the appellant to 4 months’ imprisonment :

“ 45. The role played by Mr Lou was similar to Mr Cheng Kam Mun. Unlike Mr Cheng Kam Mun, Mr Lou was found guilty after trial. The appropriate starting point for his sentence therefore is set at 4½ month imprisonment. In view of his age and unblemished record in the past, his sentence can be adjusted slightly downwards to one of 4 months’ imprisonment. Other than that, I do not see any other mitigating factors. As such, Mr Lou is sentenced to 4 months’ imprisonment for the contemptuous acts he committed on the material day.”

7.  Mr Cheng, we should add, was sentenced to 3 months’ imprisonment upon admitting liability. Presumably, he was given the customary discount of one-third for pleading guilty.

THE PRESENT APPEAL

8.  Ms Queenie Ng, who acts on behalf of the appellant here but not below, submits that the sentence of 4 months’ imprisonment was manifestly excessive and/or wrong in principle.  She submits that the two major pivots in the Judge’s reasoning, namely the appellant’s involvement was deep and extensive, and that his role was similar to Cheng Kam Mun’s, were both flawed and unsupported by evidence.  By that, Ms Ng does not mean to challenge the Judge’s findings as to what the appellant did, or did not do: she simply challenges the conclusions which the Judge derived from them.  It is Ms Ng’s submission that, in line with the majority of the minibus cases, the proper sentence for the appellant should be one of 1 to 2 months’ imprisonment, suspended for one year.

9.  For the Secretary of Justice, Ms Fanny Wong argues that having the unrivalled advantage of viewing and listening to all the evidence, the Judge should be left alone to form his own conclusion as to the seriousness of the appellant’s conduct.  Regardless of what some or most of the other contemnors might have received as punishment in the minibus cases, and whether they were generally comparable to the appellant in the circumstances in which they were held liable, she argues that the appellant’s contempt was sufficiently serious in itself to merit an immediate custodial sentence of 4 months’ imprisonment.

DISCUSSION

10.  Unless by some appeal or review mechanism all the minibus cases are brought before this Court for reconsideration, in which event the Court would be in a position to adjust some or all of the concerned sentences as it sees fit, it is not appropriate for us to consider the appellant’s sentence solely on its own merits.  Whether or not this sentence is as correctly determined by the Judge as Ms Wong for the Secretary seeks to argue, in order to maintain a degree of parity between all the contemnors, the correct approach must instead be to examine whether the appellant’s penalty falls comfortably within the range of sentences in the series and if not, whether there was proper justification for such a departure. This we have explained during the hearing with no good reply from Ms Wong.

11.  At the hearing, we have also identified HCMP 2925 of 2015, the case concerning one Yung Yiu Sing, as a reference point for submissions by counsel.  We did so because next to Cheng Kam Mun and the appellant, Mr Yung’s sentence of a fine of $15,000, plus 2 months’ imprisonment suspended for 18 months, was the heaviest amongst all the minibus cases, with the rest of them ranging from 1 month to 6 weeks’ imprisonment suspended for a year, with or without a fine.

12.  Mr Yung, we should add, was found guilty after trial.  His conduct in question was as stated in the relevant passages of the Judgment on Liability :

“ 32. …… In Mr Yung’s case, video footage depicted his presence in the Area between 9:54 am and 3:10 pm. Mr Yung was seen to be present in the Area from the second announcement onwards. He was standing in close proximity to the bailiffs and the police officers where the latter were making their broadcast. He was seen holding a loudhailer throughout the day and assisting others to make broadcast to the crowd. It is clear from the video footage that Mr Yung had no intention of leaving the Area whatsoever. The slogan on the back of his T‑shirt (寧鳴而死，不默而生) indicated his intention and described his involvement beyond doubt.

33.   After the first police warning, Mr Yung had ample opportunities to leave the Area but decided against doing so.  Mr Yung could have left the Area as late as 2:57 pm with ease.  His decision to remain at the front whilst holding a loudhailer demonstrated his determination to stay in the Area.  Again, his presence was not only inherently likely to, but factually calculated to, delay if not to frustrate, the bailiffs and the Plaintiff’s agents’ efforts …....”

13.  In the Reasons for Sentence, it was further stated :

“ 24. …… Yung Yiu Sing was 19 and a social work student of the Hong Kong College of Technology at the material time. He now works for a non-governmental organisation as an officer on a part‑time basis …...

25. Mr Yung was found to be present in the Area between 9:54 am and 3:10 pm. He was seen holding a loudhailer and assisting others to make broadcast to the crowd throughout the day. Mr Yung has a clear record and was not affiliated to any political party. In mitigation, it was submitted that the T-shirt Mr Yung wore was designed by the Social Work Department of his college whereas the loudhailer was on loan from the Hong Kong Federation of Students.

26. The role played by Mr Yung was not confined to mere presence.  He assisted others in making broadcast to the crowd which in turn caused wholly unnecessary delay in the clearance operation.  It is however accepted that when being arrested, Mr Yung did not put up any resistance.  Bearing in mind the sentences imposed on others who had committed similar activities, Mr Yung will be fined $15,000 and given an imprisonment term of 2 months but suspended for 18 months …...”

14.  From Mr Yung, the parties were directed back to the case of Cheng Kam Mun to see what underlying facts it was which prompted the Judge to adopt the high starting point of 4½ months in that instance.  They were as found in the Cheng Judgment :

“ 44. …… Mr Cheng was at the material time 26. He was employed as an assistant to one Legislative Councillor and making $15,000 a month.

45. It can be seen from the police video that Mr Cheng had been found in the Area for a prolonged period of time. He was seen to be carrying a yellow banner and also an amplifier at different stages. He was seen wearing a mask and a hood but his face and profile could clearly be seen.

46.      Judging from the period of time that he stayed at the Area and the paraphernalia that he carried, it can hardly be disputed that his involvement in the occupation, thus his conduct in contempt, was extensive and deep.  There is little doubt that he was involved in the organisation of the occupation of the Area.  His conduct constituted a flagrant defiance of the Injunction Order on the day in question.”

It was agreed by both counsel all that being “involved in the organisation of the occupation of the area” is the one feature which readily distinguishes Mr Cheng from the rest of the contemnors, the appellant included.

15.  Having heard submissions on the above two cases, in the course of which comparisons were also made with some of the other minibus cases in less but varying degrees of seriousness, it seems to us clear that the appellant’s sentence was anomalous. It is so because, on one hand, the appellant was not an organiser, yet he was effectively sentenced as one (Cheng); on the other, his case was hardly distinguishable from the next most serious one in sentence, yet the next most serious offender was met with a much lighter penalty that is completely different in nature (Yung).

16.  In short, an unduly strenuous inference had been drawn against the appellant based on his use and dismantling of the “elevated platform”, plus it is hard to see how wearing a slogan-loaded T-shirt and broadcasting throughout the day with a loudhailer on loan from the Hong Kong Federation of Students, as in the case of Mr Yung, could be regarded as more superficial and less extensive than what the appellant did on 25 November 2014.  On these two matters, we think the Judge had erred.

DISPOSAL

17.  For the above reasons, we will allow the appellant’s appeal.  Given he had already spent 13 days in custody before obtaining bail, and seeing no practical value in engaging in an exercise on what his appropriate sentence should be, we will quash his sentence of 4 months’ imprisonment and substitute it with a term of imprisonment that would enable his immediate release.

[1] By his Amended Notice of Appeal dated 2 November 2018, the appellant abandoned his appeal against liability.

[2] HCMP 2916, 2919, 2920, 2921, 2922, 2923, 2924, 2926, 2927, 2928, 2930 and 2032 of 2015.

[3] This is in order to differentiate them from the ‘taxi cases’, arising from an injunction order obtained by the Hong Kong Taxi Association and Taxi Drivers and Operators Association, for the same purpose, but which was executed a day later in an adjoining section of the occupied location. 

[4] See footnote 2.  These were the first minibus cases to be heard by Andrew Chan J.

[5] See paragraph 36 of the Judgment on Liability.

[6] See paragraph 3 of this judgment.