SECRETARY FOR JUSTICE v. HUI CHI FUNG

HCMP 830/2021

[2022] HKCFI 839

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 830 OF 2021

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J U D G M E N T

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Introduction

1.  This is a criminal contempt application, pursuant to leave granted on 24 September 2021, by the Secretary for Justice for the committal of the Respondent in breaching (i) the bail conditions and / or undertaking to the Court in relation to four criminal cases, namely DCCC 958/2020, WKCC 3842/2020, WKCC 4002/2020 and 4003/2020 in that the Respondent left Hong Kong and failed to surrender to custody at the time appointed by the Court and ; (ii) giving false or misleading information through his solicitors Messrs Ho Tse Wai & Partners to the Police and the Court in that the Respondent misled the Police and the Court into believing that he would return to Hong Kong on 4 December 2020, after a purported duty visit to Denmark. 

2.  The relief sought in the Originating Summon against the Respondent includes that the Respondent be committed to prison and / or fined for interfering with and / or impeding the due administration of justice. 

Background

3.  In DCCC 958/2020, the Respondent, together with other three defendants, faced three charges.  He was granted bail in the Magistrates’ Court below.  At the District Court hearing on 26 November 2020, the Respondent’s bail was extended on conditions, among others, that: (i) he might only leave Hong Kong for official business provided that he would furnish to the Police with an itinerary no less than 72 hours prior to his departure and; (ii) he would surrender to the Court on 26 January 2021, the next hearing date.  The Respondent gave an undertaking to that effect. 

4.  In WKCC 4002 and 4003/2020, the Respondent was the sole defendant and faced a total of four charges.  He was granted bail on 19 November 2020 in the Magistrates' Court.  His next court appearance would be on 11 February 2021.  The Respondent also gave an undertaking to surrender to court on the return date. 

5.  In WKCC 3842/2020, the Respondent, together with seven other defendants, faced two charges.  He was granted bail on 6 November 2020 in the Magistrates’ Court.  Likewise, his bail was extended on the same terms to 11 February 2021, the next hearing date.  The Respondent also signed an undertaking to surrender to court on the return date.

6.  On 25 November 2020, one day prior to his District Court appearance, the Respondent wrote, through his solicitors to the Department of Justice, stating that since he had been invited to go to Denmark for official business, he would like to request the Court to lift his travelling restriction[1].

7.  On 27 November 2020, the Respondent’s solicitors provided to the Police an itinerary regarding the Respondent’s trip to Denmark[2]. Based on his representations, the Respondent’ s travelling restriction was lifted. As a result, the Respondent left Hong Kong on 30 November 2020.  Subsequent investigation revealed that the Respondent’s family had purchased one-way tickets to London on 28 November 2020 and departed Hong Kong on 2 December 2020. 

8.  The Respondent failed to appear both on 26 January and 11 February 2021.  Consequently, warrants for his arrest were issued. 

Laws on Contempt

9.  In order to find the Respondent liable for criminal contempt, this Court must be satisfied that the Respondent’s conducts were conducts calculated to prejudice or interfere with the due administration of justice as a continuing process and are inherently likely so.  It is important to note at the beginning that the Respondent’s mere failure to appear in court to answer his bail is not itself sufficient for criminal contempt.  Additional conducts which amounted to an interference with the due administration of justice must be involved. There must also be a real risk that public confidence in the due administration of justice would be undermined.  The Applicant must therefore prove to the satisfaction of this Court that both the actus reus and the mens rea in criminal contempt have been met.  The standard is one of beyond reasonable doubt.

10.  In respect of the actus reus, the Applicant must prove that the Respondent provided to the Police or the Court, documents, in this case invitation letters and itinerary, which he knew to be false, in supporting of his duty visit.  In respect of the mens rea, although there is ongoing legal debate as to whether a specific intent to interfere with the administration of justice is required[3], it is however not necessary for this Court to decide whether a specific intent (ie whether the Respondent intended to interfere with the administration of justice) or a basic intent (ie whether the Respondent provided false information to the Police intending that the travelling restriction would be lifted) will be sufficient, as the two can be regarded as amalgamating  into one, given the nature of this case. 

11.  A party is guilty of criminal contempt of knowingly putting forward a falsehood to deceive the Court and that can also be regarded as constituting a direct interference with the administration of justice[4].

Determination

12.  Having perused all the evidence presented to this Court, there can hardly be disputed in this case that the Respondent did furnish to the Police or the Court false documents ie invitation letters and itinerary.  Letters from his solicitors to the Department of Justice clearly demonstrated all the requests and representations made on behalf of the Respondent.  The Police demanded an itinerary from his solicitors and the latter complied accordingly.  There is nothing to suggest his solicitors were acting without the Respondent’s instruction.  

13.  There is also no dispute that the Respondent was fully aware of the content of his undertaking and / or his obligations to surrender at the date and time as stipulated by the Court since he had affixed his signature on all the bail documents.  There is equally no question that the Respondent breached his undertaking and obligations deliberately.  His deliberateness can be discerned from the following evidence. 

14.  As a result of the requests and representations made to the Department of Justice regarding his purported duty visit to Denmark and the provision to the Police of (i) copy of invitation letters from the purported Danish Parliament dated 20 October 2020 and 18 November 2020; (ii) copy of return electronic air-tickets between Hong Kong and Copenhagen; and (iii) copy of an itinerary or program of his purported duty visit[5], the Respondent were allowed to leave and did leave Hong Kong on 30 November 2020. 

15.  After the Respondent’s departure from Hong Kong, Facebooks posts published by the Respondent indicated that he had formed the intention of leaving Hong Kong by way of this pre-arranged bogus duty visit at a much earlier time.  The Respondent colluded with certain persons in Denmark, one Mr Storgaard among them, in making all the necessary arrangements in orchestrating his departure.  Facebooks posts published by Mr Storgaard confirmed the so called duty visit was of nothing other than a smoke screen[6].

16.  All the Facebook posts, interviews with newspaper[7] published by the Respondent and Mr Storgaard, together with the departure of the Respondent and his family members, and his failure to surrender to court on the appointed date were of no coincidence, they pointed to the irresistible inference that the Respondent intended to evade court proceedings by furnishing false documents to the Police and the Court.  It was a premeditated attempt to flee the jurisdiction.  All the foregoing gave rise to the inevitable conclusion that the Respondent knowingly misled the Court into lifting the travel restriction.  

17.  In view of the Respondent’s deliberate deception to the Court, it makes little distinction in the present case whether a basic intent or a specific intent is required.

18.  In addition to the above, the Respondent also posted on Facebook that he had received notification from the Police regarding the present contempt proceedings.  The Respondent continued to display his displeasure or dissatisfaction towards the legal system in Hong Kong.  These posts further reinforced the fact that his conducts on absconding were conducts calculated to deceive the Court.

19.  The Respondent was served with all the relevant court documents on 22 October 2021 regarding the present application.  On 23 October 2021, the Respondent confirmed in his Facebook post that he was fully aware of the present proceedings[8]. He proclaimed publicly his disdain for the integrity of this Court.  It is clear that he has made a conscious decision not to be present. 

20.  The Respondent not only breached the bail conditions and undertaking given but also provided false documents to the Police and the Court.  The sound administration of justice demands that the Respondent respected his bail conditions and undertaking.  For obvious reasons, his failure to appear in court inevitably caused delay and disruption to the court proceedings.  I am satisfied beyond reasonable doubt that the Respondent’s conducts were conducts calculated to interfere with and / or impede the due administration of justice.  At a result of his deception and abscondment, there is also a real risk that public confidence in the due administration of justice will be undermined. 

21.  Having considered all the circumstances of the case and for all the reasons stated above, I am satisfied that the Respondent is guilty of criminal contempt. 

[1] Tab 19 of the Hearing Bundle

[2] Tab 24 of the Hearing Bundle

[3] Secretary for Justice v Wong Ho Ming, FAMV No. 55 of 2018 [2018] HKCFA 62

[4] R v Weisz Ex p Hector MacDonald Ltd [1951] 2 All ER 408, applied in Secretary for Justice v Yuen Oi Yee Lisa (HCMP 2390/2008, 25 October 2010) 

[5] Tab 19 and 24 of the Hearing Bundle

[6] Tab 30 and 36 of the Hearing Bundle

[7] Tab 39 and 42 of the Hearing Bundle

[8] Tab 55 of the Hearing Bundle