SECRETARY FOR JUSTICE v. OCEAN TECHNOLOGY LTD t/a CITIZENS' RADIO AND OTHERS

hcmp 71/2008

in the high court of the

hong kong special administrative region

court of first instance

MISCELLANEOUS PROCEEDINGS NO. 71 OF 2008

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RULING AS TO LIABILITY

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1.  By Notice of Motion dated 18 January 2008, the Secretary for Justice has sought orders finding each of the respondents to be in contempt of court and visiting upon each an appropriate penalty.  The contempt, it is said, arises out of and constitutes the knowing and intentional defiance of a prohibitory injunction issued by this court on 10 January 2008.  The injunction prohibited the respondents from continuing to make unlicensed radio broadcasts via a radio service called Citizens’ Radio.

2.  The history of how the injunction came to be issued may briefly be described as follows. 

3.  In or about 2005, the respondents began to make radio broadcasts under the name of Citizens’ Radio.  They were seeking to promote awareness of fundamental human rights.  In 2005, after the service had commenced, an application was made for a licence.  The application was refused.  The respondents were of the view that the statutory licensing provisions infringed their constitutional rights of freedom of speech.  They therefore continued to make the broadcasts. 

4.  Criminal proceedings were instituted against the respondents for making unlicensed broadcasts and heard in the Magistracy.  When the proceedings commenced, the respondents made an application to have the charges dismissed on the basis of their unconstitutionality.  The magistrate found for the respondents.  However, the magistrate was persuaded by the prosecution to suspend his ruling so that the matter could be determined by a higher court.

5.  The following day, 9 January 2008, the Secretary for Justice made his application for an injunction prohibiting further broadcasting.  The application was made ex parte but on notice to the respondents so that they were able to attend the hearing and make representations.  The injunction that was sought was an unusual one, indeed it may be described as exceptional.  What was sought was a civil injunction in aid of the criminal law.  As it was, Fung J, who heard the application, was prepared to grant the application for an injunction but for a limited period only, the Secretary being able to return to court to seek an extension.

6.  The respondents, however, had a forum arranged at which their radio service was to be used to issue a rallying cry for a march for universal suffrage.  They made the decision that, despite the injunction, they would still broadcast.  In the result, all of the respondents accept, first, that they were aware of the terms of the injunction and, second, in making the broadcast at the forum they were acting in breach of the injunction.  On the part of each, this amounted to an admission of contempt.

7.  In court this morning, each of the respondents has explained why he felt compelled to act in the way he did.  Each has said that, in seeking the lawful operation of a community radio service and having that desire frustrated, his conflict was not with the court but with the Government.  However as a result of the Government’s oppressive conduct (as each saw it) which resulted in the granting of the injunction, each felt that they had no choice other than to pursue a limited course of civil disobedience.  Accordingly, insofar as their actions may have amounted to a breach of the injunction, the respondents have accepted that they have been in contempt but have stressed that they had no intention to directly disobey the court and were not motivated by any malice towards it. 

8.  The motives of the respondents are understood but, the injunction having been granted, there was a duty on the respondents to strictly observe the terms of that injunction until it was discharged.  While it is accepted that there was no malice in the actions of the respondents, contempt of court does not require proof of actual malice.  Equally, the fact that a person acts in good faith is no defence although it is of course relevant in terms of mitigation. 

9.  Hong Kong adheres to the rule of law.  In the present context, this means that every resident – from those filled with the most noble ideals to those seeking only the most menial advantage – are governed by and bound to the operation of the law.  Whatever their motives, the respondents understood that, in accordance with the rule of law, they had an obligation to obey the injunction.  Their decision not to do so has constituted a contempt of court.

10.  By way of a postscript it should be said that the injunction issued by Fung J did come back before the court for consideration a week after its issue.  On this occasion, I heard the matter and refused to extend the injunction.  However, at the end of the judgment, I said the following which must still hold good:  

“…while I have declined to extend the injunction, the fact remains that on 10 January of this year Fung J saw fit for a limited period of time to grant that injunction.  If it is shown that any of the defendants have acted in contempt of that injunction they will be held accountable.  I say that because, unless the integrity of our judicial system is honoured, this court will be unable to afford the very protection that the defendants themselves have sought from it.”

RULING AS TO PENALTIES

11.  In my ruling given yesterday, I found that the respondents, by breaching an injunction of this Court, had placed themselves in contempt of court.  In coming to that decision, I set out in some detail the highly unusual circumstances in which the decision of the respondents to breach the injunction was made.

12.  In this second ruling it is for me to determine the appropriate penalties.  In doing so, as a first step at least, it is pertinent to be reminded of certain of the circumstances to which I have referred in my earlier ruling.

13.  It is to be remembered that, when the respondents were prosecuted for making unlicensed broadcasts, they challenged the statutory provisions under which they faced prosecution as being unconstitutional.  The magistrate found in their favour, ruling that the licensing provisions were accordingly of no force or effect.  The respondents (understandably) saw that as a victory which empowered them to continue their radio broadcasts.  These broadcasts, it is to be emphasized, were not made for profit.  They were made, as the respondents saw it, to promote and protect the fundamental freedoms enjoyed by all Hong Kong residents.  As it was, however, the magistrate was persuaded by the prosecution to suspend his ruling of non-constitutionality to enable an appeal to be made. 

14.  What then, at that moment, was the situation?  What can be said is that the respondents had not at that time been convicted of making any unlicensed broadcasts.  They remained of the view, with some backing from the decision of the magistrate, that the broadcasting provisions were unconstitutional and could therefore be ignored.  However, if they were to continue making broadcasts, they would do so at the risk of further criminal prosecution.

15.  Matters however took on greater complexity when the Secretary for Justice made an urgent ex parte application –on notice to the respondents – to obtain an injunction from this court to restrain the respondents from making further radio broadcasts. 

16.  As I said in my previous ruling, the application was an exceptional one.  The relevant statute made it a criminal offence to make unlicensed radio broadcasts.  The Secretary for Justice, however, felt it necessary to invoke the assistance of the civil courts in aid of the criminal law.

17.  Fung J, who heard the application, was prepared to grant an injunction but only on a temporary basis, that is, until some seven days ahead.

18.  The respondents had planned a public forum, a forum to promote free speech and to call for a march.  In light of the fact that, as they saw it at least, they had received a ruling that the licensing laws were unconstitutional and, being of the view that the government had been acting oppressively to deny them the fruits of that ruling, the respondents determined to make a radio broadcast, as planned, at the forum.

19.  As events transpired, when the Secretary for Justice attempted to renew the temporary injunction, I refused that application.  In coming to this decision, I took into account that the jurisdiction enjoyed by the civil courts to aid the criminal law was only to be used exceptionally and found that it was simply not necessary in the present case. 

20.  As to why civil injunctions in aid of the criminal law were only to be granted in exceptional circumstances, there is authority to the effect that one of the reasons is the fear that it will expose a defendant to far greater penalties than those prescribed for transgression of the criminal law itself.  That is the predicament in which the respondents now find themselves, certainly as far as payment of legal costs are concerned: a matter to which I shall turn later in this ruling.

21.  In the present case, what must be understood therefore is that, although a civil injunction was granted, it was not granted to aid a private party to civil litigation.  It was granted to the Secretary for Justice who was acting to protect the broader public interest.  More than that, the public interest that was to be protected went directly to the enforceability of certain statutory provisions which were themselves at the time being challenged as being unconstitutional.  It is within that context, in my judgment, that the culpability of the respondents needs to be examined.

22.  At the outset let me say that, as events transpired, there is no suggestion that the breach of the injunction caused any harm to any person.  It was also limited in extent.

23.  The respondents are committed social activists.  I have no doubt that at the time they were acting as their beliefs and consciences dictated.  I can also understand their frustration at the turn of events.  But, as Hoffmann LJ observed in Department of Transport v Lush (unreported: 29 July 1993 Court of Appeal, Civil Division):

“… the law cannot allow obedience to its orders to be a matter of individual choice even on grounds of conscience.”

24.  The respondents have emphasized that the stand they took was against the Government and not against this court.  There was no intention of any kind to act in contempt of, or in any way to be contemptuous of, this court. 

25.  Without in any way sacrificing the principles which they espouse, the respondents have accepted that they were in error when they made the decision to disobey the injunction.  It is an error they now regret.  A cynic may say that is perhaps understandable.  But importantly, it is an error in respect of which each has apologized.  Mr Jat Sew Tong, leading counsel for the Secretary for Justice, has submitted that there has been no genuine contrition on the part of any of the respondents and that their contempt has not therefore been purged.  I do not agree.  I am satisfied that the respondents have been genuinely amazed at any suggestion that they acted with malice towards this court and, insofar as they accept what they did at the time was in disobedience of the injunction, they have freely admitted that fact.  They have acknowledged their error and made an apology in respect of it.

26.  In civil contempt, the prime consideration, in assessing an appropriate penalty, is the need to demonstrate to litigants that orders of court must be obeyed.  The civil courts are filled with people who believe passionately in their particular cause.  But, to refer back to the words of Hoffmann LJ, if each was permitted to disobey orders handed down by the courts because such orders were prejudicial to their cause or because, they believed them to be incorrect in law or morally wrong, it would be the beginning of the breakdown of civil society.

27.  In considering penalty, I made it plain during the course of submissions that I did not think that committal by way of imprisonment would be appropriate in this particular case.  I came to that view for a number of reasons.  First, as I have said, I am satisfied that all of the respondents have purged their contempt.  Second, in view of this, I believe that a degree of acknowledgment must be given to the highly unusual, perhaps unique, circumstances in which they committed their breach of the injunction, recognizing that, however ill-informed their views, they believed at the time that they had secured a victory in the courts which gave them, at the very least, a moral basis for their acts of civil disobedience.

28.  In my judgment the justice of the matter would be met by a fine imposed on each of the respondents.  But, before considering the amount of any such fines, there is another issue which must be determined, that is, the issue of costs.

29.  In the present case, in employing the services of a senior counsel of eminence together with a junior, the Secretary for Justice has incurred costs of approximately $1.44 million.  If I was to order payment of the Secretary’s costs on an indemnity basis, the respondents would, jointly and severally, be required to pay that full amount.  Even on a party and party basis, the normal basis for taxation of costs, the Secretary for Justice is of the view that his bill would be approximately $1.37 million.  Remembering that the bill covers only the institution of the present contempt proceedings, it is a very substantial bill indeed.  To those not used to the high level of fees charged in this jurisdiction, it may appear alarmingly high, so much so that to order the respondents to pay a bill of that magnitude may itself appear entirely disproportionate to the level of their culpability.

30.  Determining the issue of costs has not been the easiest matter.  The request for payment of costs on an indemnity basis made by the Secretary for Justice cannot simply be dismissed.  If the costs are due, it may be said that it is irrelevant that, on any commonsense approach, the amount of money involved is way beyond anything that these respondents are capable of paying.  However, after some anxious consideration, while I appreciate that in civil contempt proceedings costs almost always follow the event and are ordered almost always on an indemnity basis, having regard to the particular circumstances of the present case I do not intend to order the respondents to pay all of the Secretary for Justice’s costs on that basis.  To the contrary, I intend to order that they pay only a contribution to those costs.

31.  In coming to this determination, I have proceeded on the basis that costs are always – as a matter of basic principle – in the discretion of the court.  Whether costs are to be awarded and, if so, the level of those costs, is therefore always a matter to be determined in context.  Following from this, while I appreciate that the Secretary for Justice has instituted the present proceedings for the benefit of the court to ensure that its orders are adhered to, I have also taken into account that, in obtaining the original injunction against the respondents, the Secretary was acting as a representative of the public interest and has acted throughout, including in these proceedings, as a representative of the public interest.  As such, the public interest itself must be one of the materially determining factors when considering the issue of costs.

32.  In the present case, the respondents chose to act in the context of criminal law proceedings when they chose to operate their radio broadcast service in the knowledge of a possible prosecution.  It was the Secretary for Justice who chose to bring matters into the civil arena when, in aid of the criminal law, he sought his prohibitory injunction.  This is a case, therefore, where, because of its particular facts, the court must be guided in the public interest by broader issues of fairness.

33.  In the final analysis, therefore, I am satisfied that the justice of the matter would be met by an order that each of the respondents is to contribute a payment of $50,000 towards the costs of the Secretary in bringing these proceedings.

34.  I turn lastly to the penalty of a fine.  I am of the view that, the culpability of each is essentially the same.  I am also of the view that, if only on terms as to payment, each is capable of meeting the fine that I have assessed.  I am of the view that in respect of a fine, $10,000 for each respondent is appropriate. 

35.  I emphasize however that each fine, is to be taken together with each contribution towards costs, to bring home to these respondents, and to the public at large, that orders of this court will and must be obeyed and that those who refuse to do so, even when acting according to the dictates of their conscience, will be held accountable.

36.  To summarise, each respondent is fined $10,000 and in addition is ordered to contribute $50,000 to the legal costs of the Secretary for Justice.