SECRETARY FOR JUSTICE v. WONG CHI FUNG

Press Summary (English)

Press Summary (Chinese)

CACV 14/2018

[2019] HKCA 548

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 14 OF 2018

(ON APPEAL FROM HCMP NO 795 OF 2015)

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J U D G M E N T

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

A.  INTRODUCTION

1.  The respondent was one of the 20 contemnors who faced committal proceedings for obstructing the bailiffs /police officers in executing the Amended Injunction Order dated 21 November 2014 granted by Au J (as he then was) in HCA 2104/2014 on 26 November 2014.[1]  He admitted liability before Andrew Chan J (“the Judge”) who on 17 January 2018 sentenced him to 3 months’ imprisonment : see [2018] HKCFI 77, at [21] – [31].[2]  The respondent immediately appealed against sentence.  On 23 January 2018, this Court granted him bail pending appeal.[3]

2.  We heard the appeal on 3 April 2019[4]and reserved our judgment, which we now hand down. For reasons to be articulated below, we allow the respondent’s appeal, set aside the sentence imposed by the Judge and substitute it with a sentence of 2 months’ imprisonment.

3.  Essentially, we hold that :

(1)  Criminal contempt threatens the due administration of justice as a whole.  It presents a direct challenge to the rule of law, the very fabric and foundation of Hong Kong.

(2)  Because of the immense public interests involved in protecting the due administration of justice as an integral component of the rule of law, the sanction imposed on a contemnor is punitive in nature.  The court will ordinarily impose a deterrent sentence on the contemnor, with the dual aim of deterring him from reoffending and others from committing criminal contempt.  Put in another way, deterrence is ordinarily the primary consideration in sentencing a contemnor of criminal contempt.  Accordingly, a term of imprisonment is generally called for, although the court retains a wide discretion to impose other forms of sentence as it deems most appropriate in the overall circumstances of the case.  A term of imprisonment is particularly warranted where the interference of administration of justice is grave, contumelious and contumacious.

(3)  The respondent is punished for the criminal contempt that he committed on 26 November 2014, which he admitted and for which he apologized, when he intentionally, knowingly and deliberately interfered with the due execution of the Amended Injunction Order.  Any suggestion that he is punished because of his status or notoriety as a committed social activist or any other reason, whatever it might be, is entirely baseless and misconceived.

(4)  The respondent’s criminal contempt is grave, contemptuous and contumacious.  The Judge’s finding that his involvement was deep and extensive and that he played a leading role is amply supported by the evidence and is plainly correct.  As a grave and defiant breach of the Amended Injunction Order and a serious and deliberate obstruction of its execution, it is tantamount to a direct and frontal challenge to the court.  It is an affront to the court and must be met with a deterrent sentence.

(5)  None of the matters advanced by the respondent to explain his conduct, individually or collectively, mitigate his culpability and the seriousness of his criminal contempt in any substantial way.

(6)  Despite the respondent’s young age at the time of the criminal contempt and his personal circumstances, the only appropriate way of dealing with him is immediate imprisonment.  The Judge was correct in so sentencing him.

(7)  In order to maintain a degree of parity between all the contemnors, the correct approach is to examine whether the respondent’s penalty falls comfortably within the range of sentences imposed by the Judge in the series and if not, whether there was proper justification for such a departure.

(8)  The sentences imposed by the Judge on those contemnors who were of the respondent’s similar age were lighter, some of which were suspended.  The apparent disparity is readily explained by the Judge’s different findings on their involvement and role in interfering with the administration of justice.

(9)  In sentencing the respondent and Wong Ho Ming, the Judge was correct in treating them as the most serious contemnors in the series based on his findings on their culpability and the seriousness of their criminal contempt.  In imposing on them effectively the same term of imprisonment (in the respondent’s case, 3 months upon his admission of liability and in Wong’s case, 4½ months after trial), the Judge did not give weight to the respondent’s young age.  However, the respondent’s young age (18 at the time of contempt and 21 at the time of sentence) is clearly a relevant mitigating factor for determining the length of his imprisonment and is also a factor capable of distinguishing the respondent from Wong Ho Ming (who was 26 at the time of contempt and 29 at the time of sentence) insofar as the length of imprisonment is concerned.  When the Judge did not give any reason why he did not give weight to the respondent’s young age, we are unable to uphold his decision in this regard.

(10)  Having carefully considered the matter in the round, we take the view that proper weight should be given to both the respondent’s young age and personal circumstances in determining the length of his imprisonment.  After giving due weight to these matters and evaluating them against his culpability and the seriousness of his criminal contempt, the proper starting point of his imprisonment should be 3 months.  After deducting one-third on account of his admission, his acceptance of legal consequences and his apology to the court, which is the strongest mitigation, the sentence is reduced to 2 months.

(11)  We reject the respondent’s submission that a short custodial sentence (effectively 6 days) which would enable the respondent’s immediate release would in all the circumstances be a proportionate sentence.  For it does not truly and fully reflect his culpability and the seriousness of his criminal contempt.  And it does not comfortably fall within the range of sentences the Judge imposed in the series in the absence of any proper justification for such a departure.

B.  BACKGROUND

B1.  The respondent

4.  The respondent was born in October 1996.  He turned 18 at the time of the contempt of court and was 21 at the time when he was sentenced by the Judge in January 2018.  He is currently reading Social Science (Politics and Public Administration) at the Open University.  He also works as a personal assistant to one Legislative councillor, earning HK$5,500 per month.

5.  The respondent is a politically active young man.  In May 2011, when he was still a secondary student, he became the convenor of Scholarism, a secondary school student movement formed to oppose the Government’s proposal to introduce moral and national education as a compulsory school subject.  After Scholarism’s dissolution in March 2016, he and others founded a new political party called Demosistō in April 2016.  He remains a committed social activist to date.

B2.  The facts

6.  The facts leading to the committal proceedings against the 20 contemnors, including the respondent, arising from their breach and obstruction of the execution of the Amended Injunction Order were the same.  They had been set out in some details by this Court in Secretary for Justice v Wong Ho Ming [2018] HKCA 173.[5] For present purposes, we would adopt and repeat the Court’s narrative as follows :

“ A.  Background Facts

A1.  The Amended Injunction

3.  As part of the so-called ‘Occupy Movement’, large crowds of people had since September 2014 occupied significant portions of Nathan Road between Argyle Street and Dundas Street in Mongkok, Kowloon, which prevented the general public, to various extent, from using the public roads so occupied. Also affected were those taxi operators and taxi drivers who had to rely on normal vehicular traffic at the occupied areas for their livelihood.

4.  On 20 October 2014, Lai Hoi Ping (suing on his own behalf and on the behalf of all other members of Hong Kong Taxi Association) and Tam Chun Hung (suing on his own behalf and on the behalf of all other members of Taxi Drivers and Operators Association) (‘the Plaintiffs’) commenced proceedings in HCA 2104/2014. They made an ex parte application on notice for an injunction against ‘persons occupying portions of Nathan Road near to and between Argyle Street and Dundas Street to prevent or obstruct normal vehicular traffic from passing and repassing the occupied areas’ (‘the 1^st Defendant’). After hearing counsel, Poon J (as he then was) granted the injunction sought until the return date on 24 October 2014.

5.  At the same time, some other plaintiffs commenced HCA 2086/2014 and HCA 2094/2014, which respectively concerned other areas in Mongkok and Admiralty occupied by large crowds of demonstrators. Poon J also, upon their applications, granted similar injunctions until the same return date.

6.  On 24 October 2014, several named individuals applied and were allowed to be joined as additional defendants in all the three actions. All the plaintiffs applied for continuation of the ex parte injunctions and for directions for enforcement of the same. Their applications were opposed. Au J heard arguments on 24 and 27 October 2014 and then reserved judgment, while continuing the ex parte injunctions in the meantime. On 10 November 2014, the learned judge handed down judgment ordering all the ex parte injunctions to be continued (‘Injunctions Judgment’). The terms of the orders were subsequently finalized after a directions hearing on 13 November 2014 and amended by a judgment dated 21 November 2014.

7.  For HCA 2104/2014, the amended injunction order (‘Amended Injunction Order’) provided :

‘ (1)  The Defendants, and each of them, whether by themselves or agent or servant or howsoever, be restrained until trial or further order of the Court, from doing, any of the following acts, namely :-

(a)  Occupying portions of Nathan Road between Argyle Street and Dundas Street (‘the Area’) to prevent or obstruct vehicular traffic from passing and repassing the Area (‘Para 1(a)’);

(b)  Erecting, building or otherwise set up tents, canopies, barriers, barricades or other structures obstacles or obstruction, or doing any other act, to prevent or obstruct vehicular traffic from passing and repassing the Area; or

(c)  Obstructing or interfering with, or doing any other act which deters, the Plaintiffs through their agents properly authorised in writing from or in dismantling or removing barriers and other obstacles and obstruction in or from the Area (‘Para 1(c)’) (‘Para 1’).

(2)  The bailiff does take all reasonable and necessary steps to assist the Plaintiffs and its agents to effect the clearance and removal of the obstructions as provided in the Injunction Order (‘Para 2’).

(3)  The bailiff be authorized and directed to request the assistance of the Police where necessary (‘Para 3’).

(4)  Any police officer be authorized to arrest and remove any person who the police officer reasonably believes or suspects to be obstructing or interfering any bailiff in carrying out his or her duties in enforcing the terms of the Injunction Order, provided that the person to be arrested has been informed of the gist of the terms of the Injunction Order and this Order and that his action is likely to constitute a breach of the Injunction Order and this Order and obstruction of the administration of justice, and that he may be arrested if he does not desist (‘Para 4’).

(5)  Without prejudice to the provisions of the Police Force Ordinance (Cap 232) (including S 51 and S 52 thereof), any person so arrested by the police shall be brought before the Court, under lawful or legal processes, as soon as possible for further directions (‘Para 5’).’

8.  The amended injunction orders granted in HCA 2086/2014 and HCA 2094/2014 were similar in terms, including Para 4, save and except, for obvious reasons, the difference in the areas covered in Para 1 of the injunction.

9.  Some of the defendants in the three actions applied for leave to appeal against the injunction orders. Au J refused them all. They then applied to the Court of Appeal. Their applications were likewise all dismissed by the Court of Appeal (Cheung CJHC and Lam VP).^[6] In the judgment refusing the leave application by the 2^nd Defendant in HCA 2086/2014 dated 21 November 2014 (‘CA Judgment’), Lam VP clarified the requirements contained in the proviso of Para 4.^[7] As explained by his Lordship, ‘(a) informing the person concerned as to the gist of the injunction; (b) warning him that his action is likely to constitute a breach of the injunction; and (c) warning him also the possibility of his being arrested if he does not desist … are steps to be taken by the bailiff in the execution of his duty under the order and the person concerned will be given a last opportunity to comply with the order voluntarily… [These] are steps a bailiff would have to take before a case of obstruction or interference with the carrying out of his duties can be made out. Whether a police officer would like to repeat any of these steps before he exercises his power of arrest is entirely a matter for him to decide.’

10.  All the legal proceedings mentioned above including all the judgments handed down and orders made were widely covered by the local media, be it paper, electronic or internet.

A2.  Service of the Amended Injunction

11.  On 24 November 2014, service of the Amended Injunction Order was effected on the 1^st Defendant in the manner as provided for, namely, by way of advertisement in Sing Tao Daily and the Standard; and placing the same in a clear plastic envelope and attached to 11 different prominent locations at the portions of Nathan Road between Argyle Street and Dundas Street.

12.  Service of the Amended Injunction Order was also widely reported in the local media.

A3.  Execution of the Amended Injunction

13.  Prior to 26 November 2014, it was already widely reported in the local media that the Plaintiffs and the bailiff would take action to execute the Amended Injunction Order on that day.  As a matter of fact, the bailiff had on 25 November 2014 executed the injunction order granted by Au J in HCA 2086/2014 in respect of Argyle Street between the junction of Tung Choi Street and Portland Street. Such enforcement action was also widely covered in the local media.

14.  On 26 November 2014, the bailiff executed the Amended Injunction Order in the manner described below.

A3.1  Preparatory steps

15.  At about 8:00 am, Police Sergeant Li Kwong, (‘Sergeant Li’) together with six other police constables, set up six loudspeakers and two metal stages at Nathan Road junction with Argyle Street (northbound and southbound carriageways), and two loudspeakers at Nathan Road junction with Dundas Street (northbound and southbound carriageways) (‘the PA System’).  The PA System worked properly throughout the entire operation on 26 November 2014.

16.  Around 8:05 am, the Plaintiffs’ legal representatives and lawful agents, certain bailiff officers and police officers (‘the Execution Team’) gathered at Argyle Street, preparing for the execution of the Amended Injunction Order.

17.  Five rounds of announcements were then made at four different locations before actual steps were taken to execute the Amended Injunction Order.  The manner in which the announcements were made was similar.

A3.2  Announcements

(1)  First announcements (Argyle Street junction with Nathan Road)

18.  At about 8:40 am, Assistant Chief Bailiff Chiu Shuk Man (‘AC Bailiff Chiu’) made an announcement at the junction of Argyle Street and Nathan Road (near HSBC at No 675, Nathan Road).  Through the loudhailer, AC Bailiff Chiu explained to the crowd at the scene that the bailiff officers were there to enforce the Amended Injunction Order (‘the Bailiff’s First Announcement’) :

‘ 各位在場人士注意，我哋係司法機構執達事務組嘅執達主任。

根據高等法院案件編號2014年第2104號於2014年11月10日發出並於2014年11月21日修訂嘅禁制令，執達主任會協助原告人嘅合法代理人，清除及移走阻塞車輛在介乎亞皆老街與登打士街之間的彌敦道各部份正常交通運行嘅障礙物。請在上述範圍內嘅人士，立即收拾你哋嘅物品離開。

任何人士，如果作出任何阻礙執達主任執行職務嘅行為，將有機會觸犯藐視法庭罪，執達主任會要求警方協助作出拘捕行動。

以下時間會由原告人代表律師，宣讀禁制令嘅內容。’

The Plaintiffs’ legal representatives followed suit by making an announcement of the contents of the Amended Injunction Order through the loudhailer in the following terms (‘the Plaintiffs’ Announcement’) :

‘ 根據區慶祥法官於2014 年11 月10 日頒下並於2014 年11 月21 日修訂嘅法庭命令，要點為任何人均不得阻礙原告人嘅合法代理人清除及移走阻塞在介乎亞皆老街與登打士街之間的彌敦道各部份的正常交通運行嘅障礙物。

該法庭命令亦禁止任何人在上述範圍豎立或放置任何障礙物以堵塞該些入口及通道。

任何人不服從該法庭命令，有可能構成藐視法庭。

同時，法庭亦指示執達主任採取所有合理和所需嘅步驟協助原告人嘅合法代理人清除及移走該些障礙物。

在有需要時，執達主任可要求警方協助。

而當警方合理地認為或相信任何人正妨礙或阻礙執達主任履行本法庭命令，只要該等人士已獲悉

(1)  本法庭命令嘅要點；

(2)  佢咁嘅行動可能構成違反法庭命令及妨礙司法工作；

(3)  而如果佢仍然不停止咁嘅行動有可能會俾警方拘捕；

係咁嘅情況下警方有權拘捕或移走任何有關人士，並將被拘捕人士在切實可行範圍內儘快送到法庭上，作進一步嘅指示。’

19.  Shortly before 8:44 am, AC Bailiff Chiu made another announcement to the effect that the lawful agents of the Plaintiffs would execute the Amended Injunction Order and clear the obstacles at the Area within 30 minutes; and that the crowd was advised to obey the Amended Injunction Order and to leave the Area immediately (‘the Bailiff’s Second Announcement’).

(2)  Second announcements (Nelson Street junction with Nathan Road)

20.  At about 8:45 am, Acting Assistant Chief Bailiff Yu Tak Shun (‘AAC Bailiff Yu’) repeated the Bailiff’s First Announcement through a loudhailer near the junction of Nelson Street and Nathan Road outside Watson’s at No. 637 Nathan Road.  The Plaintiffs’ legal representatives then repeated the Plaintiffs’ Announcement at about the same location.  Shortly before 8:50 am, AAC Bailiff Yu repeated the Bailiff’s Second Announcement to the crowd.

21.  After the above announcements, the Execution Team marched down Nathan Road towards Dundas Street, during which, a crowd of people (including Mr Wong Chi Fung and Mr Wong) kept asking about the terms of the Amended Injunction Order and the details of the enforcement action.  In response, Chief Bailiff Kwan Sek Nam Sunny (‘Chief Bailiff Kwan’) informed them that the bailiff officers would soon announce the details and invited them to listen carefully to such announcements.

(3)  Third announcements (Shantung Street junction with Nathan Road)

22.  At about 8:51 am, AC Bailiff Chiu repeated the Bailiff’s First Announcement through a loudhailer at the junction of Shantung Street and Nathan Road.  The Plaintiffs’ legal representatives then repeated the Plaintiffs’ Announcement at about the same location, followed by AC Bailiff Chiu’s repetition of the Bailiff’s Second Announcement shortly before 8:56 am.

(4)  Fourth announcements (Dundas Street junction with Nathan Road)

23.  At about 9:05 am, AAC Bailiff Yu repeated the Bailiff’s First Announcement through a loudhailer at the junction of Dundas Street and Nathan Road.  Following that, the Plaintiffs’ legal representatives also repeated the Plaintiffs’ Announcement at about the same location.  AAC Bailiff Yu then repeated the Bailiff’s Second Announcement shortly before 9:10 am.

(5)  Final announcements (Argyle Street junction with Nathan Road)

24.  At about 9:49 am, the Execution Team was back at the junction of Argyle Street and Nathan Road near the barricades set up there.  At the time, ACC Bailiff Yu and AC Bailiff Chiu respectively announced, through the loudhailer, in Chinese and English, that the lawful agents of the Plaintiffs would immediately execute the Amended Injunction Order and clear the obstacles in the Area.  Following the announcements, at about 9:53 am, AC Bailiff Chiu requested the Plaintiffs’ legal representatives and lawful agents to clear the barricades (which consisted of Mills barriers, planks and other objects) in front of them.

A3.3  Clearance of the barricades

25.  During the clearance of the barricades near HSBC (at the junction of Argyle Street and Nathan Road), Mr Wong Chi Fung and Mr Wong kept asking through loudhailer about the identity of the Plaintiffs’ lawful agents, and quarreled with the Plaintiffs’ lawful agents, who wore red-and-white T-shirts and red caps for easy identification on that date.  The bailiff officers repeatedly requested both parties to keep calm.

26.  At about 9:59 am, part of the barricades at the junction of Argyle Street and Nathan Road had already been cleared by the Plaintiffs’ lawful agents.  At this juncture, there was a commotion in the crowd which cried out loudly and pushed against the Execution Team.  Assistant Chief Bailiff Chim Fung Ling (‘AC Bailiff Chim’) immediately advised the crowd (through the loudhailer) to keep calm and not to obstruct or impede the bailiff officers from carrying out their duties.  It was the case of the Secretary for Justice that during the confusion, AC Bailiff Chim was pushed; AC Bailiff Chiu’s sunglasses fell off to the ground; and AAC Bailiff Yu’s right shank was hit by a Mills barrier.

A3.4  Police assistance and action

27.  AC Bailiff Chim immediately made the following warning :

‘ 根據區慶祥法官於2014 年11 月10 日頒下並於2014 年11 月21 日修訂嘅法庭命令，要點為任何人均不得阻礙原告人嘅合法代理人清除及移走阻塞車輛在介乎亞皆老街與登打士街之間的彌敦道各部份正常交通運行嘅障礙物。

你嘅行為係會阻礙執達主任執行職務。如再繼續此行為，有可能觸犯藐視法庭罪，請你立刻停止。否則，我哋會要求警方協助去拘捕你。’

28.  Despite such warning, the crowd did not desist.  Chief Bailiff Choi Tak Ming (‘Chief Bailiff Choi’) hence formally requested the assistance from the police at about 10:00 am pursuant to Para 3 of the Amended Injunction Order.  Acting on such request, the police started to take charge of controlling the crowd and clearing the barricades.

29.  At about 10:05 am, Chief Inspector Lam Chi Yuen (‘CIP Lam’) issued a verbal warning through the PA System at Nathan Road near Argyle Street to the crowd in Chinese and English in the following terms (‘First Police Warning’) :

‘ 前面人群注意。這是警方發出的警告。高等法院的執達主任，正在此根據高等法院的命令，清除及移走路上的障礙物。高等法院命令的副本，已在附近張貼，並已在報章刊登。執達主任/代表原告人的律師亦已在這裡現場解釋法院命令的要點。任何人阻礙或干擾執達主任及協助執達主任的人員執行高等法院的命令，可能違反法院命令和阻礙司法工作。這些行為可能構成刑事藐視法庭和干犯香港法例第228 章《簡易程序治罪條例》第23 條的抗拒或阻礙公職人員罪，干犯此兩項的任何一項，都可被判監禁及罰款，此外，這些行為亦可能構成其他的刑事罪行。你們必須立即停止阻礙或干擾執達主任及協助執達主任的人員，否則你們可能會被拘捕及檢控。

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.’

30.  At about 10:12 am, CIP Lam made an announcement to the press at the scene requesting them to follow the instruction of the Police Media Liaison Team to retreat from the area of police operation.

31.  At about 10:15 am, as the crowd ignored the verbal warning, CIP Lam gave a final verbal warning, again through the PA System, to the crowd at the same location in Chinese and English in the following terms (‘Final Police Warning’) :

‘ 前面人群注意。這是警方發出的最後警告。你們必須立即停止阻礙或干擾高等法院執達主任及協助他們的人員清除及移走路上的障礙物。如你們不立即停止，警方會按涉嫌刑事藐視法庭，抗拒或阻礙公職人員罪，和你們已涉嫌干犯的其他罪行拘捕你們，如有必要會使用最低的武力執行拘捕，而不會再作任何警告。

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.’

32.  Despite the repeated warnings, the crowd still refused to leave the Area.  CIP Lam therefore instructed the police officers at the scene to arrest those people who caused obstruction in the Area and refused to leave.  Upon CIP Lam’s instruction, the police check line (which was formed by police officers) progressed from the junction of Argyle Street and Nathan Road along Nathan Road towards the Tsim Sha Tsui direction.

33.  Between 10:25 am and 12:00 pm, Chief Inspector Sean Lin (‘CIP Lin’) and Senior Inspector Cheung Kin Pan (‘SI Cheung’) took turn to make public announcements through the PA System and a microphone along Nathan Road from Argyle Street towards Dundas Street.  Such public announcements included advice to the crowd, onlookers and press at scene to take care of their own safety; and that the police might raise the level of appropriate force, including the use of water jet pack of pepper-spray-based solution, if deemed necessary.  CIP Lin and SI Cheung also advised the crowd to leave the Area via the Tsim Sha Tsui direction in an orderly manner and not to obstruct police officers in the execution of their duties.

34.  At about 11:07 am, the police check line reached the junction of Shantung Street and Nathan Road. At the time, the crowd gathered again at the junction of Shantung Street and Nathan Road.  Whilst the police officers at the scene continued to advise the crowd to leave the Area via the Tsim Sha Tsui direction, CIP Lam issued the Final Police Warning once again.  Afterwards, police officers started arresting those people causing obstruction and refusing to leave.

35.  The enforcement action of the police officers continued up to 12:40 pm when all the barricades on the portions of Nathan Road from Argyle Street to Dundas Street were cleared.

36.  During the operation, several police video teams were deployed to capture the incident from different locations.”

7.  At about 10:15 am, after the Final Warning was given, the respondent was seen standing in the Area.  Upon instructions, the police arrested the respondent at around 10:20 am.  After arrest, he was taken to Kwai Chung Police Station for further enquiry.

C.  COMMITTAL PROCEEDINGS

C1.  The case against the respondent as agreed

8.   The respondent agreed that he was present in the Area between 8:51 am and 10:20 am during the execution of the Amended Injunction Order.   He also agreed to the case pleaded by the Secretary for Justice against him for criminal contempt :[8]

“ 43. …

Approximate Time		Particulars of the Acts of the Respondent
8:51a.m. to 8:58a.m.	-	He was present in Nathan Road near the junction of Nelson Street with Mr WONG Ho-ming and Mr Lester SHUM. During the third announcements, he was standing next to Mr WONG Ho-ming and Mr Lester SHUM in front of the bailiff officers.
9:38a.m. to 9:43a.m.	-	He was standing with Mr Lester SHUM on a wooden platform behind the barricades near the junction of Argyle Street. Then, he spoke through a microphone asking the bailiffs and the Plaintiffs’ legal representative to explain who had been authorized to clear the barricades. After that, he remained present in the Area with Mr SZETO Tze-long Jason and Mr Lester SHUM.
9:44a.m. to 9:47a.m.	-	He remained present in the Area with Mr SZETO Tze-long Jason, Mr WONG Ho-ming and Mr Lester SHUM.
9:49a.m. to 9:55a.m.	-	He was standing next to Mr SZETO Tze-long Jason, Mr WONG Ho-ming and Mr Lester SHUM near the junction of Argyle Street and then spoke through a microphone requesting the Plaintiffs’ legal representative to explain who had been authorized to clear the barricades.
9:55a.m. to 9:59a.m.	-	He was standing behind the barricades making repeated inquiries whether persons wearing red caps were the Plaintiff’s lawful agent with Mr WONG Ho-ming and Mr Lester SHUM. After that, he remained present in the Area.
10:05a.m. to 10:06a.m.	-	When PW7 was giving out a warning, he was standing near to Mr SZETO Tze-long Jason, Mr WONG Ho-ming and Mr Lester SHUM behind the barricades and was wearing a red cap.
10:11a.m. to 10:15a.m.	-	He was standing near to Mr WONG Ho-ming and Mr Lester SHUM in the Area and was wearing a red cap. When PW7 was issuing the final warning, he was still standing in the Area.
10:20a.m.	-	He was arrested by the Police.

Conclusion

44.  In the premises, [the respondent] :

(1)  knew the material terms of the Amended Injunction Order;

(2)  was in the Area from about 8:51 a.m. to 10:20 a.m.;

(3)  heard the warnings issued by PW7 at about 10:05 a.m. and about 10:15 a.m. and knew that he was required to leave the Area;

(4)  had opportunities to leave the Area prior to the arrest but did not do so prior to the arrest; and

(5)  the actions taken by [the respondent] constitute a breach of the Amended Injunction Order.  By reason of the aforesaid, [the respondent] must have been aware of this and the breach was intentional.

45.  The deliberate acts of [the respondent] identified in paragraph 43 above, coupled with his determination to continue flouting the Amended Injunction Order constituted interference and/or impediment to the due administration of justice by obstructing or resisting the Police and/or Bailiff Officers in executing the Amended Injunction Order, and therefore amounted to criminal contempt of court.”

C2.  The respondent’s explanation

9.  In his affirmation filed on 10 July 2017, the respondent explained his conduct on 26 November 2014 thus.

10.  After alluding to his background and his past participation in public demonstrations against the Government’s proposals for the process for election of the Chief Executive, the respondent said that since the grant of the injunction orders regarding Mongkok, he walked past the Area not more than 5 times between 24 October and 25 November 2014 but he had not participated in the occupation.  He knew beforehand that the Amended Injunction Order would be executed on 26 November 2014.  On the night of 25 November 2014, he had a meeting with 40 to 50 members of Scholarism to discuss about the clearance.  He also discussed the matter with Wong Ho Ming and Lester Shum over the phone.  The respondent hoped to stay in the Area to understand the clearance arrangement and circumstances, ensuring that the occupiers present would leave safely.  Members of Scholarism at the meeting that night determined the activity on 26 November 2014 to be a non-demonstration.  As neither the respondent nor members of Scholarism wished to gather and use force to obstruct the clearance, they decided that only the respondent would go to the Area on the following day to clarify the clearance process.

11.  The respondent went on to say :

“ 9. On 26 November 2014, I arrived at Mong Kok at about 8:51am. I saw bailiffs in Mong Kok and therefore (I) took up a loudhailer to enquire who the agents were, what the background of those people was, whether they had been authorized by any officers, whether people were obstacles, etc. According to the Plaintiff, at that stage bailiff officers had already informed me of the details regarding the clearance notice that the bailiff was about to make. However, since bailiff officers did not respond directly to my questions, the only thing for me to do was to keep asking. I believe as it was necessary to dispel public’s worries, I had to continue putting questions to bailiff officers. I used a loudhailer because I was separated from the bailiff by people in red caps and I did not want to have any physical conflict. I only want to clarify the arrangements for executing the injunction in peaceful and non-violent means and to ensure the personal safety of the people who assembled there.”[9]

12.  The respondent stressed that he had only stayed in the Area for a short while.  Although he had caused obstruction to vehicles, he had not erected any obstacles.  Nor had he done anything aggressive to obstruct the clearance.  He agreed that by staying in the Area shortly he had breached the Amended Injunction Order.  However, the only reason why he stayed was to understand the arrangement and circumstances of the clearance so as to ensure that the occupiers would leave safely.  Although he had not done anything violent or aggressive, the respondent had, after considering legal advice, reflected on his conduct and accepted that he had committed criminal contempt. He thus decided to accept legal responsibility and consequences to prove that he had all along respected the rule of law.  The respondent reiterated that all he had done he did it not for personal gain but the interests of the Hong Kong public.

13.  Finally, the respondent said that after the conclusion of the case, he would continue to reflect the public’s views and requests to the Government through peaceful and non-violent public movements. He hoped to participate in future elections to continue to voice out for Hong Kong’s long-term interests.  He asked the court to take into account his enthusiasm and ambition in politics; and his motive for asking questions during the clearance operation, that is, to protect the public’s right to know and the safety of the demonstrators, in sentencing him.  He concluded by offering his sincerest apology to the court for his conduct on that day. 

C3.  Reasons for sentence

14.  The Judge first addressed the question if section 109A of the Criminal Procedure Ordinance, Cap 221, applied to criminal contempt.[10] For the reasons that he gave, the Judge concluded that it did not.  And the respondent did not seek to appeal against that conclusion.

15.  The Judge then went on to say :

“ 29.  Returning to [the respondent’s] case, video evidence depicted his presence from 8:51 am to 10:20 am. During the clearance operation, [the respondent] repeatedly challenged the validity of the injunction order by demanding the Plaintiffs’ solicitors to explain who had been authorized to clear the obstacles, the identity of the Plaintiffs’ agents and their power in dismantling the barricades. His challenges to the Bailiffs and the Plaintiffs’ solicitors and their agents led to vehement exchange of abusive language between the protestors and the Plaintiffs’ agents, undoubtedly some were taxi drivers.

30.  Every citizen of Hong Kong has the right to publicly protest against anything which displeases him and publicly proclaim his views provided that he does not infringe the right of others. These respondents rightly or wrongly thought that they had a grievance and as such they were entitled to protest. By 26 November 2014, it became apparent that their continued unlawful occupation of roads and streets especially in Mong Kok would not alter anything and would affect no one except ordinary citizens of Hong Kong in going about their daily routine. When the livelihood of our ordinary citizens had been adversely affected, such as the livelihood of the taxi and minibus drivers who had aged parents to support, mortgage and rent to pay, children to go to school, the court had to intervene and protect not just the right of the protestors but also the right to live of the vast majority of the people. In the turmoil of any political movement, it is unfortunately always the poorest and the working class who suffer the most.

31.  Although [the respondent] stayed in the Area for just one and a half hours, his involvement in obstructing the clearance operation was deep and extensive. He played a leading role on that day. In view of his overall involvement, I am of the view that the only appropriate punishment for [the respondent] will be one of immediate imprisonment. For his part, [the respondent] will be sentenced to 3 months’ imprisonment, consecutive to the imprisonment term he is now appealing before the Court of Final Appeal as they are two separate and distinct incidents.”[11]

D.  OVERVIEW OF THE PARTIES’ STANCE ON APPEAL

16.  Mr Lawrence Lok SC appearing together with Ms Christine Yu, for the respondent, raised three grounds of appeal :

(1)  The Judge erred in finding that the respondent’s involvement in obstructing the clearance operation was “deep and extensive” and that he played a “leading role” when there was no evidence or insufficient evidence to support the finding.

(2)  The Judge erred in failing to take into account the essential aims of reformation and social rehabilitation in sentencing young offenders and in view of the respondent’s age, he ought to be satisfied that there was no other method of dealing with him other than immediate imprisonment.

(3)  In all the circumstances, the sentence of 3 months’ imprisonment was manifestly excessive.

17.  In consequence, Mr Lok submitted that a suspended sentence together with a fine or alternatively a short custodial sentence which would enable the respondent’s immediate release (the respondent already having served 6 days’ imprisonment before being granted bail) would in all the circumstances be a proportionate sentence.

18.  In opposing the appeal, Mr Derek Chan SC, for the Secretary for Justice, submitted that there was sufficient evidence to support the Judge’s finding that the respondent’s involvement was “deep and extensive” and that he played a “leading role”.  He further submitted that the Judge must have been fully aware of the respondent’s young age, and although he did not expressly say so, he must have taken that into account but decided not to give any weight to it.  Finally, Mr Chan argued that the sentence of 3 months’ imprisonment was not manifestly excessive in the overall circumstances of the case.

E.  DISCUSSION

E1.  The respondent is punished solely for his criminal contempt

19.  We pause to deal with a preliminary point.

20.  In the course of his oral submissions, Mr Lok urged upon us not to punish the respondent because of his status as a committed social activist who had gained notoriety through his participation in public and high-profile demonstrations but should only punish him for the criminal contempt that he committed on 26 November 2014.  With respect, the point taken by Mr Lok is so obvious that no court needs any reminder as such.  But since it has been taken and in order to dispel any doubt that it might have cast in the mind of any observer of these proceedings, we take the opportunity to reiterate that in Hong Kong where the rule of law reigns, everyone is equal before the law.  Everyone, whoever he is and whatever his social status or profile might be, deserves and is indeed entitled to the same treatment under the law.  In the context of sentencing, the court punishes and will only punish an offender because of the wrong that he had committed and not because of who he is or his social status or profile, whatever it might be.  In the instant case, the Judge did not and this Court will not punish the respondent because of his “status” or “notoriety” as a committed social activist.  He is punished for the criminal contempt, which he admitted and for which he apologized, and no more.  Any suggestion that he is punished by the court because of any other reason, whatever that might be, is entirely baseless and misconceived.

E2.  A deterrent sentence

21.  Criminal contempt, by definition, threatens the due administration of justice as a whole.  As such, it presents a direct challenge to the rule of law.  Because of its significance, this point requires some elaboration.

22.  The importance of the rule of law to Hong Kong is self-evident.  It distinguishes Hong Kong as a modern civilized and open society from anarchy where the rule of might prevails.  It renders all the rights and freedoms guaranteed under our laws, including the Basic Law, which we all enjoy and cherish, real and meaningful in actuality.  It enables Hong Kong citizens to flourish.  It ensures that Hong Kong will continue to thrive as an international financial centre.  The rule of law is the very fabric and foundation of our society.

23.  The rule of law is a content-rich and multi-faceted concept.  In the present case, we are concerned with the due administration of justice, which is an integral component of the rule of law.  If justice is not duly and effectively administered, dire consequences including the following will ensue :

(1)  Our judicial system will lose its authority and credibility and cease to command any respect or confidence.  The court as the administer of justice will be crippled.

(2)  The rights and liberty of individuals which the court shall protect will perish.

(3)  The business environment will degenerate because disputes cannot be fairly determined and rights cannot be effectively protected and enforced through the judicial system.

(4)  Hong Kong will cease to be an international financial centre or the regional hub for dispute resolution, as both require a strong and effective justice system as its structure.

24.  It follows that when the due administration of justice is interfered with or impended, the rule of law will inevitably suffer.  Criminal contempt, which threatens the due administration of justice as a whole, subjects the continuation of the rule of law to serious risks.  If unchecked, criminal contempt will inflict grave and irreparable damage to Hong Kong.

25.  Because the public interests involved in protecting the due administration of justice as an integral component of the rule of law are so enormous, the sanction imposed on the contemnor is punitive in nature.[12]  The court will ordinarily impose a deterrent sentence on the contemnor, with the dual aim of deterring him from reoffending and others from committing criminal contempt.  Put in another way, deterrence is ordinarily the primary consideration in sentencing a contemnor of criminal contempt.  Accordingly, a term of imprisonment is generally called for, although the court retains a wide discretion to impose other forms of sentence as it deems most appropriate in the overall circumstances of the case.  A term of imprisonment is particularly warranted where the interference of administration of justice is grave, contumelious and contumacious : see Secretary for Justice v Yuen Oi Yee Lisa [2011] 1 HKC 346, per Chu J (as she then was), at [11] citing Secretary for Justice v The Oriental Press Group [1998] 2 HKLRD 123; and Secretary for Justice v Choy Bing Wing [2005] 4 HKC 416.

E3.  The respondent’s culpability

26.  Here, the respondent knowingly and intentionally flouted the Amended Injunction Order by obstructing its due execution thereby interfering with and impeding the administration of justice.  His culpability has to be assessed against the overall context in which he committed the criminal contempt.  In this regard, three matters are of particular relevance : (1) the act and nature of his contempt; (2) his role in committing the contempt; and (3) the effect and gravity of his contempt on the due administration of justice.

E3.1  Act and nature of the respondent’s contempt and his role

27.  The first two matters can be conveniently dealt with together.

28.  We have already recapitulated the background facts and set out the case against the respondent as agreed by him at [6] and [8] above.  We have also viewed the video footages capturing the respondent’s act and conduct at the material time.  The background facts, the agreed facts and the video evidence clearly support the Judge’s finding that although the respondent stayed in the Area for just 1 ½ hours, “his involvement in obstructing the clearance operation was deep and extensive” and that he played a leading role in obstructing the execution of the Amended Injunction Order.

29.  However, Mr Lok contended that there was insufficient evidence to enable the Judge to come to those findings.  Mr Lok took a number of points :

(1)  As deposed in the respondent’s affirmation, he only walked past the Area not more than 5 times between 24 October and 25 November 2014.  There is however no evidence to suggest that the respondent was involved in the occupation of the Area between 24 October and 25 November 2014.

(2)  The respondent affirmed that he went to the Area on 26 November 2014 alone without other members of Scholarism. There is no evidence to suggest that any of the other contemnors cited for criminal contempt or other protestors in the Area was following his lead on that day.

(3)  Most of the time during his presence, the respondent was merely “being present”, “standing” or “remaining” in the Area.  His conduct at those times was not very different from most of the other contemnors who were given a suspended sentence.

(4)  The respondent had only asked the bailiffs and/or the Plaintiffs’ legal representatives questions from about 9:38 am to 9:43 am (about 5 minutes) and from 9:49 am to 9:59 am (about 10 minutes).  He asked those questions because he thought it was necessary to allay public concerns.

(5)  As shown in the video evidence, the “vehement exchange of abusive language” in fact lasted for around 4 minutes from about 9:55 am to 9:59 am only.  The respondent did not use any abusive language throughout and did not resort to any form of physical violence.

30.  With respect, we disagree.

31.  Mr Lok’s submission that the respondent did not occupy the Area before 26 November 2014 is misguided.  It is never the Secretary’s case that the respondent was guilty of criminal contempt by occupying the Area between 24 October and 25 November 2014.  The respondent was so guilty simply because of what he did on 26 November 2014. Even if the respondent did not take part in the occupation of the Area before 26 November 2014, it does not detract from his conduct and role in obstructing the due execution of the Amended Injunction Order on that day.

32.  The gravity of the respondent’s conduct and his leading role in obstructing the due execution of the Amended Injunction Order must be determined in the totality of the evidence :

(1)  Contrary to Mr Lok’s submission, the respondent was not merely present, standing or remaining in the Area for most of the time, like those other contemnors who had received a suspended sentence.  He stood in an elevated position from 9:38 am to 9:43 am, and from about 9:49 am to 9:55 am.  At various times when he was standing in an elevated position, he spoke through a loudspeaker, and repeatedly questioned the execution of the Amended Injunction Order.

(2)  When the Plaintiffs’ representatives attempted to physically clear the barricades, the respondent stood directly opposite them behind the barricades, challenging them from about 9:54 am to 9:58 am.  He and Wong Ho Ming were the two main protagonists in so challenging the Plaintiffs’ representatives.  While the respondent had not used abusive language or any violence, he spoke in an aggressive and provocative tone and manner.  What the respondent (and Wong Ho Ming) did escalated the tensions.  The emotion at that point became very high when abusive languages were vehemently exchanged between the protestors and the Plaintiffs’ representatives, giving rise to a real risk of physical confrontation between them.

(3)  It is the respondent’s own case that he repeatedly asked questions about the execution in order to allay public concerns.  So he assumed that he could act and was actually acting for the benefit of the public, especially those who remained in the Area.  In so doing, the respondent played a leading role in asking questions and challenging the execution of the Amended Injunction Order for others in the Area.

(4)  The respondent’s conduct must have also encouraged other protestors to remain in the Area to continue to flout the Amended Injunction Order despite the repeated announcements by the bailiffs and warnings by the police.  Viewed against such context, the respondent was playing a leading role.

(5)  When all the evidence is carefully considered, it is beyond doubt that while the respondent might have gone to the Area on 26 November 2014 alone with no other members of Scholarism, he did after arrival take up a leading role in obstructing the due execution of the Amended Injunction Order.

33.  In our view, the Judge’s finding on the respondent’s involvement and role in obstructing the due execution of Amended Injunction Order is amply supported by the evidence and is plainly correct.

E3.2  Effect and gravity of his contempt on administration of justice

34.  We now come to the third matter concerning the respondent’s culpability, namely, the effect and gravity of his contempt on the due administration of justice.

35.  As was pointed out by this Court in Secretary for Justice v Wong Ho Ming, supra, at [90], the Amended Injunction Order was not a usual kind of interim injunction granted to a private litigant in an ordinary kind of civil litigation, which did not concern any persons not privy to the proceedings.  It was an interim injunction, widely publicized through the local media, targeted at the sizable crowd of occupiers, most of them were unknown, who had been unlawfully occupying large portions of several main public roads in Mongkok for quite a long time, thereby creating serious obstruction and interference with normal vehicular access which had been seriously affecting the livelihood of the Plaintiffs and causing significant inconvenience and nuisance to the public at large.  Its purpose was to forthwith restore the normal vehicular traffic to the public roads affected and remove the public nuisance occasioned pending the final determination of the disputes between the parties to the proceedings, which might well take some time to conclude.  There were accordingly considerable public interests involved in the timely compliance with the Amended Injunction Order.

36.  Very serious consequences adversely affecting the administration of justice as a whole arose from the respondent’s flouting of the Amended Injunction Order and obstructing its due execution in the manner as he did.  He had seriously (a) frustrated the very purpose of the Amended Injunction Order; (b) undermined the public confidence in its effective enforcement; (c) diminished the respect for it as a court order and the court’s authority in granting it; and (d) defied the authority of the bailiff, in his capacity as an officer of the court, in enforcing it.

37.  On the last point, as this Court noted in Secretary for Justice v Wong Ho Ming, ibid, involvement of the bailiff to enforce the Amended Injunction Order became necessary when there had been a real and substantial risk that the due administration of justice and the respect for the authority of the court and therefore the rule of law would be seriously undermined.  It was because the ex parte injunctions granted by Poon J (as he then was) had been openly disobeyed and flouted en masse and that various public figures (including some legally trained individuals) suggested erroneously to the public and the demonstrators en masse that the ex parte injunctions need not be complied with until they had been determined after an inter partes hearing and that there was no challenge to the rule of law by merely disobeying civil orders, and that the rule of law was only threatened when there was disobedience of an actual order of committal for contempt of court.  Through the wide publication of Au J’s judgment, the respondent must be fully aware of the bailiff’s appointment and the reason why — the bailiff was appointed to prevent interference with the administration of justice as explained.  So when the respondent knowingly and intentionally obstructed the bailiff in its due execution, it was more than a knowing and intentional breach of the Amended Injunction Order.  He knowingly and intentionally interfered with the due administration of justice.

38.  Further, the context of the respondent’s obstruction was that at the material time a substantial crowd of protestors were present at the Area declining to leave notwithstanding the repeated announcements by the bailiff and warnings by the police.  It could not have escaped the respondent that his conduct must have also encouraged those protestors to continue to flout the Amended Injunction Order, thereby seriously interfering with the due administration of justice on a large scale.  It only makes his criminal contempt even worse.

E3.3  Immediate imprisonment

39.  In sum, the respondent’s criminal contempt is grave, contemptuous and contumacious.  As a grave and defiant breach of the Amended Injunction Order and a serious and deliberate obstruction of its due execution, committed knowingly and intentionally, it is tantamount to a direct and frontal challenge to the court.  It constitutes an affront to the court and must be met with a deterrent sentence.  It clearly calls for a term of immediate imprisonment.

E4.  The respondent’s explanations

40.  We next turn to the reasons the respondent advanced to explain his criminal contempt. They were set out in full in Part C2 above.  Essentially, the respondent said that he raised the questions as he did because of public concerns and the public’s right to know.  And he wanted to make sure that the protestors would leave safely.

41.  The respondent’s assertion that he needed to raise questions repeatedly is premised on the assumption that there was ambiguity in the Amended Injunction Order.  That assumption was simply mistaken.  For objectively there was nothing ambiguous about the terms of the Order that required clarification.  In any event, if the respondent was really concerned about any ambiguity arising from the terms of the Amended Injunction Order, he could have applied to join in the proceedings and seek clarification from Au J.  The respondent also queried if the Plaintiffs’ representatives wearing red caps were really the Plaintiffs’ agents.  But as pointed out in the course of the oral hearing when Mr Lok made submissions in this regard, such query was simply meaningless.  The bailiff officers, the Plaintiffs’ solicitors, and the police were all present together with the Plaintiffs’ representatives wearing red caps during the clearance operation.  The video evidence also showed that they took instructions from the Plaintiffs’ solicitors when they attempted to clear the barricades.  In the circumstances, there could be no doubt that they were the Plaintiffs’ agents. In any event, whatever questions the respondent might have wished to raise, it could not possibly justify his serious misconduct in obstructing the due execution of the Amended Injunction Order.

42.  The respondent asserted that he wanted to ensure that the protestors would leave safely.  He had however said nothing about how he could do it.  In fact, on a closer look, there was nothing he could do to achieve it.  If the protestors obeyed and followed the bailiff’s announcements or the police’s warnings, then they could leave safely without the respondent’s intervention. If they did not, then the police would take action to arrest them; in which scenario, and if physical confrontation ensued, there was nothing the respondent could have done to ensure the protestors would leave safely.  In the circumstances, it is not surprising that Mr Lok did not place much emphasis on this point, which is but the respondent’s own wishful thinking.

43.  We take on board the respondent’s explanations but do not consider that they would, individually or collectively, mitigate his culpability and the seriousness of his criminal contempt in any substantial way.

E5.  Admitting liability

44.  The respondent said that he admitted his liability for criminal contempt and accepted the legal responsibility and consequences to demonstrate his respect for the rule of law. He also offered his sincerest apology to the court. Subject to what we shall say below about his respect for the rule of law, they are the strongest mitigation and we will give full weight to them.

45.  The respondent’s assertion that he admitted liability and accepted legal responsibility and consequences so as to show that he had all along respected the rule of law, is highly questionable. One would rhetorically ask : if the respondent had truly respected the rule of law all along, why would he choose to knowingly and intentionally interfere with the due administration of justice by obstructing the execution of Amended Injunction Order, thereby threatening the rule of law in the first place? At the very moment when the respondent interfered with and impeded the due administration of justice in the morning on 26 November 2014, he had already threatened the rule of law. It is self-contradictory for him to say that his admission of liability and acceptance of legal consequences afterwards shows that he had all along respected the rule of law. He might have realized after the event that his conduct was wrongful and out of his respect for the law, chose to admit liability and accept the legal consequences. But it did not detract from his disrespect to and defiance of the rule of law by knowingly and intentionally committing the criminal contempt back on 26 November 2014.

E6.  The respondent’s personal circumstances

46.  The respondent said that all he had done he did it not for his personal gain but the interests of the Hong Kong public. He also asked the court to take into account his enthusiasm and ambitions in politics and his aspiration to continue to reflect the public’s views through peaceful and non-violent public movements in the future. We accept that these personal circumstances of the respondent are relevant. However, for the reasons set out in Part E3 above, the primary sentencing consideration must be deterrence. These matters are not sufficient to justify any form of sentence other than immediate imprisonment.

E7.  The respondent’s young age

47.  We finally come to the respondent’s age.  As said, he just turned 18 when he committed the criminal contempt and was 21 at the time of sentence.  Both parties agree and we accept that the respondent’s young age is a relevant factor in determining sentence : see Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35, at [84]; and Secretary for Justice v Leung Hiu Yeung (2018) 21 HKCFAR 421, at [74] – [76].  The significance to be attached to the offender’s young age is necessarily case-specific.  In sentencing a young offender, the court must also bear in mind other sentencing factors and the interests of the community as a whole.  Depending on the circumstances of the case, the offender’s young age may pale into insignificance because of the severity of the offence : see generally Cross & Cheung on Sentencing in Hong Kong, 8^th Edition, at §§30-24 and 30-25.  Where the facts warrant it, the sentencing court is entitled to take the view that the serious nature of the offence clearly overrides any consideration personal to the offender, including his young age.

48.  Although the Judge’s attention was specifically drawn to the respondent’s young age by the parties, he did not refer to it when sentencing the respondent.  As the Judge is a very experienced criminal judge, he could not have possibly missed such an obvious point.  So the fact that he had not expressly referred to the respondent’s young age could only mean that he must have taken that into account but decided not give any weight to it.  Unfortunately, the Judge did not explain why.

49.  In our view, although the respondent’s young age is a relevant factor, it is not weighty enough to justify a non-custodial or suspended sentence.  For in light of the respondent’s culpability and the seriousness of his criminal contempt, the primary sentencing consideration is clearly deterrence : see Part E3 above.  His young age, though relevant, is not sufficient to tip the scales in his favour.  Despite his youth, the only appropriate way of dealing with the respondent is immediate imprisonment.  The Judge is accordingly correct in so sentencing him.

E8.  Comparing with other contemnors

50.  In Lou Tit Man v Secretary for Justice [2018] HKCA 1004, this Court[13] at [10] pointed out that it is not appropriate to just consider the sentence of a particular contemnor involved in obstructing the due execution of the injunction order in HCA 2086/2014 solely on its merits.  In order to maintain a degree of parity between all the contemnors, the correct approach must be to examine whether his penalty falls comfortably within the range of sentences imposed by the Judge in the series and if not, whether there was proper justification for such a departure.  The same approach is applicable to determine if the respondent’s sentence is appropriate.

51.  The sentences imposed on all the contemnors involved in obstructing the execution of the Amended Injunction Order and the injunction order in HCA 2086/2014 are set out in the Annex to this judgment.  Mr Lok prayed in aid the fact that some of the contemnors were of similar age to the respondent but were given lighter imprisonment sentences, some of which were suspended.  However, the apparent disparity is readily explained by the Judge’s findings on the differences in involvement or role played by those contemnors in interfering with the administration of justice.  The Judge found that either they had played a limited role; had not taken any active part; or had merely stood and refused to leave without doing anything else.[14]  These findings stand in contrast to the respondent’s “deep and extensive” involvement and his leading role in obstructing the execution of the Amended Injunction Order, as found by the Judge.  Such a finding against the respondent easily distinguishes the respondent from the other contemnors who were of his similar age.

52.  However, the same cannot be said when the respondent’s sentence is compared with Wong Ho Ming’s, which brings us to the length of the respondent’s imprisonment.

E9.  Length of imprisonment

53.  Based on the evidence, especially the video footages, the respondent and Wong Ho Ming were the two main protagonists in obstructing the execution of the Amended Injunction Order.  They were often seen standing together and were doing similar acts such as repeatedly questioning the bailiff and challenging the Plaintiffs’ agents through the microphone.  According to the Judge’s findings, their involvements were both “deep and extensive” and both of them were playing the leading role. In short, their culpability and the seriousness of their contempt were substantially similar if not the same.

54.  At the time of the contempt, Wong Ho Ming was 26.  He was 29 at the time of sentence.  He denied liability and was found guilty after trial.  The Judge sentenced him to 4 ½ months’ imprisonment, which was the highest in the series.  The respondent admitted liability.  Under the conventional sentencing approach, and there is no reason to suggest that the Judge had not applied it, the Judge must have given the respondent the customary one-third discount on account of his admission.  It means that the Judge must have adopted 4 ½ months’ imprisonment as the starting point and then reduced it to 3 months after applying the discount.  In other words, in sentencing the respondent, the Judge adopted as the starting point the sentence that he imposed on Wong Ho Ming, which, as said, was the highest in the series.  In so doing, the Judge must have regarded the respondent and Wong Ho Ming as the most serious contemnors in the series.  Based on the Judge’s findings on their culpability and the seriousness of their criminal contempt, he was plainly correct in putting both of them in such a category for the purpose of sentencing them to immediate imprisonment.  But the respondent’s young age is clearly a relevant mitigating factor for determining the length of his imprisonment.  It is also a factor capable of distinguishing the respondent from Wong Ho Ming insofar as the length of imprisonment is concerned.  When the Judge decided not to give weight to the respondent’s young age in determining the length of his term and effectively gave him the same term as Wong’s, he ought to have articulated the reasons why.  In the absence of such reasons, we are unable to uphold the Judge’s exercise of his sentencing discretion in this regard.

55.  Having carefully considered the matter in the round, we respectfully differ from the Judge.  We think proper weight should be given to the respondent’s young age in determining the length of his imprisonment and for that matter, his personal circumstances, too.  After giving due weight to these matters and evaluating them against his culpability and the seriousness of his criminal contempt, we take the view that the proper starting point of his imprisonment should be 3 months.  On account of his admission, his acceptance of legal consequences and his apology to the court, we give him a one-third discount and reduce the term to 2 months.

56.  For completeness, we reject Mr Lok’s submission that a short custodial sentence (effectively 6 days) which would enable the respondent’s immediate release would in all the circumstances be a proportionate sentence.  For it does not truly and fully reflect his culpability and the seriousness of his criminal contempt.  And it does not comfortably fall within the range of sentences the Judge imposed in the series in the absence of any proper justification for such a departure.

F.  DISPOSITION

57.  For the above reasons, we allow the respondent’s appeal, set aside the 3 months’ imprisonment imposed by the Judge and substitute it with a 2 months’ imprisonment.

58.  On costs, we direct the parties to file and serve their written submissions within 14 days for our consideration.  We will then dispose of it on paper.

Annex

A.  Sentences imposed on the contemnors who admitted liability

Case Number	Contemnor	Age as at 25 or 26/11/2014	Sentence
HCMP 774/2015	Chau Wan Ying *	20	Imprisonment term of one month suspended for 12 months with no additional financial penalty
HCMP 2921/2015	Chan Jeffrey	42
HCMP 2930/2015	Chan Wing Wah	45
HCMP 2932/2015	Leung Hon Lam	17
HCMP 776/2015	Chu Wai Lun *	21	Imprisonment term of one month suspended for 12 months and a fine of $10,000
HCMP 777/2015	Cheung Kai Yin *	30
HCMP 779/2015	Ma Po Kwan *	21
HCMP 781/2015	Shum Lester *	19
HCMP 787/2015	Cheung Kai Hong *	27
HCMP 792/2015	Choi Tat Shing *	18
HCMP 794/2015	Wong Lai Wan *	19
HCMP 797/2015	Yeung Ho Wah *	30
HCMP 2919/2015	Lai Yu Sing	mid-50s
HCMP 2920/2015	Law Wai Yan	25
HCMP 2922/2015	Chan Wai Fung	17
HCMP 2923/2015	Au Yuk Kwan	21
HCMP 2924/2015	Chu Sui Ying	41
HCMP 2926/2015	Wong Ka Yee	53
HCMP 2927/2015	Kong Kam To	52
HCMP 2928/2015	Chan Ao Tien	22
HCMP 793/2015	Szeto Tze Long Jason *	20	6 weeks’ imprisonment suspended for 18 months and a fine of $10,000
HCMP 795/2015	Wong Chi Fung * (the respondent)	18	3 months’ imprisonment, consecutive to the imprisonment term he was then appealing before the Court of Final Appeal
HCMP 2916/2015	Cheng Kam Mun	26	3 months’ imprisonment

B.  Sentences imposed on the contemnors convicted after trial

Case Number	Contemnor	Age as at 25 or 26/11/2014	Sentence
HCMP 780/2015	Kwok Yeung Yuk *	19	6 weeks’ imprisonment suspended for 12 months with no additional financial penalty
HCMP 796/2015	Mak Ying Sheung *	33
HCMP 778/2015	Chu Pui Yan *	23	6 weeks’ imprisonment suspended for 12 months and a fine of $15,000
HCMP 789/2015	Hung Cheuk Lun *	24
HCMP 788/2015	Kwan Siu Wang *	23
HCMP 791/2015	Fung Kai Hei *	30
HCMP 2917/2015	Siew Yun Long	29
HCMP 2918/2015	Man For On	53
HCMP 2929/2015	Chan Pak Tao	25
HCMP 783/2015	Chiu Chi Sum *	65	2 months’ imprisonment suspended for 18 months and a fine of $15,000
HCMP 784/2015	Chan Po Ying *	58
HCMP 2925/2015	Yung Yiu Sing	19
HCMP 2931/2015	Lou Tit Man	69	4 months’ imprisonment (quashed by the Court of Appeal in [2018] HKCA 1004 and substituted with a term of imprisonment that enabled his immediate release after he had spent 13 days in custody)
HCMP 798/2015	Wong Ho Ming *	26	4 months and 15 days’ imprisonment

* Contemnors for obstructing the Amended Injunction Order on 26 November 2014.