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HCA606/2008
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO. 606 OF 2008
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BETWEEN
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ORIENTAL DAILY PUBLISHER LIMITED |
1st Plaintiff |
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MA CHING KWAN |
2nd Plaintiff |
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and |
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MA CHIU SING(馬照聲) |
Defendant |
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Before : Hon Poon J in Court
Dates of Hearing : 3, 4 and 12 September 2008
Date of Judgment : 12 September 2008
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JUDGMENT
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1. The 1st plaintiff is the registered proprietor, publisher and printer of Oriental Daily News (“ODN”), a Chinese daily newspaper widely circulated in Hong Kong. The 2nd plaintiff is the honorary chairman of Oriental Express Group Limited, a public company and the ultimate holding company of the 1st plaintiff. They obtained two interim injunctions dated 11 and 18 April 2008 against the defendant (the 1st and 2nd Injunction respectively). They complain that the defendant had since knowingly and deliberately committed breaches of the Injunctions and bring the present contempt proceedings against him.
A. THE CRIMINAL PROCEEDINGS
2. To set the plaintiffs’ complaints grounding the contempt proceedings in a proper context, it is necessary to go back to the two sets of criminal proceedings that the defendant faced earlier.
A.1. HCCC138/2002 and the subsequent appeals
3. In September and October 2001, the defendant, signing himself as “香港拉登 (HK Bin Laden)”, sent identical letters to three widely circulated Chinese newspapers including ODN. In those letters, the defendant indicated that he had put poison into certain food product in a supermarket and threatened that if the Chief Executive and top government officials had not resigned within a month, no further warning would be given before “the next poisoning action”. This would target other more general locations, perhaps killing countless people. Those letters, which enclosed a small sample of the poison he had used, ended with the threat that he was not to be underestimated or thought of as someone not having “enough guts” to do this. The letters continued, “… if my demand cannot be met, I guarantee that I will plan the HK version of 9/11...”.
4. What the defendant did was, as the Court of Appeal later observed in his appeal against conviction and sentence in HKSAR v. Ma Chiu Sing [2004] 2 HKLRD 974[1], akin to a threat of terrorism. Thanks to the responsible and efficient way that the matter was handled by the management of ODN, the defendant was swiftly arrested and brought to justice.
5. On 13 December 2002, the defendant was convicted in the High Court of three counts of maliciously sending letters threatening to kill unnamed persons[2] (“section 15 offences”) and two counts of attempting unlawfully and maliciously to administer to or cause to be taken by an unknown person a noxious substance with intent to injure, aggrieve or annoy such person[3] (“section 23 offences”). A total of 6 years and 8 months’ imprisonment was imposed.
6. Upon the defendant’s appeal, the Court of Appeal quashed the conviction of the section 23 offences but dismissed his appeal against sentence on the section 15 offences. The Court then substituted a sentence of 6 years and 8 months’ imprisonment on the section 15 offences. Thus, the overall sentence imposed on the defendant remained unchanged. He was subsequently released from jail in June 2006.
A.2. In the Eastern Magistracy
7. On or about 19 July 2006, ODN received a letter from a person identified himself as the defendant, threatening to exhibit publicly certain banners if ODN did not publish an article he had written (“the First Letter”). On or about 22 July 2006, ODN received another letter written by that person, accusing ODN of ignoring the First Letter and demanding for HK$5 million (“the Second Letter”). In August 2006, ODN received further letters from that person again, enclosing photographs showing a banner exhibited at various public places which contained statements defamatory of ODN. He threatened ODN thus : “我今次都預咗你會報吋，衰我都衰過，我仍有人會幫我搞死你，不過今次唔會咁易失拖……咪報吋，你應該知道我嘅能力”. ODN then reported the matter to the police.
8. On 31 August 2006, the defendant had a telephone conversation with Inspector Yau Lai Keung (“Inspector Yau”) posed as Mr Kenneth Lai Kam Wa (“Mr K Lai”), the personal assistant to the 2nd plaintiff. He made threats to Inspector Yau. The defendant was then arrested on the same day.
9. In June 2007, the defendant was tried before the magistrate in the Eastern Magistracy for two counts of criminal intimidation, which arose from the threats that he made in the First Letter and the telephone conversation with Inspector Yau. At the trial, Inspector Yau gave evidence against him. After trial, the magistrate convicted the defendant and sentenced him to 9 months’ imprisonment. He was released on 15 March 2008.
B. THE INJUNCTIONS
10. The plaintiffs complained that on or about 9 April 2008, the defendant displayed a banner (“the Banner”) outside the Legislative Council Building and the High Court Building and distributed leaflets to the public. Both the Banner and the leaflets contained the following words :
“豈料東方日報馬澄坤等馬氏家族並無將有關之投訴合法處理……然彼等不單無以此途徑處理，竟公然捏做一封勒索伍佰萬之勒索信[4]，誣陷本人，再由高級督察游乃強[5]假扮東方日報主席助理，致電本人……
……豈料游乃強竟被人收買，假稱雙方對話並無錄音，再捏做假証供指本人刑事恐嚇……
而更甚者東方日報馬氏等人，竟於本年三月十五日早上本人冤獄期滿獲釋時，公然僱用兇徒於赤柱警署對面持棍襲擊本人……
東方日報馬氏公然無視法律三宗罪：
(一) 插贓嫁禍
(二) 收買高級督察游乃強捏做假証供
(三) 藐視法紀公然僱人行兇。” (“the Words”).
11. The plaintiffs complained that the Words were defamatory of them in that they alleged the plaintiffs had committed the criminal offences of forgery of the Second Letter; of bribing Inspector Yau to give false evidence for the purpose of convicting the defendant in the criminal proceedings in the Eastern Magistracy; and of procuring the wounding or assault of him.
12. On 11 April 2008, the plaintiffs obtained the 1st Injunction, restraining him from, among other things, publishing the Words or similar words until the return date on 18 April 2008. It is the plaintiff’s case that the 1st Injunction, endorsed with a penal notice, was served on the defendant personally at his residence on 14 April 2008.
13. On 18 April 2008, the defendant did not appear. Deputy Judge Gill granted the 2nd Injunction, which continued the 1st Injunction until trial. The plaintiffs’ case is that the 2nd Injunction, endorsed with a penal notice, was also served on the defendant personally at his residence on 21 April 2008.
14. As noted, the plaintiffs complained that the defendant committed breaches of the 1st and 2nd Injunctions and, having obtained leave, commenced the present committal proceedings against him.
C. THE COMMITTAL PROCEEDINGS
15. The plaintiffs’ complaints of the defendant’s breaches of the Injunctions are set out in the four Notices of Motion filed herein.
C.1. The 1st Notice of Motion
16. The 1st Notice of Motion dated 25 April 2008 concerns the breaches of the 1st Injunction by the defendant on 16 April 2008 (Wednesday) by :
(1) displaying a banner identical to the Banner in front of the Legislative Council Building between 10:30 a.m. and 12:30 p.m.;
(2) displaying the said banner in the Statute Square in Central between 12:35 p.m. and 2:40 p.m.;
(3) distributing a leaflet containing the Words to an unnamed security guard of the Legislative Council Building at about 10:35 a.m.; and
(4) distributing another leaflet containing the Words to ODN’s reporter, Ms Lo Chung Man (“Ms Lo”) in Statute Square at about 1:45 p.m.
The 2nd to 4th Notices of Motion all concern the breaches of the 2nd Injunction.
C.2. The 2nd Notice of Motion
17. The 2nd Notice of Motion filed on 7 May 2008[6] concerns the breaches the defendant committed on 23 April 2008 (Wednesday) by :
(1) displaying a plastic banner (“the said Plastic Banner”) outside the Legislative Council Building between 10:00 a.m. and 11:25 a.m.; and
(2) displaying the said Plastic Banner in the Statute Square between 11:45 a.m. and 12:35 p.m.
The contents of the said Plastic Banner was just the same as the Banner save and except that the references to the names of ODN, the 2nd plaintiff, Ma Sik Chun, Ma Sik Yu, the Mas and the column “熱血維園” were covered up by “XXX” and some smaller printed words appeared between the heading, which read “毒販後人表面正當商人，左手傳媒公器右手黑社會，初一燒香拜神，初二入屋殺人，若敢公然揭露，先打人後禁制，問你怕未？”
C.3. The 3rd Notice of Motion
18. The 3rd Notice of Motion filed on 20 May 2008 concerns the breaches of the 2nd Injunction the defendant committed on 7 May 2008 (Wednesday) :
(1) by displaying the said Plastic Banner outside the Legislative Council Building between 9:35 a.m. and 10:30 a.m.; and
(2) by displaying the said Plastic Banner outside the Statue Square between 11:35 a.m. and 2:10 p.m.
A cardboard on a plastic stand was placed next to the said Plastic Banner (“the Cardboard”). The Cardboard bore the words “網頁 : THE ORIENTAL DAILY AND THE MA FAMILY”.
C.4. The 4th Notice of Motion
19. Finally, the 4th Notice of Motion filed on 18 July 2008 concerns the breaches of the 2nd Injunction by the defendant on :
(1) 14 May 2008 (Wednesday), by :
(a) displaying the said Plastic Banner and the Cardboard outside the Legislative Council Building between 10:10 a.m. and 11:05 a.m.;
(b) displaying the said Plastic Banner and the Cardboard on East Point Road outside Sogo Department Store, Causeway Bay, between 12:40 p.m. and 3:10 p.m.; and
(c) displaying the said Plastic Banner and the Cardboard outside a branch office of the Hong Kong Bank on Paterson Street, Causeway Bay between 3:20 p.m. and 4:00 p.m.;
(2) 28 May 2008 (Wednesday), by displaying the said Plastic Banner (with additional defamatory words of the plaintiffs) and the Cardboard outside a branch office of the Hongkong Bank on Paterson Street, Causeway Bay between 10:45 a.m. and 6:50 p.m.
(3) 4 June 2008, by wearing a blue T-shirt stuck with a piece of A3 size paper in the front which bore the words :
“我姓馬，我老豆賣白粉，我係黑社會，又係報紙主席，邊個得罪我，我搵人插贜嫁禍再收買幹探亞游仔屈佢，然後再搵人打佢，打完佢佢敢出聲就告佢誹謗，法律，乜野嚟嫁？哈哈哈哈哈…’;”
and wearing on his face a DIY paper scull mask with the words “垃圾日報主席” highlighted and shaded in black; and holding in his right hand a copy of ODN inside a transparent plastic bag with the front page bearing the name “東方日報” facing outwards :
(a) between 11:17 a.m. to 11:19 a.m. outside the High Court Building;
(b) at around 11:21 a.m. on an escalator leading from the ground floor level of the High Court Building to LG4 level of the High Court Building;
(c) between 11:23 a.m. and 11:40 a.m. outside the entrance of the High Court Building at LG4; and
(d) between 11:40 a.m. and 11:45 a.m. at the overhead bridge connecting Pacific Place and Queensway Plaza and at the Admiralty MTR station.”
(4) 18 June 2008, by wearing on his face a white DIY facemask bearing the words “黑社會兼政協 垃圾日報主席” and wearing a blue T-shirt with a piece of A3 size paper stuck in the front bearing the words :
“我姓馬，我老豆賣白粉，我係黑社會，又係報紙主席，我做咗好多傷天害理嘅事包括指使人：殺霞姐(案件編號HCCC89/06三名被指使兇徒被判終身) 二：搵人用棍打亞聲仔(案件編號DCCC339/08兇徒被判四年半及二年) 三：最近我又搵人打蔡龍安(案件編號ESCC2855/08行兇者被判監四個月)打完佢哋邊個敢出聲就告佢誹謗，利用法庭判佢坐監，雖然我做埋咁多陰質嘢但係我重可以做埋政協，天理？哈哈……”
(a) between 9:13 a.m. and 9:15 a.m. outside the front entrance of the High Court Building;
(b) 11:43 a.m. and 11:45 a.m. outside the front entrance of the High Court Building;
(c) at around 11:48 a.m. when walking down from Pacific Place into Queensway Plaza;
(d) between 11:53 a.m. and 12:30 p.m. outside the staff entrance of the Police Headquarters at Arsenal Street, Wanchai;
(e) between 1:20 p.m. and 1:45 p.m. outside the staff entrance of the Police Headquarters; and
(f) between 1:47 p.m. and 2:10 p.m. outside the report room of the Police Headquarters.
C.5. Service
20. Pursuant to orders, the four Notices of Motion were all served on the defendant by way of substituted service.
C.6. Defence
21. The defendant raised a number of points in defence. He denies that he was served with the 2nd Injunction. He next contends that that he was not the man who committed the breaches of the Injunctions. Finally, he queries the meaning of the references “XXX” in the said Plastic Banner. He seems to be arguing that the words complained of in the said Plastic Banner did not refer to the plaintiffs.
D. PROCEDURAL REQUIREMENTS
22. Before considering whether a contempt has been committed where the breach of a court order is involved, the court must be satisfied that the following procedural requirements are met :
(1) The relevant order, together with an appropriate penal notice, must generally be served personally on the alleged contemnor : Order 45 rule 7(2)(a), Rules of the High Court.
(2) The applicant must obtain leave from the court to make an application for committal : Order 52 rule 2(1). The application for leave is made ex parte and must be accompanied by an affidavit and a statement providing details of the alleged contemnor and the facts of the contempt alleged : Order 52 rule 2(2).
(3) Where leave is granted, the applicant must apply by motion to a judge and serve the motion together with the affidavit evidence and statement used for the ex parte application for leave, on the alleged contemnor at least eight clear days before the hearing : Order 52 rule 3. Generally service should be personal but the court may dispense with it if it is just to do so : Order 52 rule 3(4).
See Citybase Property Management Ltd v. Kam Kyun Tak (No. 1) [2003] 2 HKC 98, per Ma J (as he then was) at para.14 at p.102.
23. Here, all the procedural requirements are fully satisfied in respect of all the four Notices of Motion.
24. I only need to discuss the service of the Injunctions in greater detail.
25. The plaintiffs relied on the affidavit evidence of Mr Shiet Kwan Hung, a clerk of the plaintiffs’ solicitors and the process server, to prove personal service of both Injunctions on the defendant. For the 1st Injunction, there can be no dispute because the defendant had in fact signed on the covering letter dated 14 April 2008 enclosing the sealed copy of the 1st Injunction and other documents to acknowledge service. For the 2nd Injunction, Mr Shiet averred that he served it (endorsed with a penal notice) on the defendant at his residence on 21 April 2008.
26. In his affirmation, the defendant did not seek to dispute service. However, in his oral testimony, the defendant alleged for the first time that he had not received the 2nd Injunction. This allegation is simply untenable. For the said Plastic Banner displayed on 23 April (that is after the service of the 2nd Injunction on 21 April 2008) contained the Chinese characters “禁制”, which clearly referred to the 2nd Injunction. The only reasonable inference to be drawn, and I so draw, is that subject to the issue of identity, to which I will turn later, the defendant was personally served with the 2nd Injunction on 21 April 2008. The defendant’s contention that he was not served with the 2nd Injunction is rejected.
E. BURDEN ON PROOF
27. I will now proceed to consider if the contempt of the 1st and 2nd Injunctions had occurred.
28. I remind myself that given the seriousness of the matter, the court must be satisfied beyond reasonable doubt before a finding of contempt can be made even in cases of civil contempt, as is the present case. There is, however, no requirement in civil contempt proceedings to show that the alleged contemnor intended to disobey the order. It is sufficient to prove that he knew the facts which are said to make his act or omission a contempt and that such act or omission was not accidental.
F. THE PLAINTIFFS’ EVIDENCE
29. I first look at the evidence adduced by the plaintiffs on the breaches of the Injunctions.
30. The plaintiffs called the following witnesses to prove the breaches of the Injunctions :
(1) Mr K Lai;
(2) Mr Chui Ka Ho, Taco (“Mr Chui”);
(3) Mr Lai Wing Fat, Stephen (“Mr S Lai”);
(4) Ms Lo;
(5) Mr Wong Kin Cheung (“Mr Wong”);
(6) Mr Tsang Hin Chung (“Mr Tsang”);
(7) Mr Lam Ming Keung (“Mr Lam”); and
(8) Mr Tham Wai Kuen (“Mr Tham”).
As noted, Mr K Lai is the personal assistant to the 2nd plaintiff. Other witnesses are all reporters of the 1st plaintiff.
31. Mr K Lai’s evidence dealt with the statements filed under the rules in support of the each of the four Notices of Motion. He was not present at the scenes where the breaches were committed. The defendant did not cross-examine him.
32. The reporters’ evidence is straightforward. I will set them out by reference to the days on which the breaches of the Injunctions took place.
F.1. 16 April 2008
33. The evidence came from Mr Chui, Mr S Lai, Mr Wong and Ms Lo.
34. Mr Chui said[7] :
“4. I arrived at the Legco building at about 9:50 a.m. on 16th April 2008. At about 10:30 a.m., a man wearing a face mask and a cap emerged at the Demonstration Area outside the Legco building. He was carrying a backpack and I could see a rolled up banner insider his backpack (‘the Man’). The Man then went inside the Demonstration Area and opened his backpack. He took [the Banner] out from his backpack and had it stretched and erected on the ground …
5. I have met Ma in person on a few occasions in court before and have read a lot of news reports on Ma with his photo published. I can therefore recognize Ma. Although the Man was wearing a cap and had a face mask on, I recognize and verily believe that the Man was Ma.
6. I did not approach or talk to Ma. I only observed and took photos of Ma and/or the Banner situate outside the Legco Building. I understand that my colleague, Wong King Cheung, has exhibited some copies of photos taken by him on 16th April 2008 of Ma and the Banner outside the Legco Building. There is therefore no need for me to exhibit the photos taken by me of Ma and Banner outside Legco on 16th April 2008 which are similar to those already exhibited by Wong King Cheung.
7. Ma stayed at the Demonstration Area of the Legco Building until about 12:30 p.m. when he then packed his belongings and walked towards the Statue Square next to the Legco Building. I, together with a few reporters/photographers from other sections of the ODN, followed Ma to the Statue Square.
8. We arrived at the Statue Square at about 12:35 p.m. and Ma then unpacked his belongings and had the Banner stretched and erected on the ground. I stayed at the Statue Square and continued to observe and take photos of Ma. I left the Statue Square at about 2:40 p.m. Ma was still there when I left the Statue Square. …”
35. Mr Chui then exhibited some copies of coloured photos of the man that he took at the Statue Square. One of the photographs shows that the man has a mole on the left side of his neck. So does the defendant. The photograph also shows the ID card produced by the man to the woman police constable which bore the same number of the defendant’s.
36. Mr S Lai’s evidence is similar. He said[8] :
“3. On 16th April 2008, the following events took place:-
(a) At about 11:00 a.m., I received instructions from my supervisor at ODN to go to the Legislative Council (‘the Legco’) in Central to take photos of a man who stayed in the Demonstration Area outside the Legco building (‘the Demonstration Area’) and who had placed beside him a plastic banner with words referring to ODN.
(b) At about 11:15 a.m., I arrived at the Legco building and saw that a man wearing a face mask and a cap (‘the Man’) was sitting in the Demonstration Area. There was [the Banner] placed beside [him] …
(c) …
(d) …
(e) Throughout my stay outside the Legco building [until about 12:00 noon], the Man was sitting in the Demonstration Area with the Banner placed beside him. I also saw there were from time to time passers-by who looked at and/or stopped to read the Banner.
4. …
5. Prior to my arrival at the Legco building today, I have not met Ma Chiu Sing in person. I do not personally know him either. However, I have heard about him and have seen his photo in local newspapers before. I can also see today that the words ‘… 本人馬照聲 …’ were stated clearly on the Banner. Although the Man was wearing a cap and had a face mask on, I verily believe that he was Ma Chiu Sing.”
37. Mr Wong’s evidence is also similar. He said[9] :
“4. I arrived at the Legco building at about 10:15 a.m. on 16th April 2008. At about 10:30 a.m., a man wearing a face mask and a cap emerged and arrived at the Demonstration Area outside the Legco building. He was carrying a backpack and I could see a rolled up banner insider his backpack (‘the Man’). The Man then went inside the Demonstration Area and opened his backpack. He took [the Banner] out from his backpack and erected the same on the ground …
5. I have read a lot of news reports on Ma with his photo published and I can therefore recognize Ma. Although the Man was wearing a cap and had a face mask on, I recognize and verily believe that the Man was Ma. Besides, I over heard that the Man told the security guard of the Legco that he was the same Ma Chiu Sing who had also appeared at the Demonstration Area last week. I then saw the security guard took down the name of Ma as one of the demonstrators within the Demonstration Area. I also saw Ma handing a leaflet to the security guard at about 10:35 a.m. which I believe was the same as the one exhibited as ‘WKCJ-2’ of the Affirmation of Wong Ka Cheong Jimmy dated 11th April 2008 filed earlier in this action (that is, for the application for the 1st injunction).
6. …
7. After taking the photos, I went inside the Legco Building at around 11:05 a.m. to proceed to work on my reporting on the Legco meeting. I came out from the Legco Building at about 11:20 a.m. and saw that Ma was still at the Demonstration Area. I went into the Legco Building again after a while and left the Legco building after finishing my work there at about 12:15 p.m. I noticed that Ma was still in the Demonstration Area when I left the Legco Building.”
38. Finally, Ms Lo said[10] :
“4. Upon my arrival at the Legco Building at about 12:10 p.m. on 16th April 2008, I saw a man wearing a face mask and a cap at the Demonstration Area outside the Legco Building (‘the Man’). Besides the Man was [the Banner] …
5. I have read a lot of news reports on Ma with his photo published and I can therefore recognize Ma. Although the Man was wearing a cap and had a face mask on, I recognize and verily believe that the Man was Ma. I observed Ma from a distance and saw that he began packing his things at about 12:30 p.m. and then left the Demonstration Area of the Legco to go to Statue Square. I together with the 3 other reporters/photographers of ODN also followed Ma.
6. The time was about 12:35 p.m. Upon arrival at the Statue Square, Ma took out the Banner from his backpack and had it stretched and erected on the ground at Statue Square. After observing Ma for a quite while from a distance until about 1:40 p.m., I went up to him and tried to have conversation with him after receiving my supervisor’s instruction to do so via cell phone. I asked Ma what he was doing. Ma then asked me ‘Who are you?’. I pretended to be a volunteer worker and Ma told me that ODN is exercising ‘white terror’. Further, Ma also asked me whether I understood the contents of the Banner. I pointed at the red coloured words appearing at the bottom of the Banner. Ma elaborated and more or less repeated the contents of the Banner to me. Ma further said that he went to Liaison Office of the Central People’s Government in the Hong Kong S.A.R. to complain about ODN last Wednesday and had been attended by the staff there.
7. Ma also said that he has an email address and can be contacted via the same. He then pointed at his backpack which was placed on the ground. I saw a pile of some 40 to 50 leaflets inside Ma’s backpack and asked him whether I could take one. Ma said yes and told me that I could take a few more. I then took a leaflet from Ma’s backpack (‘the Leaflet’). The time was about 1:45 p.m. … I noticed that the contents of the Leaflet are substantially the same to those of the Banner and Ma’s email address was also imprinted on it.
8. After I obtained the Leaflet, 2 other reporters/photographers of the ODN went up to Ma and me and asked whether they could film or take a close up photo of the Leaflet. I then looked at Ma to see what he had to say about this. Ma declined their request and said they might be reporters of ODN and he would not let reporters of ODN to see or have the Leaflet.
9. I left the Statue Square at about 1:50 p.m. after receiving my superior’s instructions for me to stop following/reporting on Ma. At the time when I left the Statue Square, Ma was still there.”
F.2. 23 April 2008
39. The evidence came from Mr Tsang and Mr S Lai.
40. Mr Tsang said[11] :
“4. I first arrived at High Court at about 9:35 a.m. [on 23 April 2008] and found that the Defendant was not there. I then went to the Court of Final Appeal, the Government House and the Government Headquarter but found no trace of the Defendant at those locations either. I then proceeded to the Legco and upon my arrival there at about 10:00 a.m., I noticed a man (whom I recognized to be the Defendant) was already inside the Demonstration Area outside the Legco building. He was wearing a cap and a facemask and I could see [the said Plastic Banner] …
5. I have read a lot of news reports on the Defendant with his photo published and have seen the photos of the Defendant previously taken by my colleagues which have already been exhibited at various affirmations filed on behalf of the Plaintiffs in the present action. I can therefore recognize the Defendant. Although the man inside the Demonstration Area was wearing a cap and had a facemask on, I recognize and verily believe that he was the Defendant.
6. …
7. I stayed outside the Legco building to observe the Defendant until about 11:00 a.m. During my observation of the Defendant between 10:00 a.m. to 11:00 a.m., I noticed that the Defendant had spoken to a male passer-by and there were several passers-by who stopped to look at the Banner. When I left the Legco building at about 11:00 a.m., the Defendant was still in the Demonstration Area of the Legco building sitting next to the Banner.”
41. Mr S Lai said[12] :
“3. At around 10:25 a.m. when I was in Wanchai going about my normal news gathering tasks, I received instructions from my supervisor at ODN to go to the Legislative Council (‘the Legco’) in Central to see what the Defendant Ma Chiu Sing was doing there.
(a) At about 10:35 a.m., I arrived at the Legco building on my motorbike. I saw a man wearing a face mask and a cap which I recognized to be the Defendant already inside the Demonstration Area outside the Legco building. Beside him was [the said Plastic Banner] … Because the contents of [the said Plastic Banner] are identical to the one displayed by the Defendant on 16.4.2008 (save and except as mentioned above) which made express references to the Plaintiffs, I verily believe and understand the defamatory statements contained in [the said Plastic Banner] to be referring to the Plaintiffs.
(c) Since my instructions were to stay near the Demonstration Area to observe the Defendant and I anticipated I needed to remain there for a while, and since the spot where I had parked my motor bike was not a proper motor bike parking space, I left the Demonstration Area at about 11:25 a.m. to look for a proper parking space for my motor bike. After having found such a space and parked my motor bike, I returned to the Demonstration Area at around 11:45 a.m. but could not see the Defendant there.
(d) I then saw the Defendant had gone to the Statute Square and had displayed [the said Plastic Banner] there. I then used a digital camera and took photos of both the Defendant and [the said Plastic Banner] at the Statute Square. …
(e) The Defendant started to pack and leave the Statute Square at around 12:35 p.m. After I saw the Defendant left, I also left …”
F.3. 7 May 2008
42. The evidence came from Mr Lam. He said[13] :
“4. I arrived at the Legco at about 9:50 a.m. [on 7 May 2008] and noticed that there was already [the said Plastic Banner] inside the Demonstration Area outside the Legco building … There was [the Cardboard] right next to [the said Plastic Banner] … Apart from [the said Plastic Banner] and the Cardboard, there was no trace of Ma within the Demonstration Area or outside the Legco Building.
5. I then reported my discovery of [the said Plastic Banner] and the Cardboard to my superior and I was instructed to look for and wait to see if Ma would turn up at the Legco Building. I asked a policeman stationed at the Legco as to whether he knew the whereabouts of the person who placed [the said Plastic Banner] and the Cardboard inside the Demonstration Area. The policeman told me he had no idea and he directed my query to a security guard of the Legco (‘the Security Guard’) who told us that he was not in a position to reveal the same to us. As I was waiting outside the Legco Building, there were other individuals going inside the Legco Building and the Security Guard had flipped through the pages of his logbook (‘the Logbook’) whilst he registered the names of such individuals. As I stayed very close to the Security Guard, I could see that the Chinese name of Ma (ie. 馬照聲) was written in the Logbook and next to his name was recorded the time 9:35 whilst the Security Guard flipped through the Logbook. I therefore verily believed that Ma arrived at the Demonstration Area outside the Legco Building at about 9:35 a.m. on 7.5.2008 and his name was then registered in the Logbook by the Security Guard. I also took a number of photos of [the said Plastic Banner] and/or the Cardboard …
6. At about 11:30 a.m., a man wearing a facemask and a cap emerged and arrived at the Demonstration Area outside the Legco building. The man then went inside the Demonstration Area and rolled up [the said Plastic Banner] and removed the Cardboard from the plastic stand on which the Cardboard was placed. I have read a lot of news reports on Ma with his photo published and can therefore recognize the man inside the Demonstration Area to be Ma.
7. I then took a number of photos of Ma whilst he packed his belongings which included [the said Plastic Banner] and the Cardboard. During that time, a man went up to Ma and tried to give a brown envelope to Ma but Ma refused to accept the same. I later learned from my superior that the man is a clerk of the Plaintiffs’ solicitors (‘the Clerk’) who tried to serve some court documents on Ma. … After finished packing his belongings, Ma left the Legco Building and walked to the Statue Square. I followed Ma.
8. At about 11:35 a.m., Ma stopped beside a number of telephone booths outside the Statue Square near the Prince’s Building. Ma then unrolled and set up [the said Plastic Banner] as well as the plastic stand and placed the Cardboard thereon adjacent to the telephone booths. Ma left the scene at about 11:45 a.m. after setting up [the said Plastic Banner] and the plastic stand with the Cardboard placed thereon. I continued to stay near the telephone booths and called my superior to report to him what I saw.
9. At about 12:00 noon, I learned from my colleague who was following Ma that Ma was at Delifrance at the Worldwide Building in Central. I then headed to the Worldwide Building to look for Ma. I arrived at Delifrance at the Worldwide Building at about 12:10 p.m. and observed Ma from a distance. I later left Delifrance and returned to the telephone booths near Prince’s Building as there were other colleagues of mine observing Ma at Delifrance and I could make better use of myself by going back to the telephone booths to see what happened there and to wait for the return of Ma.
10. I returned to the telephone booths near the Prince’s Building at about 12:45 p.m. and noticed that [the said Plastic Banner] and the Cardboard were still there. At about 1:35 p.m., Ma returned. Upon Ma’s arrival, I saw the Clerk made further attempts to give the brown envelope to Ma but Ma still refused to accept the same. Ma stayed until about 2:10 p.m. and left after packing his belongings (including [the said Plastic Banner] and the Cardboard). …”
F.4. 14 May 2008
43. Mr Tham said[14] :
“5. At about 10:10 a.m. [on 14 May 2008], a man wearing a facemask and a cap emerged and arrived at the Demonstration Area outside the Legco Building. That man was carrying a backpack and I could see a rolled up banner inside his backpack. The man then went inside the Demonstration Area and opened up his backpack. He first took out [the said Plastic Banner] from his backpack and erected the same on the ground. He then erected a small plastic stand right next to the plastic banner and on the plastic stand he placed [the Cardboard] … I have read a lot of news reports on Ma with his photos published and can therefore recognize that the man inside the Demonstration Area was Ma.
6. …
7. Whist Ma was setting up [the said Plastic Banner] and the small plastic stand inside the Demonstration Area of the Legco Building, I saw a security guard approached and spoke to him. The security guard seemed familiar with Ma and did not ask Ma to produce his Identity Card for registration. Ma also spoke to another demonstrator inside the Demonstration Area and I overheard him saying: ‘I didn’t kill anyone, they are triad gang!’.
8. After finished setting up [the said Plastic Banner] and the small plastic stand with [the Cardboard] thereon, Ma left the Demonstration Area and went near the benches situated at the Chater Garden to observe [the said Plastic Banner] from a distance. At about 11:05 a.m., Ma went back inside the Demonstration Area to pack his belongings (including [the said Plastic Banner] and [the Cardboard]). Between 10:15 a.m. and 11:05 a.m., Ma went in and out of the Demonstration Area a number of times but he did not stay inside the Demonstration Area long each time. After he finished packing his belongings, Ma left the Legco Building and got onto a tram at about 11:15 a.m. heading towards North Point …
9. I reported what I saw to my superior after Ma had gotten onto the tram. At about 11:30 a.m., I received instructions from my superior to go to nearby governmental establishments to look for Ma. …
10. At about 12:30 p.m., I was informed that Ma had appeared outside Sogo Department Store (‘Sogo’) in Causeway Bay. I then headed to Sogo and arrived there at about 12:40 p.m. Upon my arrival at Sogo, I could see that [the said Plastic Banner] and [the Cardboard] which Ma had earlier displayed that morning outside the Legco Building were being displayed on East Point Road opposite the main entrance of Sogo but there was no trace of Ma there. I waited there until about 3:10 p.m. when Ma returned to pack his belongings (including [the said Plastic Banner] and [the Cardboard]). …
11. After finished packing up his belongings, Ma walked to the full time pedestrian street at Paterson Street also in Causeway Bay and I followed him. Ma then stopped outside a branch office of the Hongkong Bank on Paterson Street at about 3:15 p.m. and unpacked his belongings. Ma then erected [the said Plastic Banner] on the ground and displayed [the Cardboard] beside [the said Plastic Banner]. He then walked away from [the said Plastic Banner] and [Cardboard] and observed them from a distance. As the full-time pedestrian street on Paterson Street is a very busy spot in Causeway Bay, a lot of pedestrians walked past [the said Plastic Banner] and [the Cardboard] and some stopped to look at them. Sometimes Ma would walk closer to [the said Plastic Banner] and [Cardboard] when there were pedestrians stopping by to look at [them]. …
12. I left the scene at about 4:00 p.m. as I was off duty from then on. Ma was still there when I left.”
F.5. 28 May 2008
44. Mr Chui said[15] :
“4. I arrived at Chater Garden near the Legco Building at about 9:25 a.m. on 28th May 2008 but there was no trace of Ma there and I waited.
5. At about 10:15 a.m., a man wearing a facemask and a cap (‘the Man’) emerged and arrived at the Demonstration Area outside the Legco Building. The Man was carrying a backpack and I could see a rolled up banner inside his backpack. I have met Ma in person on a few occasions in court before as well as on 15th April 2008 at the Demonstration Area outside the Legco Building and have read a lot of news reports on Ma with his photos published. I can therefore recognize that the Man was Ma. Ma then went inside the Demonstration Area but he did not take out the banner from his backpack. He simply stood inside the Demonstration Area for a while and then left.
6. After leaving the Demonstration Area, Ma headed to Chater Garden towards the direction of Prince’s Building. At about 10:18 a.m., Ma stopped beside a number of telephone booths outside the Statue Square near the Prince’s Building and then took out the rolled up banner from his backpack. Instead of unrolling the banner, Ma looked around for a while but then put the banner back into his backpack and left. Ma then went to the tram station opposite the Head Office of the Hongkong Bank and got onto a tram heading towards North Point. I followed him.
7. At about 10:40 a.m., Ma got off the tram at the stop near Paterson Street in Causeway Bay. After getting off the tram, he walked to the full time pedestrian street at Paterson Street and stopped outside a branch office of the Hongkong Bank on Paterson Street at about 10:43 a.m. Ma then unpacked his belongings and erected [the said Plastic Banner] on the ground [with additional words which read ‘襲擊本人之兇徒及中間人已承認控罪(案件編號：DCCC339/08)並於本年5月26日於地方法院分別判監4 年半及2年警方仍在追緝其他在逃者包括一名叫肥樂之男子然真正之幕後主謀者xx日報主席及其家族却可消遙法外實乃香港法治之恥’ added at the bottom]. … Apart from the Banner, Ma also placed [the Cardboard next to the Banner]. …
8． After finishing setting up [the said Plastic Banner] and the Cardboard, Ma left the full time pedestrian street at Paterson Street at about 10:56 a.m. and walked towards Victoria Park. I followed him. At about 11:05 a.m., Ma reached the bus stop on Causeway Road outside the entrance of Victoria Park. Ma stopped there and waited until about 11:15 a.m. when he got onto a route 103 bus heading towards Chuk Yuen in Wong Tai Sin, Kowloon.
9. At about 3:45 p.m., Ma returned to the full time pedestrian street at Paterson Street to check [the said Plastic Banner] and the Cardboard. I followed him. Ma arrived at the full time pedestrian street at Paterson Street at about 3:50 p.m. and stayed near [the said Plastic Banner] and the Cardboard until about 5:00 p.m. when he left the full time pedestrian street at Paterson Street and went to the Victoria Park to watch people playing football there. I also followed him. I returned to the full time pedestrian street at Paterson Street at about 5:40 p.m. and took a photo of [the said Plastic Banner]. After taking the photo, I returned to the Victoria Park and continued to observe Ma there.
10. Ma stayed at the Victoria Park until about 6:40 p.m. and then returned to the full time pedestrian street at Paterson Street at about 6:50 p.m. to pack his belongings (i.e. [the said Plastic Banner] and the Cardboard). After packing up his belongings, Ma left the full time pedestrian street at Paterson Street and walked to the Sogo Department Store (‘Sogo’). I followed him. …”
F.6. 4 June 2008
45. Mr Chui said[16] :
“5. At about 10:40 a.m., I was informed by my superior that Ma had appeared at the High Court. I then headed to the High Court and found Ma on the 2nd Floor of the High Court Building outside the court rooms for High Court Masters. I have met Ma in person on a few occasions before and have read a lot of news reports on Ma with his photos published. I can therefore recognize Ma. He was wearing a light blue shirt and a pair of grey trousers. At about 11:00 a.m., Ma went into court no. 37 to attend a hearing which I understood from the Plaintiffs’ legal advisors was a summons for time extension for the Plaintiffs to file and serve their Statement of Claim in this action.
6. Ma came out from court no.37 at about 11:15 a.m. after the hearing and I followed him. Ma then went down to the ground floor of the High Court Building. Before leaving the High Court Building through the main entrance on the ground floor, Ma took off his light blue shirt and I could see that underneath the light blue shirt, Ma wore a blue T-shirt on which a poster of A3 size was stuck thereon on the front. The poster bore the words ‘我姓馬，我老豆賣白粉，我係黑社會，又係報紙主席，邊個得罪我，先揾人插贜嫁禍再收買幹探亞游仔屈佢，然後再揾人打佢，打完佢佢敢出聲就告佢誹謗，法律，乜野嚟嫁？哈哈哈哈哈…’ (‘the Poster’). Apart from taking off his light blue shirt, Ma also took out what seemed to be a DIY paper scull mask with the words ‘垃圾日報主席’ highlighted and shaded in black on the forehead (‘the Mask’) and wore the same over his own face. Ma further held a copy of the Oriental Daily News in his right hand. The newspaper was put into a transparent plastic bag so that anyone passing by could clearly see the name ‘東方日報’ on the front page.
7. After taking off his light blue shirt and wearing the Mask, Ma walked out of the main entrance of the High Court Building with the Oriental Daily News in his right hand and stayed there for about 2 minutes. He then took the escalator down to level LG4 and walked to the entrance of the High Court Building on LG4. Ma stayed there for about 15 to 20 minutes with the Poster and Mask on.
8. Ma left the entrance on LG4 at about 11:40 a.m. without taking off the Poster and the Mask. He then went into the Admiralty MTR station via the overhead bridge connecting Pacific Place and Queensway Plaza. Ma then went down to the platform and got onto a train heading towards Chai Wan. I followed him into the train but he managed to jump out of the train just before the train door closed for departing. As such, I lost sight of Ma and decided to get off the train at the next stop being Wan Chai Station in the hope of catching Ma in the next train. I waited for the next train at the platform of the Wan Chai Station and eventually found Ma inside the next train. When I saw Ma again, he had already taken off the Poster and the Mask. I got onto the train and continued to observe Ma but Ma did not seem to notice me this time. Ma got off the train at the Chai Wan Station and I followed him from a distance. I lost trace of him at about 12:15 p.m. near the taxi stand outside the Chai Wan MTR station. …”
F.7. 18 June 2008
46. Mr Chui said[17] :
“4. I arrived at the front entrance of the High Court Building on the morning of 18th June 2008 at about 8:30 a.m. At about 9:13 a.m., I saw a man wearing a white DIY facemask bearing the words ‘黑社會兼政協 垃圾日報主席’ and a blue T-shirt with an A3 size poster stuck on the front of the T-shirt appearing outside the front entrance of the High Court Building. I recognize that man to be Ma as he was wearing more or less the same outfit and the same DIY facemask as the one he wore on 4th June 2008. …
5. There are now produced and shown to me marked ‘CKHT-4’ two photos of Ma wearing his DIY facemask and his blue T-shirt with the A3 size poster stuck on the front of the T-shirt taken by me outside the High Court Building on the morning of 18th June 2008 at hours 9:13 a.m. and 9:15 a.m. using the digital camera provided by ODN (‘the Camera’). As can be seen from these photos, the difference between the facemask and outfit Ma wore on 4th June 2008 and the ones he wore on 18th June 2008 are as follows:-
(a) in the DIY facemask worn by Ma on 4th June 2008, only the words ‘垃圾日報主席’ were printed on the facemask but in the DIY facemask worn by Ma on 18th June 2008, the additional words ‘黑社會兼政協’ appeared right above the words ‘垃圾日報主席’;
(b) the words contained in the A3 size poster stuck on the blue T-shirt on 18th June 2008 (‘the Words’) were different from the ones that had appeared on the A3 size poster stuck on the blue T-shirt on 4th June 2008. The Words read as follows:- ‘我姓馬，我老豆賣白粉，我係黑社會，又係報紙主席，我做咗好多傷天害理嘅事包括指使人 ：殺霞姐(案件編號HCCC89/06三名被指使兇徒被判終身)二：揾人用棍打亞聲仔(案件編號DCCC339/08兇徒被判四年半及二年)三：最近我又揾人打蔡龍安(案件編號ESCC2855/08行兇者被判監四個月)打完佢哋邊個敢出聲就告佢誹謗，利用法庭判佢坐監 ，雖然我做埋咁多陰質嘢但係我重可以做埋政協，天理？哈哈……’.
6. At around 9:20 a.m., I received instructions from my superior and took the Camera up to the 5th Floor of the High Court Building to show to the Plaintiffs’ legal advisors who were waiting to go inside Courtroom No. 7 the photo shots I had taken of Ma outside the entrance of the High Court Building that morning. Shortly before 9:30 a.m., I saw Ma had appeared outside Courtroom No. 7. He was then not wearing the facemask or the blue T-shirt. He then went inside Courtroom No. 7.
7. The hearing started shortly after 9:30 a.m. I was also present inside the Courtroom when the hearing took place. After the conclusion of the hearing, I understood Ma had gone down to the Ground Floor of the High Court Building. I followed him. Ma stayed inside the Court Building on the Ground Floor and/or LG1 for a while and then at about 11:43 a.m., he went out to the main entrance and put back the same DIY facemask and the same blue T-shirt with the A3 size poster stuck thereon which I had seen earlier that morning. … Ma stayed outside the main entrance for about 2 minutes.
8. After I took the photo at exhibit ‘CKHT-5’, Ma started to leave the High Court Building towards Admiralty. I followed him. There is now produced and shown to me marked ‘CKHT-6’ a copy photo I took of Ma as he was walking down from Pacific Place into Queensway Plaza at about 11:48 a.m. All this time, Ma was wearing the DIY facemask and the blue T-shirt displaying the Words.
9. After walking through parts of Queensway Plaza, Ma went towards the direction of the Wanchai Police Headquarters and eventually stopped right outside the Staff Entrance of the Police Headquarters. There are now produced and shown to me marked ‘CKHT-7’ copy photos I took of Ma outside the Police Headquarters between the hours 11:53 a.m. to 12:12 p.m. Ma left the Police Headquarters at around 12:30 p.m. after being questioned by securities and policemen there.
10. After leaving the Police Headquarters, Ma went inside a public toilet at a playground on Lockhart Road. When he walked out of the toilet, Ma had already taken off the DIY facemask and covered his blue T-shirt by wearing a light blue shirt on top. Ma then walked along Fenwick Street and Lockhart Road and went into the Macdonald on Hennessy Road near Arsenal Street at about 12:45 p.m. to eat. After finished eating at about 12:55 p.m., Ma went to the Shell Gas Station on Arsenal Street and stayed there until about 1:10 p.m. Ma went inside the public toilet inside Lockhart Road playground again after leaving the Shell Gas Station and when he came out of the toilet, he had already put the DIY facemask back on and was in his blue T-shirt displaying the Words again.
11. Ma returned to the Staff Entrance of the Police Headquarters at about 1:20 p.m. with his DIY facemask and blue T-shirt on. Ma stayed there until he was invited to move to the area outside the report room by the police at about 1:45 p.m. At about 2:10 p.m., Ma left the area outside the report room of the Police Headquarters and he was accompanied by two policemen and a man whom I believe was a policeman in plain cloths. They walked to the entrance of the underground carpark at Harcourt Garden and then the plain cloths policeman went inside the carpark with Ma. I lost sight of them from then on.”
47. The defendant cross-examined the reporters on one point only, that is, whether he was actually the man they saw because the latter was wearing a face mask, as shown in all the photographs that they took. The reporters all remained adamant that he was the man for the reasons they had given in their evidence. Further, Ms Lo, who had spoken to the defendant on 16 April, said that she remembered the voice of the man and could recognize that as the defendant’s. All in all, they were not shaken a bit under cross-examination.
48. All the plaintiffs’ witnesses impress me to be honest and reliable. I accept their evidence in full.
G. THE DEFENDANT’S EVIDENCE
49. On the other hand, I find the defendant a poor and unreliable witness. He was extremely evasive even on matters which cannot possibly be disputed, such as whether he attended the court hearing in the morning on 4 June 2008. (The court record shows that he did.) He repeatedly said he could not remember if he was the person who committed the breaches of the Injunctions. Indeed the only answer that he gave was that he did not even have any impression of the any of the incidents at all. He justified his answer of no recollection by alleging that since he was attacked on 15 March 2008 after being released from prison, he suffered trauma and consequently lost his memory. He also disputed identity by pointing out that the reporters only saw a man wearing a mask and a cap and the photographs they took did not show his face. So nobody could be sure that he was that man.
50. There is no evidence whatsoever to support the defendant’s allegation that he had lost his memory at all. I reject it as an afterthought. I reject his evidence that he could not recall the incidents or that he was the person who committed the breaches complained of.
H. FINDING ON IDENTITY
51. In my view, the evidence on identity is simply overwhelming.
52. First, each of the reporters, whose evidence I accept, was able to identify the defendant.
53. Second, on 10 April 2008, Mr Wong overheard the defendant telling the security guard of Legco Building that he was the same Ma Chiu Sing who had appeared at the Demonstration Area last week.
54. Third, the defendant did attend the court hearing on 4 June 2008. It is the undisputed evidence of Mr Chui that after the hearing, he followed the defendant going outside the court building. There the defendant exhibited the A3 size paper on his blue T-shirt and wore the mask. Mr Chui must have been able to see his face and identify him as the defendant before he put up the mask. On 18 June 2008, Mr Chui also saw the defendant’s face before court hearing and outside the public toilet at the playground on Lockhart Road when he was no longer wearing a mask.
55. Fourth, the photograph taken by Mr Chui on 16 April 2008 clearly shows that the man depicted, who has the same mole as the defendant does and whose ID card is the same as the defendant’s, was in fact the defendant.
56. Fifth, as admitted by the defendant, the contents of the Banner and the said Plastic Banner clearly referred to the defendant (in fact, his name was stated) and the criminal proceedings that he faced in the Eastern Magistracy, which is something personal to the defendant himself. It is unthinkable that somebody else, other than the defendant, would have put up the Banners for him.
57. For these reasons, I am satisfied beyond reasonable doubt that it was the defendant who did the acts in each of the incidents complained of. And I so find.
I. OTHER MATTERS
58. What remains is the defendant’s contention that the said Plastic Banner did not expressly refer to the plaintiffs. This I reject. Any reasonable reader would have no difficulty to draw the inference that the contents referred to the plaintiffs. It is particularly so when the said Plastic Banner was placed next to the Cardboard, which made clear reference to ODN and the Ma family. I am satisfied beyond reasonable doubt that the said Plastic Banner did make reference to the plaintiffs.
59. For completeness, I would also mention that I am satisfied beyond reasonable doubt that the words published by the defendant on 4 June and 18 June 2008 in the manner as he did were clearly caught by the 2nd Injunction.
60. I am also satisfied beyond reasonable doubt that each of the breaches committed by the defendant was not accidental. Rather, they were all knowing and deliberate breaches.
J. CONCLUSION
61. For the above reasons, I find that the defendant did commit each of the breaches of the Injunctions as set out in each of the four Notices of Motion. He is accordingly found contempt of court as charged.
62. I will now hear the parties further and in particular any mitigation that the defendant may wish to make before passing sentence on him. I will also hear them on costs.
[Submissions]
K. SENTENCE
63. In civil contempt, the primary concern of the court is to ensure that orders of the court are to be obeyed. Thus in passing sentencing on a contemnor, the court takes into account the public interest in the administration of justice in order to bring home to the contemnor and litigants in general that court orders are not to be flouted. Disobedience of court orders, albeit in civil proceedings, has serious consequences, including imprisonment in cases of wilful breaches. See Abu Dhabi National Tanker Co. v. Lam Ming Chi [1998] 4 HKC 320, per Stone J at p. 336B-E; Re Texagar Ltd [2001] 2 HKC 426, per Chu J at p. 432G-H; Citybase Property Management Ltd v. Kam Kyun Tak (No. 2) [2003] 2 HKC 108, per Ma J (as he then was) at paras. 9-10 at p. 111D-G.
64. While imprisonment in civil contempt is a remedy of last resort, if the breaches of the court order are deliberate, it can often be appropriate : Excel Noble Development Ltd v. Wah Nam Group Ltd [2001] 4 HKC 148, per Rogers VP at p. 162E-F; Citybase Property Management Ltd v. Kam Kyun Tak (No. 2), supra.
65. When consider the length of imprisonment, the court needs to take into account all the circumstances, including the gravity of the breaches, the personal circumstances of the contemnor and all the mitigating factors that can be said in his favour.
66. Here, the defendant repeatedly committed the breaches on no less than seven days within two months between April and June 2008, right after the court granted the 1st and 2nd Injunctions. The breaches were not accidental. The defendant committed them continuously, knowingly and wilfully in complete and flagrant disregard of the Injunctions. His defiant attitude can be best demonstrated by the breaches that he made immediately after the court hearing on 4 June and before and after another court hearing on 18 June 2008 right at the entrance of the High Court building. He was in fact reminded of the 2nd Injunction by the court on 18 June 2008. But he committed the breach right after the court hearing. It is an affront to the due administration of justice.
67. Further, the defendant’s breaches of the Injunctions not only perpetuated the defamation against the plaintiffs. By displaying the banner outside the Legislative Council Building on Wednesdays when the Legco is in session, in the Statue Square in Central and in popular and crowded places in Causeway Bay during day time, the defendant plainly intended to arouse as much publicity as possible, with a view to inflicting the greatest possible harm to the plaintiffs’ reputation. Such appalling conduct is reprehensible.
68. The defendant is now 50 or 51. He is not sure about his age. He is married. He was recently released from jail and has since remained unemployed.
69. No doubt, the defendant harbours fierce hatred against the plaintiffs. He considers that ODN had framed him up in the criminal proceedings in the Eastern Magistracy. He even thinks that it was the plaintiffs who sent the assailant to attack him right after he was released from jail on 15 March this year. But there is simply no evidence in support of these wild allegations. Whatever grievance that he may have against the plaintiffs can hardly justify his breaches of the Injunctions at all.
70. I can see no mitigating factor.
71. Imprisonment is really in order. Taking the matter in the round, I will treat the breaches committed on each of 16 April, 23 April, 7 May, 14 May, 28 May, 4 June and 18 June as a separate incident of breach. Thus there are seven incidents of breach in total. I will impose 6 weeks’ imprisonment for each of these seven incidents, to run consecutively. Thus the overall sentence to be imposed is 42 weeks.
72. Finally, I will order that the defendant do pay the plaintiffs forthwith the costs of these contempt proceedings, to be taxed on an indemnity basis if not agreed.
| |
(J. Poon)
Judge of the Court of First Instance
High Court |
Mr Lawrence Ng and Mr Gary C.C. Lam, instructed by
Messrs Iu, Lai & Li, for the Plaintiffs
The Defendant, in person, present
[1] Per Ma CJHC a para.11.
[2] Contrary to section 15 of the Offences Against the Person Ordinance, Cap. 212 (OAPO).
[3] Contrary to section 23 of OAPO.
[4] That is the Second Letter.
[5] That is Inspector Yau.
[6] Amended on 20 May 2008.
[7] Mr Chui’s 1st affirmation dated 17 April 2008.
[8] Mr S Lai’s 1st affirmation dated 17 April 2008.
[9] Mr Wong’s affirmation dated 17 April 2008.
[10] Ms Lo’a affirmation dated 17 April 2008.
[11] Mr Tsang’s affirmation dated 24 April 2008.
[12] Mr S Lai’s 2nd affirmation dated 24 April 2008.
[13] Mr Lam’s affirmation dated 13 May 2008.
[14] Mr Tham’s affirmation dated 21 May 2008.
[15] Mr Chui’s 2nd affirmation dated 5 June 2008.
[16] Mr Chui’s 3rd affirmation dated 12 June 2008.
[17] Mr Chui’s 4th affirmation dated 27 June 2008.
Appeal by the defendant to Court of Appeal on sentence allowed. Please refer to CACV304/2008 dated 27 February 2009 |