SECRETARY FOR JUSTICE v. WONG HO MING

Press Summary (English)

Press Summary (Chinese)

CACV 259/2017

[2018] HKCA 173

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 259 OF 2017

(ON APPEAL FROM HCMP NO 798 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) :

1.  By a judgment handed down on 13 October 2017, Andrew Chan J found Mr Wong Ho Ming (“Mr Wong”),[1] together with 8 other respondents, guilty of criminal contempt (“Judgment”).  Mr Wong now appeals.[2]

2.  The background facts leading to the proceedings below are largely not in dispute.[3] They may be summarized 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).[4] 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.[5]  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.

A4.  Arrest of Mr Wong

37.  At about 10:18 am, after the first barricade near the junction of Argyle Street was removed, Mr Wong was standing in front of the police check line.  Upon instructions, Detective Police Constable 4844 Chan Wang-pok intercepted Mr Wong and arrested him for suspected contempt of court and obstructing a public officer contrary to section 23 of the Summary Offences Ordinance.[6]

38.  After arrest, Mr Wong was brought back to Kwai Chung Police Station for further enquiry.

B. CONTEMPT PROCEEDINGS BELOW

39.  Upon the application by the Secretary for Justice, Chow J on 30 July 2015 granted leave to commence the contempt proceedings against Wong and other respondents.  On the Secretary’s case, the particulars of Wong’s acts which constituted criminal contempt were :[7]

“45. As revealed from evidence, [Mr Wong] was found present in the Area for an extended period of time during the execution of [the Amended Injunction] and played a very active role in confronting/questioning the bailiffs :-

Approximate Time		Particulars of the Acts of the putative Respondent
8:44 a.m. to 8:50 a.m.	-	He kept asking the bailiffs whether a human being constituted an obstruction when the bailiffs marched down Nathan Road towards Dundas Street after the first announcements. During the second announcements, he persisted in his queries through a loudhailer.
8:51 a.m. to 8:58 a.m.	-	He was present in Nathan Road near the junction of Nelson Street with Mr WONG Chi-fung and later also with Mr Lester SHUM and kept asking [Chief Bailiff Kwan] through a microphone whether a human being constituted an obstruction. During the third announcements, he was standing next to Mr WONG Chi-fung and Mr Lester SHUM near to the bailiff officers.
9:43 a.m. to 9:47 a.m.	-	He was standing in the Area with Mr SZETO Tze-long Jason, Mr WONG Chi-fung and Mr Lester SHUM.
9:49 a.m. to 9:55 a.m.	-	He was standing next to Mr SZETO Tze-long Jason, Mr WONG Chi-fung and Mr Lester SHUM near the junction of Argyle Street, wearing a red cap and speaking through a microphone asking the bailiffs and Plaintiffs' legal representative how to identify Plaintiffs' authorized agents and whether a human being constituted an obstruction.
9:55 a.m. to 9:59 a.m.	-	When Plaintiffs' agents started to remove the barricades, he was standing right behind the barricades with Mr WONG Chi-fung and Mr Lester SHUM and persisted in questioning the agents' authority through a microphone. He ignored the bailiff officers' repeated requests to keep calm. After that, he remained present in the Area.
10:03 a.m. to 10:06 a.m.	-	He was standing right behind the barricades and speaking through a microphone. After that, when [CIP Lam] was giving out a warning, he was standing in the same position with Mr SZETO Tze-long Jason, Mr WONG Chi-fung and Mr Lester SHUM and spoke through a microphone.
10:11 a.m. to 10:15 a.m.	-	He was standing near to Mr WONG Chi-fung and Mr Lester SHUM in the Area. When [CIP Lam] was issuing the final warning, he was still standing in the Area.
10:18 a.m.	-	He was arrested by the Police.

40.  The Secretary pleaded :[8]

“ 47. In the premises, [Mr Wong] :

(1) was in the Area for an extended period of time and must have heard the repeated requests and warnings made by the Bailiff / Police Officers prior to the arrest;

(2) had ample opportunities to leave the Area prior to the arrest but decided against doing so; and

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

48. The deliberate acts of [Mr Wong] identified in paragraph 45 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.”

41.  The Secretary sought a committal order against Mr Wong that he be committed to prison and/or fined for criminal contempt of the court by interfering with and/or impeding the due execution of the Amended Injunction Order by refusing to leave the obstructed area covered by the Amended Injunction Order despite warnings.

42.  Mr Wong opposed the Secretary’s application for committal.  The hearing of his case, as well as other opposing respondents, before the Judge took 19 days to finish.  A total of 29 witnesses gave oral evidence for the Secretary.  The respondent in HCMP 796/2015, Ms Mak Ying Sheung, gave oral evidence and called 2 witnesses.  None of the other respondents, including Mr Wong, elected to give evidence or call any witness.

43.  Mr Lawrence Lok, SC, then representing Mr Wong and some other respondents, submitted that in order to succeed, the Secretary had to establish the necessary mens rea, namely that each of the respondents had the intention to interfere with the administration of justice.  However, the Judge at [45]-[54] of the Judgment referred to Secretary for Justice v Ng Wai Bing [2012] 1 HKLRD 245, where Tang VP at [23] endorsed the judgment of Wright J in [2011] 5 HKLRD 620 at [53]-[58] :

“ [53] … proof of a specific intent to interfere with the administration of justice would not be a prerequisite for liability for criminal contempt.

…

[57] In the circumstances I am satisfied that the applicant need only to show basic intent, that is that the respondents intended to perform the acts which constituted the actus reus of the contempt.

The nature of the act

   [58] The act which is said to constitute contempt of court is conduct calculated to prejudice or interfere with the due administration of justice, is inherently likely to do so.”

The Judge considered that the elements of criminal contempt had been settled by the Court of Appeal’s judgment in Ng Wai Bing.  He therefore rejected Mr Lok’s submission on the requirement to prove specific intent.

44.  Applying Ng Wai Bing, the Judge went on to say :

“ 55. Translating that into the present case, the applicant in order to succeed, needed only to prove that each of the respondents with the intention to remain, did remain in the Area. Further, their conduct in remaining was inherently likely to prejudice or interfere with the due administration of justice given the circumstances that the Bailiffs and the Plaintiffs’ agents were about to execute or executing the Amended Injunction Order in effecting the clearance and removal of obstacles. Whether each of the respondents did, in fact, obstruct or interfere with those who were responsible for clearing up the obstacles was not part of any legal requirement. Of course, if the evidence shows that the respondent did in fact obstruct or interfere with the clearing up of the obstacles, a fortiori, it would amount to criminal contempt.

56. It was further argued that since the respondents were doing nothing more than remaining at the Area, ie given their mere presence, they were at most only liable for disobedience of Term (a) of the Amended Injunction Order, hence civil contempt. In any given date prior to the 26th, I accept that that may be the case. However, this argument in my view ignores (i) the factual matrix against which the injunction was granted in the first place and that people had continued to occupy the Area; (ii) that at each stage of the injunction proceedings, the subject matter of the hearings and the result had been widely reported and advertised in the Local Media; (iii) that the clearance of obstacles on the previous day at Argyle Street had received extensive media coverage; (iv) that the imminent operation on the 26 November 2014 was widely reported likewise; and (v) that the warnings given by the Bailiffs and the Plaintiffs’ solicitors, in particular the demand made by the Bailiffs to the crowd in the Area to immediately pack their belongings and leave. The Bailiff’s demand in Chinese was : “請在上述範圍內嘅人士，立即收拾你哋嘅物品離開。”.

   57. Whether each of the respondents intentionally chose to remain and did remain at the Area, again adopting the words of Wright J, would be a matter of fact and degree in every instance, whether or not the alleged contempt was made out.”

45.  After disposing of further legal issues which do not concern this appeal, the Judge then discussed the evidence against each of the respondents.  Coming to Mr Wong at last, the Judge said :

“ 116. Mr Wong was first seen in the footage at around 8:44 am.

117. Video footage showed that when the Bailiffs and the Plaintiffs’ solicitors were moving along Nathan Road and making announcements at different locations, Mr Wong had repeatedly asked questions on (i) whether people present in the Area amounted to obstacles; (ii) whether the Plaintiffs’ agents had been properly authorised; (iii) how to ensure the content of the Amended Injunction Order being communicated to people present at the Area; and (iv) demanding the Bailiffs to use a bigger loudhailer. His challenges to the Bailiffs and the Plaintiffs’ solicitors were broadcast to the crowd. Nevertheless, the ways and manners adopted by Mr Wong were, on any objective viewing, desired to a certain extent, ridicule the Plaintiffs’ solicitors as well as to incite the crowd to continue their defiance.

118. The terms of the Amended Injunction Order were clear on their face. There were extensive legal arguments before Au J and the Court of Appeal. The proper way to clarify any purported uncertainty on the meaning and scope of the injunction should be to apply to the court to seek a variation or clarification. The same should also be applicable to the issue of authority of the Plaintiffs’ agents. Given the impracticality, it was therefore not surprising to see that nowhere in the terms of the Amended Injunction Order was there a requirement to prove authority to the protestors. There were hundreds if not thousands of them.

119. After the fifth announcement made by the Bailiffs and the Plaintiffs’ solicitors, the Plaintiffs’ agents began to clear the barricades. Mr Wong continued to challenge the Plaintiffs’ agents’ identity and authority and demanded the sight of written authorization. His presence and challenges undoubtedly created enormous burden on the Bailiffs and Plaintiffs’ agents. The emotions on both sides were high. Accusations and counter-accusations had been exchanged and given the chaos at the time, there was no way the Bailiffs and the Plaintiffs’ agents on their own could have carried out the clearance operation. The only resort was for them to seek the police’s assistance as contemplated.

 120.   At 10:02 am, the Bailiffs sought the assistance of the police.  At 10:03 am [CIP Lam] gave [the First Police Warning].  Mr Wong decided to remain in the Area. When the police moved in effecting his arrest, Mr Wong stood in front of the barricades.  Video footage showed that Mr Wong seemingly invited the police to arrest him and even signalled to the police that he had no weapon on his body.  The matters and observations mentioned from paragraphs 77 to 79[9] above are likewise applicable in Mr Wong’s case. His presence and challenges to the Bailiffs and the Plaintiffs’ agents were conducts not only inherently likely to but did factually cause prejudice to or interference with the clearance operation on that day hence the due administration of justice. Having considered all the evidence, I am satisfied that Mr Wong is guilty of criminal contempt.”

C. GROUNDS OF APPEAL

46.  Mr Martin Lee, SC (with Mr Hecter Pun, SC, Mr Earl Deng and Mr Anson Wong Yu Yat) raised a total of 11 grounds of appeal for Mr Wong.  In his written submissions, Mr Lee re-organized them into 5 grounds.  In gist :

(1) Ground 1[10] complains that the Judge erred in law in holding that proof of specific intent to interfere with the administration of justice is not a prerequisite for liability for criminal contempt in the circumstances of this case.

(2) Ground 2[11] is alternative to Ground 1.  It complains that, if Ground 1 is not accepted, the Judge erred in law in holding that the Secretary in order to succeed, needed only to prove that Mr Wong, with the intention to remain, did remain in the Area, in that he should have held that in order to succeed, the Secretary had to prove basic intent, that is, that Mr Wong intended to perform the acts which constituted the actus reus of the contempt.

(3) Ground 3[12] complains that the Judge made a host of errors in his findings of fact mainly relating to the events before the Final Police Warning.  The thrust of the complaint is that the Judge had failed to have proper regard or at all to certain uncontroversial and undisputed evidence which was favourable to Mr Wong, and had further erred in law in convicting Mr Wong of criminal contempt when the evidence taken as a whole did not and could not support such conviction.

(4) Ground 4 complains that the Judge erred in law when he used the First Police Warning given at about 10:03 am as the reference point in determining whether Mr Wong should have left the Area, in that he should but failed to decide whether Mr Wong had the intention to remain in the Area after the Police had finished giving the Final Police Warning at about 10:15 am; in which case he should have held that there was at least a reasonable doubt as to whether Mr Wong had the intention to remain in the Area at the material time because (according to the video evidence) Mr Wong and those around him were attempting to leave but were blocked by the police from leaving the Area at the time when the police was still giving the Final Police Warning.

(5) Ground 5 complains that the Judge erred in holding that Mr Wong had, by remaining in the Area, intended to and did obstruct or impede the bailiff, as opposed to the police, from effecting clearance and removal of the obstructions as provided in the Amended Injunction Order.

47.  As presently formulated, Grounds 1 and 2 concern the requirement of mens rea; Grounds 3 to 4, actus reus.  Ground 5 questions if Mr Wong intended to and did obstruct the bailiff.  It thus concerns both mens rea and actus reus.  We will discuss each of the Grounds in turn below.

D. GROUND 1 – MENS REA FOR CRIMINAL CONTEMPT

D1.  Overview of the parties’ submissions

48.  In contending that the Judge erred in holding that specific intent to interfere with the administration of justice is not a prerequisite for liability of criminal contempt, Mr Lee took three main points.

49.  First, Mr Lee argued that the starting point is that specific intent is required at common law.  He cited Dallas v United Kingdom (2016) 63 EHRR 13, at [72]; Arlidge, Eady & Smith on Contempt, 5^th Edition, 2017, §§3-273 to 3-275 and §3-45 in support.  It would appear that Mr Lee had slightly revised his position in the course of his oral submissions in response to questions from the Court.  He accepted that other than contempt in the face of the court or contempt akin to such form of contempt, which requires only basic intent, specific intent to interfere with the administration of justice is required for all other forms of criminal contempt.

50.  Second, Mr Lee submitted that Ng Wai Bing is distinguishable in that it concerned covert recordings of conversations in a witness room during trial, which is treated as a form of “contempt in the face of the court” – a special category of criminal contempt which does not cover the present case.  It is therefore not an authority that “proof of a specific intent to interfere with the administration of justice” is not a prerequisite for liability in all forms of criminal contempt.  Indeed, the circumstances in which criminal contempts of court may arise are too varied for one mens rea to be applicable to all forms of contempt.  Thus, instead of applying Ng Wai Bing, the Judge should have held that because the present form of criminal contempt is not the same as, but much more serious than, non-compliance with an injunction (as in civil contempt of court) or the summary offence under section 23 of the Summary Offences Ordinance, the Secretary had to prove specific intent in order to succeed against Mr Wong.

51.  Third, Mr Lee submitted that in line with the common law position, Au J in the Injunctions Judgment at [123] held that “an intention and act to interfere with or impede the due administration of justice is a criminal contempt : Halsbury’s Laws of England, Vol 22, [5]”.  The Judge ought to have followed and applied Au J’s approach to mens rea in the circumstances of the present case.

52.  In response, Mr Jin Pao (with Mr Derek Chan[13]) submitted the assertion that the starting point is that specific intent is required under common law incorrectly conflates the common law of Hong Kong with that of England.  The Hong Kong common law position is clearly stated in Ng Wai Bing, which is binding on the Judge as well as this Court.  In Ng Wai Bing, both Wright J and the Court of Appeal followed the pre-1981 English cases which established that a specific intent to interfere with the proper administration of justice is not an essential ingredient of criminal contempt : R v Odhams Press Ltd, ex p Attorney-General [1957] 1 QB 73; Attorney-General v Butterworth [1963] 1 QB 696.  As rightly observed by Wright J in Ng Wai Bing (CFI), at [45], the post-1981 English cases and views expressed by commentators after the Contempt of Court Act 1981 was introduced (“the 1981 Act”) on mens rea need to be approached with caution.  Further, that no specific intent is required is also the common law positon in New Zealand and Australia : see Solicitor-General v Radio New Zealand Ltd [1994] 1 NZLR 48; Hinch v Attorney-General (Vic) (1987) 164 CLR 15 and R v Lupco Slaveski [2015] VSC 400.  In the course of his oral submissions, Mr Pao clarified that for the purpose of this appeal, he was not advocating a broader proposition that for all forms of criminal contempt, only basic intent is required.  He was limiting his case to the particular form of contempt arisen in this appeal which, he contended, only required basic intent.  Finally, Mr Pao submitted that the reliance placed on Au J’s observation in the Injunctions Judgment, [123], is misplaced.

53.  Regarding Wright J’s observation in Ng Wai Bing (CFI) that the post-1981 English authorities need to be approached with caution, Mr Lee submitted that what the 1981 Act did is to limit the strict liability rule, as defined by the Act,[14] to publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.  Mr Lee reasoned that section 6(c) of the 1981 Act, which provides that nothing in the foregoing provisions of the 1981 Act restricts liability for contempt of court in respect of conduct intended to impede or prejudice the administration of justice, makes it clear that the UK Parliament intended to retain the application of the common law of contempt generally.  Thus its enactment only affects cases to which the strict liability rule applies and, apart from those cases, the common law requires proof of an intent to impede or prejudice the administration of justice : UK Archbold 2018, §28-35. 

D2.  Discussion

D2.1  Source of the common law

54.  In Hong Kong, apart from some few forms of contempt in the face of the court which have been codified and are punishable by the appropriate courts, which are immaterial for present purposes, contempt has always been a common law creature.  As such a creature, the law of contempt has been and continues to be developed and adapted to meet changing challenges to due administration of justice, an important facet of supremacy of the law.

55.  Before 1997, the Hong Kong law on contempt derived its source from the comparable English common law.  Mr Lee submitted that it remains the case after 1997.  In support, he cited Hong Kong Civil Procedure 2018, Vol 1, §52/1/1 :

“ The court’s jurisdiction in contempt is its inherent jurisdiction equivalent to the jurisdiction of the Queen’s Bench Division in England (High Court Ordinance (Cap.4) s.12(3)) …The substantive law of contempt is still the common law…”

As an example, Mr Lee referred to the Injunctions Judgment where Au J (with the assistance of eminent senior counsel) at [123] only cited English authorities to explain the law of contempt as applicable to Hong Kong.  With respect, Mr Lee’s submission on the source of common law on criminal contempt which Hong Kong courts may derive after 1997 is far too restrictive.  And the Injunctions Judgment as an example is not conclusive on the matter.

56.  After 1997, the source of common law available to Hong Kong is no longer limited to English common law.  For article 84 of the Basic Law expressly provides that Hong Kong courts may refer to precedents of other common law jurisdictions, without limiting to any particular jurisdictions.  Section 12(3) of the High Court Ordinance must now be read subject to article 84.  Thus after 1997, the available source of Hong Kong common law is no longer confined to English common law only.  It includes other common law jurisdictions, such as Australia and New Zealand.  The benefits of tapping the jurisprudence of the common law world without limiting to any particular jurisdiction are self-evident.  The primary imperative is to enable our courts, whenever necessary, to draw on the jurisprudential riches and experiences of the common law world, with a view to developing the Hong Kong common law pertaining to a given subject according to the local legal landscape and framework that best suits the needs of the local circumstances. When we consult other common law jurisdictions, we are of course keenly aware of the difference, if any, in terms of legal framework and societal circumstances, that may materially impact on how the subject should be approached or considered.  When such differences exist, we will approach the overseas cases with caution.  After giving due regard to the position in other common law jurisdictions, if necessary, it is ultimately a matter for our courts as to how we should develop our common law. 

57.  In light of the change introduced by article 84 of the Basic Law, the commentary in Hong Kong Civil Procedure 2018, Vol 1, §52/1/1 must now be read with circumspect. It cannot bear the meaning as contended by Mr Lee.  Turning to the Injunctions Judgment, it is but one of the cases where the law of contempt was mentioned or discussed.  The fact that Au J had only cited English authorities does not even begin to suggest that Hong Kong has since 1997 only followed English common law on contempt without regard to the comparable common law in other jurisdictions.  A ready example in which Hong Kong courts did consult common law in jurisdictions other than England for contempt is of course Ng Wai Bing.  Another example is Secretary for Justice v Oriental Press Group Ltd [1998] 2 HKLRD 123 where Chan CJHC and Keith J (as their Lordships then were) sitting as a divisional court applied New Zealand cases on contempt.[15] At the level of the Court of Appeal, Australian authorities on contempt were recently referred to in Secretary for Justice v Cheung Kai Yin [2016] 4 HKLRD 367.

58.  For present purposes, we will consider not only the relevant English authorities but also those of Australia and New Zealand in our discussion below.  As said, if the foreign legal regime is different from ours (eg the 1981 Act in England) and the difference has a material impact on the requirement of mens rea, we will read the authorities cautiously with that in mind.  To the English authorities we first turn.

D2.2  Mens rea under the English common law

59.  In England, mens rea in the law of criminal contempt had been described as “something of a minefield” : Attorney-General v Newspaper Publishing Plc (CA) [1988] 1 Ch 333, per Sir John Donaldson MR at p 373H.  His Lordship explained :

“ The reason is that it is wholly the creature of the common law and has developed on a case by case basis, as no doubt it will continue to do. [The 1981 Act] did not seek to systematize the approach of the courts.”

60.  As seen already, there is a line of pre-1981 authorities which established that specific intent to interfere with the administration of justice was not required for criminal contempt.  R v Odhams Press Ltd, ex p Attorney-General and Attorney-General v Butterworth are often referred to as the leading authorities.  However, it would appear that after 1981 the position has become less clear.  To get a flavor of the uncertainty surrounding mens rea for criminal contempt, one only needs to refer to the discussions in Arlidge, Eady & Smith on Contempt at §5-120 onwards for publication contempt falling outside “the strict liability rule”; and §11-23 onwards for non-publication contempt.

61.  The uncertainty remains despite some judicial observations which suggest that for criminal contempt an intent to impede or prejudice the administration of justice is required.  For example :

(1) In Attorney-General v Newspaper Publishing Plc (CA) (1988), a case involving a publication contempt, Sir John Donaldson MR said at p 374 G-H (and also p 383B) that what was contemplated by section 6(c) of the 1981 Act, and what was saved, was the power of the court to commit for contempt where the conduct complained of is specifically intended to impede or prejudice the administration of justice.  Such an intent need not be expressly avowed or admitted, but can be inferred from all the circumstances, including foreseeability.  However, in Connolly v Dale [1996] QB 120, a case involving a non-publication contempt, Balcombe LJ at pp 125H-126A only assumed, without deciding, that it was necessary to prove an intent to interfere with the course of justice, referring to Sir John Donaldson MR’s observation above.[16]  The fact that Balcombe LJ chose only to assume without deciding on the question of specific intent must mean that according to his Lordship, the view of the Master of the Rolls was not conclusive.

(2) In Dallas, which involved jury misconduct, the parties agreed that under the English common law of contempt, two elements should be present, namely, (1) there had to be an act which created a “real risk” of prejudice to the administration of justice; and (2) there had to be an intention to create the risk : see [72].  The Divisional Court held that in the circumstances of the case, if it was proved that the juror had deliberately disobeyed the judge’s direction prohibiting the obtaining of extraneous information relating to the trial, an intent to impede or prejudice the due administration of justice would also have been proved, which was upheld by the Strasbourg Court: see [73]-[74].   In Solicitor General v Cox & Another (Contempt of court: Illegal photography) [2016] EWHC 1241, Lord Thomas, LCJ at [66] observed that “the circumstances in which contempts of court arise are too varied for one mens rea to be applicable to all forms of contempt.  Nor is that the law.”  Thus for contempt in the face of the court or closely related to such contempt, a specific intent to interfere with the due administration of justice is not required.  His Lordship at [73] held that where the act constitutes a contempt in the face of the court, or one closely akin to such a contempt, the deliberate breach of a court order of which he has notice will be sufficient.  It is not necessary that the person additionally intended by his breach to interfere with the administration of justice although it will generally be inferred that such an intention is established.  Relevantly for present purpose, his Lordship for the reasons that he gave at [76]-[78] considered Dallas was consistent with his view on mens rea on the facts of the case before him.

62.  That being the present state of the common law in England, it is hardly surprising for the learned editors of Arlidge, Eady & Smith on Contempt to observe :

(1) At §3-45 : “In the case of criminal contempts not falling within the strict liability rule, it would appear that an intention to interfere with the administration of justice is required, at least for publication contempts.  For other types of criminal contempt, the mental element is less clear.”;

(2) At §11-24 : “A question remains, however, as to the nature of the mens rea required for common law contempt outside the context of publication, and particularly with regard to acts of direct interference with the processes of justice.”; and

(3) At §11-34 : “While no definitive answer can at present be given, it seems increasingly likely that except in the classes of cases considered by the Divisional Court in Solicitor General v Cox, the courts will insist as a necessary ingredient upon an intention to interfere, both in regard to publication contempts and other forms of interference with the administration of justice… It is necessary to enter the caveat that it is still possible that some categories of common law contempt will be treated as offences of strict liability.”

63.  Given the present state of uncertainty, we do not consider the commentary in UK Archbold 2018, at §28-35 relied on by Mr Lee is definitive on the subject.  It appears to us that in England, the common law position on mens rea for criminal contempt is still in a state of flux and hopefully clarity will emerge as the English courts continue to develop the law in the years to come.

64.  Thus analyzed, contrary to Mr Lee’s argument, we cannot discern a starting point even under English common law that specific intent is required for all forms of criminal contempt, other than contempt in the face of the court or contempt akin to such contempt.

D2.3  Mens rea under the common law of Australia and New Zealand

65.  Contrast the present English position with that in both Australia and New Zealand.  In the latter jurisdictions, the courts all follow the pre-1981 line of English authorities, mainly, R v Odhams Press Ltd, ex p Attorney-General; and Attorney-General v Butterworth and hold that for criminal contempt, no specific intent to interfere with administration of justice is required.  See the Australian and New Zealand cases cited by Mr Pao at [52] above.

66.  It would also appear that in Australia, no specific intent is required for all forms of non-publication contempt.  For in R v Lupco Slaveski, King J of the Supreme Court of Victoria at [88] reiterated :

“ There is a line of argument that what is required in non-media publication cases, is proof of an intent on the part of the respondent that he intended to commit a contempt of court. I agree … that it is not necessary to prove an intent to commit a contempt and that the mens rea required in respect of a contempt is proof that the person intended to do the acts which are capable of, or do, amount to contempt. In criminal terms it would be proof that the acts were conscious, voluntary and willed acts. The issue of intention is relevant to the seriousness of the charge, and the level of punishment that the contempt may attract.”

67.  The approach adopted in Australia and New Zealand provides a much needed element of certainty and uniformity in this area of the law.  But with respect, a universal requirement for mens rea in every form of criminal contempt seems to be too rigid : cf Lord Thomas’s remarks in Solicitor-General v Cox at [66], cited at [61(2)] above.  For example, when the alleged contempt is committed by a third party to the underlying proceedings, a specific intent may well be necessary : see [72] below.

D2.4  Mens rea decided in some Hong Kong cases

68.  Coming back to Hong Kong, there are instances where the Court of First Instance had applied R v Odhams Press Ltd, ex p Attorney-General and Attorney-General v Butterworth to the particular forms of criminal contempt before them.  For example, in Secretary for Justice v Oriental Press Group Ltd, Chan CJHC and Keith J at p 155 held that for (a) scandalizing the court by newspaper articles and (b) a sustained, physical, paparazzi-style pursuit of a judge who was the focus of the offending newspaper articles, specific intent to interfere with the proper administration of justice was not an essential ingredient for criminal contempt.  In so holding, their Lordships respectively adopted Solicitor-General v Radio Avon Ltd (at p 153) and Attorney-General v Butterworth (at p 157) for each of the two forms of contempt in question.  It is however important for present purposes to note that a careful reading of their joint judgment clearly showed that Chan CJHC and Keith J were searching for the proper mens rea for the particular forms of contempt before them.  They did not hold that as a general proposition no specific intent was required for all forms of contempt.

69.  Ng Wai Bing, which concerned covert recordings of conversations in witness room during trial, is another example.  In Ng Wai Bing, Wright J at [40] rightly observed that post-1981, a divergence had arisen between the approach of the courts in England on the one hand and Australia and New Zealand on the other regarding mens rea for criminal contempt.  After surveying the relevant authorities, Wright J preferred and adopted the approach of the latter jurisdictions which followed the pre-1981 English common law because like Australia and New Zealand, Hong Kong did not have any statutory intervention in this area like the 1981 Act.  In the Court of Appeal, Tang VP simply endorsed Wright J’s judgment without giving his own views.  It was in fact not necessary for him to do so as the Court of Appeal was only concerned with the sentence imposed by Wright J and not liability. However, although the Court of Appeal was only concerned with sentence, contrary to Mr Lee’s submission, it does not detract from Tang VP’s endorsement of the principles set out by him.

70.  While both Wright J and Tang VP spoke in general terms regarding mens rea, we do not consider a general proposition such as that for every form of criminal contempt there is no requirement for specific intent, forms the ratio decidendi of their judgments.  Such a general proposition is much wider than what was necessary to address mens rea for the particular form of contempt then before the court and hence unnecessary.  It is at most a non-binding obiter dictum.

71.  On the other hand, there is at least one instance where the Court of First Instance required proof of a specific intent for the forms of criminal contempt before the court.  In Secretary for Justice v Yuen Oi Yee Lisa, HCMP 2390/2008, unreported, 25 October 2010, the respondent was found guilty of civil contempt by breaching certain court orders and her undertaking given to the court; as well as criminal contempt for interference with the due and proper administration of justice by engaging in various forms of misconduct. Relevantly, Chu J (as she then was) drew a dichotomy between civil contempt and criminal contempt in terms of mens rea.  After referring at [18] of her judgment to Kao Lee &Yip (a firm) v Donald Koo Hoi Yan (2009) 12 HKCFAR 830, [43]-[53] for mens rea in civil contempt, she at [20] said that as for criminal contempt the mens rea required is an intent to interfere with the course of justice, but it needs not be the sole intent and it may be inferred. She cited Attorney-General v Punch Ltd [2003] 1 AC 1046, at [4], [66] and [87] and Attorney-General v Newspaper Publishing Plc (CA) (1988), at p 383B-C to support the proposition.

72.  However, it should be noted that both Attorney-General v Punch Ltd and Attorney-General v Newspaper Publishing Plc (CA) (1988) concerned contempt by a third party to the underlying proceedings who did the acts prohibited by the court orders to which he was not a party.  Thus the passages of the judgments referred to by Chu J were in fact made by the House of Lords and the English Court of Appeal in the context of a third party’s liability for criminal contempt.  Insofar as English common law is concerned, it is well established that a specific intent to interfere with the due administration of justice is required in order to impose liability on a third party for criminal contempt : see Z Ltd v A-Z and AA-LL [1982] QB 558, per Eveleigh LJ at p 578; cited with approval in Attorney-General v Times Newspapers Ltd (HL) [1992] 1 AC 191, per Lord Oliver at pp 217H-218E.  That being the case, we do not think Chu J’s judgment is capable of laying down a general proposition that specific intent is required for all forms of criminal contempt.  The fact that her Ladyship required proof of specific intent for the particular forms of criminal contempt before her does not necessarily mean that as a matter of general proposition, the same is true for all or other forms of criminal contempt.

D2.4  Mens rea for the present form of criminal contempt

73.  Where does the brief survey of cases above lead us?  As a matter of Hong Kong common law, how should mens rea be determined for criminal contempt generally and for the form of contempt involved in the present case specifically?  In searching for an answer, we propose to go back to first principles.

74.  The law of contempt is and must be founded entirely on public policy : Attorney-General v Times Newspaper Ltd (HL)[1974] AC 273, per Lord Reid at p 194 D. The relevant public policy considerations must guide the court in approaching and determining the content of mens rea for criminal contempt generally and for a particular form of contempt in a given case.  As Eveleigh LJ in Z Ltd v A-Z and AA-LL, at p 579D-G, explained :

“ In some kinds of contempt it is well established that no element of mens rea need to be shown…

However, contempt of court may take a wide variety of forms and the fact that it is regarded as an absolute offence in one form does not necessarily require it to be so treated in another form. It is very much a matter of public policy. In Attorney-General v Times Newspaper Ltd [1974] AC 273, 308, Lord Diplock said :

‘ no sufficient public interest is served by punishing the offender if the only person for whose benefit the order was made chooses not to insist on its enforcement.’

 I do not regard those words as saying that the court should ignore the fact that there has been a wilful disobedience of its order, but they emphasize the importance of the general public interest which exists in so many forms of contempt.  It does not seem to me to be in the public interest that a person with no wrongful intent should be brought before the court, let alone be punished, unless there is some overriding public interest to the contrary.”

75.  Although Eveleigh LJ was addressing a third party’s liability, two points arose from his judgment which are, in our view, of general applicability.  First, mens rea depends on the form of criminal contempt in question.  This echoes Lord Thomas’s remark in Solicitor General v Cox, at [66] that “the circumstances in which contempts of court arise are too varied for one mens rea to be applicable to all forms of contempt.”  Second, the determination of the applicable mens mea for a given form of criminal contempt is guided by public policy considerations. In our view, they should be equally applicable in Hong Kong.  In short, under Hong Kong common law, as a general approach, mens rea for criminal contempt should be determined by reference to the particular form of contempt before the court and the pertaining public policy considerations.[17] Unlike Australia or New Zealand, we do not apply basic intent to all forms of criminal contempt.  Nor do we adopt specific intent as a starting point for all forms of criminal contempt as contended by Mr Lee.

76.  In the instant case, the criminal contempt concerned a party who was bound by a court order but breached it by obstructing the bailiff in executing the same in the course of discharging his duty.  It is so because :

(1) The basis of the Secretary’s committal application against Mr Wong is that his deliberate acts, as identified in the Statement of Facts and Originating Summons, 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 in executing the Amended Injunction Order : [40] of the Originating Summons.

(2) Given the wide definition of “the 1^st Defendant” as persons occupying the public roads in question and the express plea at [39(3)] of the Originating Summons that Mr Wong acted in breach of the Amended Injunction Order, Mr Wong was on the Secretary’s case a party to the underlying proceedings, HCA 2104/2014, and was, in that capacity, bound by but had breached the Amended Injunction Order by doing the prohibited acts as pleaded.

77.  Regarding the form of criminal contempt that we need to deal with, the following are the pertinent public policy considerations and principles.

78.  First, it is axiomatic that in Hong Kong where the rule of law reigns, the due administration of justice can in no way be interfered with.  Those who strike at it strike at the very foundations of our society.  As Salmon LJ observed in Jennison v Baker [1972] 2 QB 52 at p 61, quoted by Lord Oliver in Attorney-General v Times Newspaper Ltd (HL) (1992) at p 216C-D :

“ The inherent power of the judges of the High Court to commit for contempt of court has existed from time immemorial.…The power exists to ensure that justice shall be done. And solely to this end, it prohibits acts and words tending to obstruct the administration of justice. The public at large no less than the individual litigant have an interest and a very real interest in justice being effectively administered. Unless it is so administered, the rights, and indeed the liberty, of the individual will perish.”

In a like vein, Lord Oliver at p 216A-B spoke of the court’s power to commit for contempt thus :

“ It is as essential as it is ancient, for unless litigants can be assured that the rights which it is the duty of the courts to protect can be fairly determined and effectively protected and enforced the system of justice necessarily ceases to command confidence and an essential foundation of the structure of civilized society is undermined.”

79.  Second, there are many facets of administration of justice that need to be protected.  So correspondingly, challenges to the administration of justice embrace various kinds of conduct.  The result is that contempt, which is only a generic term, in reality takes many forms : See Attorney-General v Times Newspaper (HL) (1974), per Lord Diplock at p 307H.  Despite its protean nature, contempt has been traditionally classified under two heads, namely, civil contempt and criminal contempt.[18]

80.  Civil contempt involves a breach of a court order or undertaking given to the court by a party to the proceedings.  As Lord Oliver in Attorney-General v Times Newspaper Ltd (HL) (1992) at p 217G-H explained :

“ One particular form of contempt by a party to proceedings is that constituted by an intentional act which is in breach of the order of a competent court. Where this occurs as a result of the act of a party who is bound by the order or of others acting at his direction or on his instigation, it constitutes a civil contempt by him which is punishable by the court at the instance of the party for whose benefit the order was made…”

For civil contempt, only basic intent in the sense that the contemnor’s conduct was intentional and that he knew of all the facts which made it a breach of the order, is required : Kao, Lee & Yip v Koo Hoi Yan, per Sir Gerard Brennan NPJ at [45]-[46] and [50]-[53].

81.  Criminal contempt involves other forms of interference with the due administration of justice, either in a particular case or more generally as a continuing process : cf Attorney-General v Newspaper Publishing Plc (CA), per Sir John Donaldson at p 362D.  It may be committed by a party to the proceedings or a stranger to the proceedings. In case of a stranger, it may involve him doing the act prohibited by a court order although he is not a party to the proceedings.  Again to quote Lord Oliver in Attorney-General v Times Newspaper Ltd (HL)(1992) at pp 217H-218A :

“ When, however, the prohibited act is done not by the party bound himself but by a third party, a stranger to the litigation, that person may also be liable for contempt.”

82.  Third, for civil contempt, it is ordinarily left to the party for whose benefit the order was made to pursue against the contemnor, that is, the party in breach of the order.  The party pursing a civil contempt is essentially taking it as a form of execution to coerce the contemnor into compliance with the order that he had breached.  For criminal contempt, it is a matter for the Secretary for Justice, in his capacity as the guardian of the public interest in the due administration of justice, to raise.  The sanction imposed on the contemnor is punitive in nature : Attorney-General v Newspaper Publishing Plc (CA) (1988), per Sir John Donaldson at p 362D-F; Attorney-General v Times Newspaper Ltd (HL) (1992), per Lord Oliver at p 217G.  Despite such a distinction, it does not mean that the public interest in due administration of justice in cases of civil contempt can be ignored.  It is wholly inappropriate to regard an order of committal in civil contempt as no more than a form of execution. For the court still has a very substantial interest in seeing that its orders are upheld : see Arlidge, Eady & Smith on Contempt, §§3-73 to 3-74, and the authorities discussed there.  

83.  Fourth, there are occasions where the disobedience or breach of a court order is sufficiently flagrant to warrant the imposition of a penal rather than a merely coercive sanction.  For example, the scale and nature of the breach of the order is such that the contempt threatens the due administration of justice as a whole.  Or when the disobedience or breach of the order also gives rise to a particular form of criminal contempt.  When such occasions arise, the civil contempt would also amount to a criminal contempt : see Report of the Committee on Contempt of Court 1974,[19] at §22.[20] 

84.  Fifth, execution of an order in a civil litigation is usually undertaken by the party in whose favour it was granted.  He would ordinarily enlist the bailiff’s assistance in execution as a last resort when all other means have failed.  Involving the bailiff is thus usually the tail end of the execution process.  And the bailiff is there not solely for the benefit of a private litigant.  In executing the order, the bailiff is also discharging his duty as an officer of the court.  In so discharging his official duty, the bailiff’s conduct in executing the order is part and parcel of the due administration of justice.  When a party in breach of the order obstructs the bailiff in executing the same, he is obstructing the due administration of justice, thereby committing a criminal contempt : Halsbury’s Law of England, Vol 22, §§17 and 49.  As Sir Richard Scott VC in De Court Re [1997] TLR 601, explained :

“ The administration of justice depends not simply on the judges or upon counsel in court, it depends upon court officials…discharging essential functions for the purpose of enabling cases to come to court and to be dealt with by judges and counsel in the way with which we are all familiar. In my judgment a physical interference with officers of the court while conducting their duty in furthering the administration of justice is indeed a contempt of court.”

85.  In De Court Re, the contemnor physically assaulted a court officer while he was engaged in official business.  It was held that he had the requisite mens rea if he intended to do what he had done and did it consciously.  In other words, a specific intent to interfere with the due administration of justice was not required.  In our view, there is no distinction in principle between an assault against a court officer in discharging his duty and other forms of interference with the latter’s performance of his duty.  The same requirement for basic intent would also suffice for the latter.  In cases of obstructing a bailiff in discharging his duty, such as executing a court order, the contemnor must know or be taken to know that in obstructing the bailiff, he is also at the same time obstructing the administration of justice.  Any requirement for specific intent is therefore superfluous.  In other words, no specific intent to interfere with the due administration of justice is required.

86.  But not only that.  When executing court orders, bailiffs act as an extended arm of the court in administering justice.  As a matter of public policy, bailiffs must be fully protected from interference by parties when executing orders against them in the discharge of their duty.  To require the proof of specific intent would open the door for arguments over what the alleged contemnor knew or did not know, intended or did not intend.  It would not only introduce much unwanted uncertainty into the equation where certainty is most required, but also make the very often difficult job of bailiffs even more difficult.  All this is bad for the due and effective administration of justice in Hong Kong.

87.  Any sense of injustice to the alleged contemnor arising from not requiring the proof of specific intent is militated by the fact that, by definition, (1) the alleged contemnor was a party who had been served with and was bound by the court order in question; (2) the person whose discharge of duty the alleged contemnor is said to have interfered with was to his knowledge a bailiff; and (3) to his knowledge also, the duty the latter was discharging was the execution of the very court order that the alleged contemnor had been served with and was bound by.

88.  Finally, if the order itself includes a provision to authorize the bailiff to execute the order and the party who is bound by the order obstructs the bailiff, he commits a breach of that aspect of the order, too.  But what he has committed is more than a civil contempt.  For the reasons stated at [84] above it also amounts to a criminal contempt.  And for the reasons stated at [85] to [87] above, a basic intent of obstructing the bailiff’s execution in breach of the order is sufficient.  No additional specific intent to interfere with the administration of justice is required.

89.  Applying the above public policy considerations and principles, we hold that when a party to a court order obstructs or interferes with the bailiff in executing the order, whether or not the order contains a provision authorizing the bailiff to do so, he commits a criminal contempt.  For such a criminal contempt, it is sufficient to prove as mens rea that he intended to do the acts which constituted the actus reus of the contempt.  No specific intent to interfere with the administration of justice is required.  In other words, so long as the acts of the alleged contemnor are inherently likely to obstruct or interfere with the bailiff when he is executing an order, and the contemnor intends to do the acts, that would be sufficient.  There is no need to go further to prove an intention on the part of the contemnor to interfere or obstruct though very often such intent is self-evident or can be readily inferred.

90.  Leaving these general principles and considerations and looking more closely at the facts of the present case, we have no doubt that this is a particular strong case for only requiring a basic intent for the criminal contempt committed by Mr Wong.

(1) We at [76] above have already explained why on the Secretary’s case, Mr Wong was a party to the underlying proceedings bound by the Amended Injunction Order but had acted in breach of the same by conducting himself in the manner complained of.

(2) The Amended Injunction Order is not a usual kind of interim injunction granted to a private litigant in an ordinary kind of civil litigation, which does not concern any persons not privy to the proceedings.  It is an interim injunction, widely publicized through the local media, targeted at the sizeable crowd of occupiers, whose identity is unknown in the case of the 1^st Defendant, who had been unlawfully occupying large portions of several main public roads in Kowloon 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 is 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 Plaintiffs and the Defendants by court process, which might well take some time to conclude.  There are accordingly considerable public interests involved in the Defendants fully obeying the Amended Injunction in a timely manner.  The public at large as well as the court itself have very substantial interests in seeing that is done.

(3) Given the immense public interests involved in the due administration of justice by Mr Wong complying with the Amended Injunction Order, by thwarting the Amended Injunction Order in the manner complained of, Mr Wong had seriously (a) frustrated its very purpose as explained above; (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 bailiff’s authority in enforcing it. His conduct had seriously interfered with the administration of justice by the established courts of law as a whole and constituted an affront to the rule of law.  His conduct is more than a civil contempt.  It plainly amounts to a criminal contempt which warrants the imposition of a punitive sanction.  The nature of his breach of the Amended Injunction Order was sufficiently flagrant enough to render his conduct a criminal contempt.

(4) Involvement of the bailiff for execution of 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.  That was highlighted by Au J in the Injunctions Judgment, at [142].  At [143], he went on to allude to the fact that (a) the ex parte injunctions that Poon J granted had been openly disobeyed and flouted by the Defendants en masse and (b) various public figures (including some legally trained individuals) suggested (erroneously) to the public and the protestors and demonstrators en masse to the effect that 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.  Although Au J’s observations were made in the context of explaining why the police authorization directions (Para 3 to Para 5 of the Amended Injunction Order) were required, they equally explained why the bailiff had to be appointed and authorized under Para 2 to execute the Amended Injunction Order. See also the CA Judgment, at [13]-[17].  Plainly, without the bailiff’s involvement, execution of the Amended Injunction Order in the then prevailing circumstances would be extremely difficult if not impossible.

(5) Self-evidently, Au J appointed the bailiff to execute the Amended Injunction Order with a view to arresting the imminent and serious risk of interference with the administration of justice posed by the occupiers’ continuous disobedience and flouting of the injunctions granted by the court.  Through the wide publication of the Injunctions Judgment in the local media, Mr Wong must be fully aware of the reason why the bailiff was so appointed.  When Mr Wong breached the Amended Injunction Order in the manner complained of, he knew that his conduct was more than a breach.  He knew that the very terms that he had breached, that is, those that specifically envisaged the involvement of the bailiff, were provided for in the Amended Injunction Order to prevent interference with the administration of justice as explained.  He knew by committing the breach, he had interfered with the due administration of justice.  In such circumstances, the questions whether his breach of the Amended Injunction Order was knowing and deliberate and whether it was intended to interfere with the course of justice really amount to the same question.  The need for some specific intent over and above the deliberate and knowing breach of the Amended Injunction Order is simply not required.

(6) Leaving aside the breach of the Amended Injunction Order, Mr Wong’s obstruction of the bailiff in executing the Amended Injunction Order is in itself an interference with the due administration of justice by obstructing a court officer in discharging of his duty.  It is in itself a criminal contempt which only requires a basic intent.

91.  To summarize the discussion so far, we reiterate that :

(1) Under Hong Kong common law on mens rea for criminal contempt :

(a) There is no starting point that for every form of criminal contempt, a specific intent to interfere with administration of justice is required.

(b) Nor is there a rigid rule that for every form of criminal contempt, only a basic intent to perform the acts which constituted the actus reus of the contempt is required.

(c) Whether a specific intent or a basic intent is required depends on the actual form of contempt before the court and the public policy considerations involved.

(d) When a party to a court order obstructs the bailiff in executing the order, whether or not the order contains a provision authorizing the bailiff to do so, he commits a criminal contempt. For such a criminal contempt, no specific intent to interfere with the administration of justice is required.  Proof of a basic intent would suffice.

(2) In the present context, a basic intent on Mr Wong’s part to perform the acts which constituted the actus reus of the criminal contempt complained of is sufficient.  A specific intent to interfere with the administration of justice is not required.

92.  This dealt with the first two main points taken by Mr Lee at [49], [50] and [53] above.  This leads us to his last main point at [51], which can be disposed of shortly.

(1) We agree with Mr Pao that Mr Lee’s reliance on Au J’s observation at [123] of the Injunctions Judgment was, with respect, misplaced.  There, Au J was discussing the arrest powers of the police in executing the Amended Injunction Order and other similar injunctions granted in the two other cases.  It was in that context that he stated the general proposition at [123].  He did not examine and could not have examined the applicability of that general proposition in the context of the actual committal application before the Judge later.

(2) In any event, for the reasons that we gave, the general proposition stated by Au J stated at [123] was not applicable in the present context.  There is no substance in Mr Lee’s complaint that in the interest of certainty, the Judge ought to have followed that general proposition in Au J’s judgment, which is not apposite in the first place.

(3) Mr Lee complained that it would be an abuse of process not to follow the general proposition in Au J’s judgment because the Secretary did appear before Au J and should not be allowed to “move the goal post” now.  But it begs the question if the Secretary had ever submitted to Au J that such a proposition should be adopted.  Mr Pao, who also appeared on behalf of the Secretary (as a non-party) before Au J, told us that he had not made any submission on mens rea before the learned judge.  That is really the end of Mr Lee’s complaint.

93.  To conclude, although we respectfully differ from the Judge in his reasoning, we hold that he was correct in ruling that no specific intent to interfere with administration of justice is required to establish liability against Mr Wong for the criminal contempt that he had committed.

94.  Ground 1 is rejected.

E. GROUND 2 – BASIC INTENT

95.  As an alternative to Ground 1, Mr Lee submitted that the Judge erred in law in holding that “the Secretary in order to succeed, needed only to prove that each of the respondents with the intention to remain, did remain in the Area”.  Mr Lee argued that the Judge should have at least held that in order to succeed, the Secretary had to prove “basic intent” in the sense that Mr Wong had “intended to perform the acts which constituted the actus reus of the contempt”, namely, to obstruct or resist the police and/or bailiff officers in executing the Amended Injunction Order, namely to effect the clearance and removal of the obstructions as provided in the Amended Injunction Order.  Harking back to Au J’s observation at [123(2)] of the Injunctions Judgment, Mr Lee argued that this is clearly what Au J meant when he referred to the situation where a person “deliberately impedes the bailiff in the due execution of his duties”. Mr Lee relied on Hills v Ellis [1983] QB 680, at p 686B, and submitted that an intention means “doing deliberate actions with the intention of bringing about a state of affairs which, objectively regarded, amount to an obstruction, that is, making it more difficult for the police to carry out their duty”.  He submitted in the present case, there was no evidence for the Judge to find that Mr Wong had any intention that his actions should result in making it more difficult for the bailiff and/or the police to carry out their duties under the Amended Injunction Order, that is, to remove the obstructions in the Area.

96.  With respect, we disagree.  Applying a basic intent, what is required to be proved is that Mr Wong intended to perform the acts which constituted the actus reus of the contempt.  And it will be sufficient if his acts are inherently likely to interfere with the due administration of justice.  Remaining in the Area in breach of the Amended Injunction Order is clearly inherently likely to interfere with the due administration of justice by impeding its effective enforcement by the bailiff and the police.  In the circumstances under which the Amended Injunction Order was executed by the bailiff on 26 November 2014, when Mr Wong had the intention to remain, did remain in the Area, the requirement for basic intent is satisfied.  If he did obstruct the clearance and removal of the obstacles, it would, a fortiori, amount to a criminal contempt.  The Judge was entirely correct in his reasoning and holding at [55] of the Judgment.  The same also applies to other acts constituting the actus reus found by the Judge against Mr Wong.  For completeness, we wish to state that we also agree with Mr Pao’s submission that Mr Lee’s argument is an impermissible attempt to introduce specific intent to the present form of contempt by the back door.

97.  We reject Ground 2.

F. Ground 3

98.  In contending that the evidence did not and could not support a finding of criminal contempt, Mr Lee complained that the Judge made a host of errors when he failed to consider or give proper regard to various aspects of the evidence.  The alleged errors include matters such as (1) the actual cause of commotion at 9:59 am; in particular, whether the Plaintiffs’ agents also contributed to its cause: (2) whether AC Bailiff Chim was able to complete giving the warning; (3) whether the bailiffs warned specifically Mr Wong that his manner of asking questions was obstructing the clearance operations; (4) whether Mr Wong’s asking questions on the spot was a more efficient way to clarify the terms of the Amended Injunction Order; (5) whether Mr Wong was prevented from leaving when the Final Police Warning was being given.

99.  We have carefully considered all the evidence including the video footages that the parties invited us to view with the benefit of their detailed submissions.  For present purpose, it is unnecessary for us to discuss each and every matter relied on by Mr Lee.  In our view, on an objective assessment of the evidence overall, how Mr Wong conducted himself at the material times showed, beyond reasonable doubt, that his acts were not only inherently likely to but did in fact impede and obstruct the bailiff officers in discharging their duty when executing the Amended Injunction Order.

100.  By arraying a wholesale attack against the Judge’s evaluation of the evidence, Mr Lee is in effect asking the Court of Appeal to re-try the case.  This is simply impermissible.  For although the appeal is a rehearing, the Court of Appeal only reviews the findings made by the Judge by well-established principles.  It does not re-try the matter : China Gold Finance Limited v CIL Holdings Limited, CACV 11/2015, unreported, 27 November 2015, per Lam VP at [11]-[25]; ZJW v SY, CACV 10/2017, unreported, 1 December 2017, per Poon JA at [25].  Mr Lee must persuade us that the findings made by the Judge were plainly wrong before we could interfere.  But his attempt to nitpick holes and magnify minute imperfections in the Judge’s fact finding exercise does not get him anywhere.  Contrary to Mr Lee’s argument, we are satisfied that the Judge’s finding that Mr Wong’s conduct did constitute impediment and obstruction against the bailiffs in discharge of their duty when executing the Amended Injunction Order is plainly correct.

101.  Ground 3 is rejected.

G. Ground 4

102.  Mr Lee submitted that the Judge erred in law when he at [120] of the Judgment used the First Police Warning issued at about 10:03 am as the reference point in determining whether Mr Wong should have left the Area.  Instead, he should have held that there was at least a reasonable doubt as to whether Mr Wong had the intention to remain in the Area at the material time because (according to the video evidence) Mr Wong and those around him were attempting to leave but were blocked by the Blue Team from leaving the Area at the time when CIP Lam was still giving the Final Police Warning.  Mr Lee argued that the purpose of the Final Police Warning was to give people a reasonable time to leave the Area.  The objective video evidence showed that Mr Wong had in fact attempted to leave the Area before CIP Lam finished reading out the Final Police Warning, but was prevented from doing so by the Blue Team.

103.  Mr Lee’s argument is premised on the assumption that whatever Mr Wong’s conduct might be before the Final Police Warning had been given, it could not possibly constitute the actus reus of criminal contempt in question.  He submitted that this is the effect of Para 4 of the Amended Injunction Order.  With respect, Mr Lee’s reading of Para 4 is wholly misconceived.

104.  To recap, Para 4 provides :

“(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.”

105.  In the CA Judgment, Lam VP clarified the effect of Para 4 thus :

“20. At one stage, we were concerned about whether the arrest provision places undue restrictions on the police by setting the following prerequisites: (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. These requirements were obviously laid down for the protection of the defendants and persons against whom the bailiff takes action pursuant to the order. On a proper reading of the order, it is clear to us that those 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. In our view, 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. Viewed thus, these requirements cannot be regarded as undue restrictions on the proper exercise of police powers.” (Emphasis supplied by Lam VP)

As said, the CA Judgment was widely reported at the time when it was handed down, that is 21 November 2014, before the present criminal contempt arose.  

106.  The CA Judgment made it crystal clear that the question of whether Mr Wong and indeed any person had committed the actus reus of the present criminal contempt could not possibly depend on the issue of any police warning, let alone the Final Police Warning.

107.  Mr Lee further submitted that pursuant to Para 4, the bailiff had to warn the person to be arrested that his action is likely to constitute (1) a breach of the Amended Injunction Order and (2) obstruction of the administration of justice before he could be said to have committed the actus reus of the contempt.  With respect, Mr Lee’s submission is plainly wrong.

(1) As a matter of law, the actus reus of the contempt in the form of obstructing a bailiff in discharging his duty does not depend on any prior warning given by the bailiff to the contemnor.  And Para 4 could not possibly have the effect of altering the law.  That is why at [20] of the CA Judgment, Lam VP in interpreting Para 4 did not include any warning by the bailiff to the contemnor that his action is likely to constitute an obstruction of justice as one of the prerequisites before a case of obstruction or interference with the carrying out of the bailiff’s duty can be made out.  Para 4 must be understood according to the Court of Appeal’s interpretation.

(2) As a matter of practicality, Mr Lee’s submission would render the bailiff’s task impossible.  Take this example.  A person did an act which was clearly an obstruction to the bailiff’s discharge of his duty when the latter was about to give the warning that the former’s act was likely to constitute an obstruction of the administration of justice under Para 4.  But because the bailiff had yet to give the warning, his act could not have constituted the actus reus of the contempt.  So that person could easily impede the bailiff in executing the Amended Injunction Order by continuing with his act while at the same time taking steps to prevent the bailiff from giving the warning.  This makes any effort by the bailiff to effectively execute the Amended Injunction Order a futile exercise.  Such absurdity could not have been intended by Para 4.

108.  In any event, as a matter of fact, the bailiff officers had since 8:40 am given repeated warnings to the occupiers, including Mr Wong, to leave the Area lest they might have obstructed the bailiff and committed a criminal contempt.  And when CIP Lam gave the First Police Warning at 10:03 am, he repeated the point that any person obstructing the bailiff might commit a criminal contempt.  The evidence shows clearly (and Mr Lee has not otherwise submitted) that Mr Wong could have left the Area after the bailiff made the various announcements between 8:40 am and before CIP Lam gave the First Police Warning at 10:03 am.  But he chose to remain throughout.  By 10:03 am at the very latest, he had already committed the actus reus of the criminal contempt.  In fact, the Judge could have used earlier moments, such as 8:44 am, that is, shortly after the first announcements by the bailiff officers, as the reference point in determining if Mr Wong should have left the Area.  There is nothing wrong for the Judge to adopt the First Police Warning given at 10:03 am as the reference point, which is more favourable to Mr Wong.

109.  Ground 4 is rejected.

H. Ground 5

110.  We finally come to Ground 5.

111.  Mr Lee argued that the Judge erred in holding that Mr Wong had, by remaining in the Area, intended to and did obstruct or impede the bailiffs, as opposed to the police, from effecting clearance and removal of the obstructions as provided in the Amended Injunction Order.  The Judge failed to take into account the uncontroversial evidence of Chief Bailiff Choi in cross-examination[21] that the police had decided, on its own, to take over the whole operation by replacing the bailiffs and taking it upon themselves to remove obstructions from the Area, even though the bailiffs had only invited the police to assist them in crowd control due to the commotion as opposed to clearing the obstructions in the Area.[22] After the police had automatically taken over and the bailiffs had left the scene, the police were no longer assisting the bailiffs to execute the Amended Injunction Order pursuant to any request from the bailiffs under Para 3 in removing obstructions from the Area, as the bailiffs had never requested the police to do so and the police were exercising their statutory power under section 10(f) of the Police Force Ordinance, Cap 232.  Therefore, Mr Lee reasoned, the Judge failed to hold that in law Mr Wong could not have obstructed or impeded the bailiffs, as opposed to the Police, from clearing or removing the obstructions in the Area pursuant to the Amended Injunction Order, as opposed to the statutory power to remove obstructions from the Area.  Thus, Mr Lee submitted that while Mr Wong might have been guilty of the offence of obstructing the police in the due execution of their duty, he could not have been guilty of criminal contempt in connection with the Amended Injunction Order.

112.  Mr Lee’s submission ignored the fact that on the findings made by the Judge, even before police’s intervention, Mr Wong had already committed the criminal contempt by conducting himself in the manner complained of.  And in any event, pursuant to Para 3, the bailiffs were specifically “authorized and directed to request the assistance of the police where necessary”.  There is no limitation as to what assistance the bailiffs might wish to request from the police.  The evidence clearly showed that the bailiffs were unsuccessful in removing the obstructions in the Area.  It is for that reason that they requested the assistance of the police.  The evidence of Chief Bailiff Choi must be understood in its totality.  He did say that the bailiffs passed the responsibility of the clearance operation to the police in accordance with the Amended Injunction Order, and he understood that the police were permitted to execute the same.[23] In response to the Judge’s question as to the role of the police, Chief Bailiff Choi said the police were expected to carry out the Amended Injunction Order, which included clearing of obstructions.[24]  When Chief Bailiff Choi’s evidence is understood properly, it is beyond doubt that the bailiffs had requested the police to assist in executing the Amended Injunction Order, and that the police did not take it upon themselves to remove the obstacles as contended by Mr Lee.  The police were clearly assisting the bailiffs as officers of the court in the discharge of the latter’s duty, as expressly provided for by Para 3.  The fact that the actual clearance was effected by the police and not the bailiffs and after the bailiffs had left the scene is wholly immaterial.  Nor does it matter that Mr Wong’s current conduct might have amounted to obstructing the police, a separate criminal offence.  For it is simply not a defence to his liability for criminal contempt.

113.  We reject Ground 5.

I. Dispositions

114.  For the above reasons, none of the grounds of appeal succeeds.  We accordingly dismiss Mr Wong’s appeal.

115.  Costs should follow the event.  We make an order nisi that Mr Wong do pay the Secretary costs of this appeal, to be taxed if not agreed, with a certificate for two counsel.  Mr Wong’s own costs are to be taxed in accordance with the legal aid regulations.