Secretary for Justice v. Chu Pui Yan
Read the full judgment text of HCMP 778/2015 on BabelCite. This High Court CFI judgment was delivered on 13 October 2017.
1. This is a criminal contempt application, pursuant to leave granted on 30 July 2015, by the Secretary for Justice for the committal of the nine respondents in relation to events which took place on 26 November 2014 in the portion of Nathan Road between Argyle Street and Dundas Street in Mong Kok, Kowloon (“the Area”). This case is not about the right or wrong of the “Occupy Movement”.
Cited by 5 cases · Cites 7 cases
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HCMP 778/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NOs 778, 780, 783-784, 788-789, 791, 796, 798 OF 2015 _________________
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_________________ Before: Hon Andrew Chan J in Court Date of Hearing: 3, 7, 10, 11, 12, 13, 17, 18, 19, 20, 21, 24, 26, 27, 28, and 31 July 2017; 9, 22, and 24 August 2017 Date of Judgment: 13 October 2017 _________________ JUDGMENT _________________ Introduction 1.This is a criminal contempt application, pursuant to leave granted on 30 July 2015, by the Secretary for Justice for the committal of the nine respondents in relation to events which took place on 26 November 2014 in the portion of Nathan Road between Argyle Street and Dundas Street in Mong Kok, Kowloon (“the Area”). This case is not about the right or wrong of the “Occupy Movement”. 2.The relief sought in the originating summons against the nine respondents includes that the respondent be committed to prison and / or fined for criminal contempt for interfering with and / or impeding the due execution on 26 November 2014 of the injunction order made by Au J on 10 November 2014 as amended on 21 November 2014 in HCA 2104 of 2014 by refusing to leave the Area covered by the injunction order despite repeated warnings. 3.The grounds for the application are set out in the Amended Statement of Facts filed in August 2015 in respect of each respondent. The Amended Statement of Facts sets out the background of the case. Most of the background facts are not disputed. They can be used conveniently as the background in this case. Background The Amended Injunction Order 4.As a result of what was generally known as the “Occupy Movement”, a significant part of the public highway in Mong Kok, namely, the portions of Nathan Road between Argyle Street and Dundas Street had been occupied by different individuals since late September 2014. The general public was thereby prevented to a varying extent from using the relevant roads/streets. 5.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) (collectively “the Plaintiffs” in HCA 2104 of 2014 (“the underlying civil action”)) 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 1st Defendants in the underlying civil action”). 6.On the same day, before Poon J (as he then was) in chambers (open to the public), an injunction order was granted (“the ex parte injunction order”) until the return date on 24 October 2014. 7.The granting of the ex parte injunction order was widely reported in the mass media including, inter alia, English and Chinese newspapers with wide circulation in Hong Kong, major radio and television service providers such as Radio Television Hong Kong, Commercial Radio Hong Kong, and Television Broadcasts Limited, etc, and various sources on the internet (“the Local Media”). 8.At the hearing of the inter partes application on 24 and 27 October 2014, before Au J in chambers (open to the public), judgment was reserved after the inter partes hearing and the ex parte injunction order was continued in the meantime. 9.The inter partes hearing and the continuation of the injunction were also widely reported by the Local Media. 10.By judgment dated 10 November 2014, Au J ordered that the ex parte injunction order be continued (“the Injunction Order”). The terms of the order made were finalised after a directions hearing on 13 November 2014 and amended by the judgment of 21 November 2014 (“the Amended Injunction Order”). As amended, the terms were as follows: -
The handing down of the judgment and the sealing of the Amended Injunction Order were also widely reported by the Local Media. 11.After the handing down of the judgment on 10 November 2104, various applications for leave to appeal were dismissed by Au J and by the Court of Appeal (Cheung CJHC, Lam VP) respectively. The dismissal of the leave applications was likewise widely reported by the Local Media. Service of the Amended Injunction Order 12.Pursuant to paragraph 6 of the Amended Injunction Order, Au J granted leave to serve the Amended Injunction Order on the 1st Defendants in the underlying civil action, by placing an advertisement in one Chinese and one English newspaper circulating in Hong Kong; and placing the Order (with a Chinese translation of the same) in clear plastic envelopes and attached to a board or post, or other prominent location in the Area (with the permission of the Police or another government authority), together with a notice (in Chinese and English) notifying the 1st Defendants that they could obtain copies of the Order, the Inter Partes Summons, Writ of Summons and supporting Affirmations by applying to the Plaintiffs’ solicitors at an identified address during normal office hours upon payment of the usual photocopying charges. 13.An assistant solicitor of the solicitors for the Plaintiffs in the underlying civil action made an affirmation that on 24 November 2014, an advertisement of the Amended Injunction Order was made in one Chinese and one English newspapers, namely Sing Tao Daily and The Standard respectively, circulating in Hong Kong. 14.On 9 March 2015, Lee Chi Leung, a bailiff officer made an affirmation for the following actions: -
15.The service of the Amended Injunction Order was widely reported by the Local Media. Execution of the Amended Injunction Order on 26 November 2014 16.Prior to 26 November 2014, it was already widely reported in the Local Media that the Plaintiffs and Bailiff Officers were going to take action on 26 November 2014 to execute / carry out the Amended Injunction Order. 17.Indeed, the Bailiff Officers did on 25 November 2014, execute / carry out the injunction order in similar terms granted by Au J in another case (ie HCA 2086 of 2014) over portions of Argyle Street between the junction of Tung Choi Street and that of Portland Street. The enforcement action of the said injunction order was widely reported by the Local Media. 18.On 26 November 2014, the Bailiff Officers executed the Amended Injunction Order in Mong Kok at the Plaintiffs’ request. Unless otherwise stated, all references as to time herein below refer to the time of 26 November 2014. 19.At about 8:00 am, Sergeant Li Kwong (“PW1”) (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 Police Public Announcement (“PA”) System”). The PA System was working properly throughout the operation on 26 November 2014. 20.Around 8:05 am, the Plaintiffs’ legal representatives and lawful agents, certain Bailiff Officers and Police Officers (“the Execution Team”) gathered at Argyle Street for the preparation of the enforcement of the Amended Injunction Order. The First Announcements (Argyle Street junction with Nathan Road) 21.At about 8:40 am, Assistant Chief Bailiff Chiu Shuk Man (“PW2”) made an announcement at the junction of Argyle Street and Nathan Road (near to HSBC at No 675, Nathan Road). Through the loudhailer, PW2 explained to the crowd at the scene that the Bailiff Officers were there to enforce the Amended Injunction Order. The following announcement was made:
Following that, the Plaintiffs’ legal representatives made an announcement in Chinese of the contents of the Amended Injunction Order through the loudhailer in the following terms:
22.Following that, shortly before 8:44 am, PW2 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. The crowd was also advised to obey the Amended Injunction Order and to leave the Area immediately. The Second Announcements (Nelson Street junction with Nathan Road) 23.At about 8:45 am, Acting Assistant Chief Bailiff Yu Tak Shun (“PW4”) repeated the Bailiff’s announcement through a loudhailer near the junction of Nelson Street and Nathan Road outside Watson’s at 637 Nathan Road. Following that, the Plaintiffs’ legal representatives also repeated the Plaintiffs’ announcement at about the same location. 24.Shortly before 8:50 am, PW4 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. The crowd was also advised to obey the Amended Injunction Order and to leave the Area immediately. 25.After the aforesaid announcements, the Execution Team marched down Nathan Road towards Dundas Street. During the course, a crowd of people (including Mr Wong Chi Fung and Mr Wong Ho Ming) 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 (“PW3”) informed them that the Bailiff Officers would soon announce the details and invited them to listen carefully to such announcements. The Third Announcements (Shantung Street junction with Nathan Road) 26.At about 8:51 am, PW2 repeated the Bailiff’s announcement through a loudhailer at the junction of Shantung Street and Nathan Road. Following that, the Plaintiffs’ legal representatives also repeated the Plaintiffs’ announcement at about the same location. 27.Shortly before 8:56 am, PW2 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. The crowd was also advised to obey the Amended Injunction Order and to leave the Area immediately. The Fourth Announcements (Dundas Street junction with Nathan Road) 28.At about 9:05 am, PW4 repeated the Bailiff’s 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. 29.Following that, shortly before 9:10 am, PW4 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. The crowd was also advised to obey the Amended Injunction Order and to leave the Area immediately. The Final Announcements (Argyle Street junction with Nathan Road) 30.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, PW4 and PW2 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, PW2 requested the Plaintiffs’ legal representatives and the lawful agents to clear the barricades (which consisted of Mills barriers, planks and other objects) in front of them. Clearance of the Barricades 31.During the clearance of the barricades near HSBC (at the junction of Argyle Street and Nathan Road), Mr Wong Chi Fung and Mr Wong Ho Ming 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. 32.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 (“PW5”) immediately advised the crowd (through the loudhailer) to keep calm and not to obstruct or impede the Bailiff Officers from carrying out their duties. During the confusion, PW5 was pushed; PW2’s sunglasses fell off to the ground; and PW4’s right shank was hit by a Mills barrier. Request for Police Assistance 33.PW5 immediately made the following warning:
34.Despite such warning, the crowd did not desist. Therefore, Chief Bailiff Choi Tak Ming (“PW6”) formally requested the assistance from the police at about 10:00 am pursuant to paragraph 3 of the Amended Injunction Order. Acting on such request, the police started to take charge of controlling the crowd and clearing the barricades. Police Actions 35.At about 10:05 am, Chief Inspector of Police Lam Chi Yuen (“PW7”) issued a verbal warning (via the PA System) at Nathan Road near Argyle Street to the crowd in Chinese and English in the following terms:
36.At about 10:12 am, PW7 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. 37.At about 10:15 am, as the crowd ignored the verbal warning, PW7 gave a final verbal warning (via the PA System) to the crowd at the same location in Chinese and English in the following terms:
38.Notwithstanding the repeated warnings from the Bailiff Officers and the Police as aforementioned, the crowd still refused to leave the Area. As a result, PW7 instructed the police officers at the scene to arrest those people who caused obstruction in the Area and refused to leave. 39.With such instruction of PW7, the police check line (which was formed by police officers) progressed from the junction of Argyle Street and Nathan Road along Nathan Road towards Tsim Sha Tsui direction. 40.Between 10:25 am and 12:00 pm, Chief Inspector of Police Sean Lin (“PW8”) and Senior Inspector of Police Cheung Kin Pan (“PW9”) took turn to make public announcements through the PA System and a microphone along Nathan Road from Argyle Street towards Dundas Street. The content of such public announcements included advice to the crowd, onlookers and press at scene to take care of their own safety, that the police might raise the level of appropriate use of force, including the use of water jet pack of pepper‑spray‑based solution, if deemed necessary. PW8 and PW9 also advised the crowd to leave the Area via Tsim Sha Tsui direction in an orderly manner and not to obstruct police officers in the execution of their duties. 41.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 Tsim Sha Tsui direction, PW7 issued the final warnings once again. Afterwards, the police officers started arresting those people causing obstruction and refusing to leave. 42.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. 43.During the operation, several police video teams were deployed to capture the incident from different locations. 44.Before the consideration of each of the respondent’s case, a number of issues, common to some if not all, had been raised. Criminal Contempt 45.One of the issues argued by the respondents, in particular, respondents represented by Mr Lok, was the elements of the offence of criminal contempt. It was submitted that, in order to succeed, the applicant had to establish the necessary mens rea, namely that each respondent had the intention to interfere with the administration of justice. 46.Mr Lok essentially relied on two judgments. The first was Chiu Luen Public Light Bus Co Ltd v Persons Unlawfully Occupying or Remaining on the Public Highway and others (2014) 6 HKC 298. When Au J dealt with the police authorisation direction, he mentioned in his judgment the following passages:
47.Mr Lok placed particular emphasis on paragraph 123(2). After a careful read of the judgment, it seems clear to me that Au J was principally examining the origin of the police power to arrest, hence the offence of criminal contempt was mentioned. What Au J did not do was to analyze and assess the mens rea requirement in any depth. Cases cited to him were cases from England post 1981. For reasons stated below, we now know that those cases should be read with caution. 48.The same can be said of the second judgment relied on by Mr Lok. In the Secretary for Justice v Yuen Oi Yee Lisa (unreported, HCMP 2390/2008, 25 October 2010), Chu J made the following observation:
49.Again, Mr Lok placed emphasis on “the intent to interfere with the course of justice”. In fact, four days before on 21 October 2010, Wright J delivered the judgment in the Secretary for Justice v Ng Wai Bing [2011] 5 HKLRD 620 in which, after consideration of the history of criminal contempt and relevant authorities from England as well as Australia and New Zealand in details, he came to the conclusion that the proof of specific intent to interfere with the administration of justice was not required. 50.Wright J mentioned in his judgment:
51.As to cases cited from England prior to 1981, Wright J sounded the warning:
52.Nowhere in Chiu Luen Public Light Bus or Yuen Oi Yee Lisa was there any detailed argument or discussion about the necessary requirements of mens rea in criminal contempt. 53.In addition to discussion regarding mens rea, the actus reus of the offence was also discussed in Ng Wai Bing. Paragraphs 58 and 60 of Wright J’s judgment continued as follows:
54.The case went to the Court of Appeal (Tang and Stock V‑PP and Fok JA as they then were). Tang VP expressed his agreement:
As far as this court is concerned, the elements of the offence of criminal contempt have been settled by Ng Wai Bing[1]. That decision is binding. 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，立即收拾你地嘅物品離開。” 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. 58.It was somehow suggested that criminal contempt involved a “serious” interference with the administration of justice or a “serious” affront to the authority of the court. In other words, the interference and affront had to be serious, nothing less would suffice. In support of this legal proposition, the respondents relied on the Secretary for Justice v Cheung Kai Yin (No 2) [2016] 5 HKLRD 370. 59.Having read the judgment carefully, I do not think the Court of Appeal was adding an additional element into the offence. The word “serious” was used simply because in that case the Court of Appeal was contrasting criminal contempt with firstly the minor nature of the summary offence of Obstruction of Public Officer and secondly the mere disobedience of a court order, a less serious form of interference with the administration of justice. The word “serious” came into play under those legal contexts. Police Power of Arrest 60.Another issue raised during the course of the trial was the source of police power in arresting the respondents in this case. Having read paragraphs 126 and 127 of Au J’s judgment, it is clear that the police power originated from the Police Force Ordinance. Term (4) of the Amended Injunction Order did not confer onto the police extra power, rather it simply reinstated the origin of the police power in an unambiguous manner, so that, there was no confusion. This point was subsequently confirmed by the Court of Appeal (Cheung CJHC and Lam VP) in Chiu Luen Public Light Bus Company Limited v Persons Unlawfully Occupying and others (unreported HCMP 3028/2014 dated 21 November 2014):
61.Consequently, in so far as the arrest of each of the respondents by the police is concerned, its relevance lies in the fact that by the time the police took arrest action, the respondents were still present at the Area (subject to the allegation that they were not allowed to leave). The circumstances pertaining to their actual arrest bore little relevance to whether they had committed criminal contempt. The Pleaded Case 62.In the course of the trial and more particularly during final submission, it was put forward by the respondents that the applicant had departed from their pleaded case and attempted to introduce new grounds and caused unfairness to the respondents in meeting their cases. 63.The alleged new grounds contained descriptions of the respondents’ other movements and conducts when they were present at the Area, for example in Chu Pui Yan’s case, the inclusion of her presence at an earlier time and posing for photographs with other people. 64.The purpose of Order 52 statement is simply to provide the respondents with enough information so as to enable them to meet the charge. It is not required to set out all the relevant evidence relied upon to establish the contempt.[2] 65.The case pleaded by the applicant was a lengthy one. It started with background information and ended with the arrest of each respondent. Paragraphs 4 to 43 stated above contain most of the pleaded case except the details in respect of the arrest of each of the respondents. In the pleaded case, the crowd was however referred to as the “obstructing crowd” and the allegation of the presence of each respondent was made in that light. The applicant then described the evidence that they would essentially rely on, namely video evidence that captured the acts and movements of the respondents. Given the length of the video evidence, particulars of their acts and movements were given. The pleaded case then concluded with the following paragraphs:
66.In my view, the pleaded case was clear. It was the presence of the respondents and their acts and movements which had caused interference and / or obstruction to the clearance operation. One should have little difficulty in understanding the applicant’s case on any objective reading. If that was not clear enough, the opening of the applicant put the applicant’s position beyond any dispute. At paragraph 85 of the opening it was stated that the essential allegation against each respondent was that they were found present in the Area during the execution of the Amended Injunction Order. 67.Subject to fairness, addition of new evidence is not unacceptable. In the case against Chu Pui Yan, the applicant was permitted to add fresh particulars which indicated her presence at much earlier times. The ground relied upon by the applicant remained the same, namely that the respondent was found to be present in the Area as part of the crowd despite numerous warnings being given. Her presence at earlier times was only revealed because video footage (unused by the applicant initially) had been used by the respondent in cross‑examining witnesses for the applicant. It was further argued by Mr Lok that this court should not be looking at any other video footage, either before or after the one used for cross examination, even though they were taken by the same police officer within the same video. I disagree. Matters must be judged in their context. So long as they are relevant to the determination of an issue in this case, I do not see any rule precluding the court from viewing them. In any event, all the video evidence, whether used or unused video, had been provided to the respondents prior. No challenge had been made as to the authenticity of the video. No witness was required to be recalled and as such I fail to see any unfairness. The same can be said to be applicable to other respondents. 68.Bearing in mind the elements of the offence, I now proceed to evaluate the evidence against each of the respondents. 69.These proceedings are brought by the Secretary of Justice against the nine respondents, the burden of proof rests on the former throughout and the standard of proof required is beyond reasonable doubt. Although a number of witnesses had been called by the applicant, with the exception of a few, their evidence was practically unchallenged. This was so because the most crucial evidence came from the video footage taken by different teams of police officers. Generally speaking, very little challenge was made against witnesses’ credibility. In view of the rather chaotic situation on that day, reliability issues were taken in respect of some witnesses. Again these issues were not seriously challenged. Given the existence of the unchallenged video evidence, the facts of this case, in particular the relevant conducts of each respondent, could therefore be readily ascertained with little difficulty. 70.I will first deal with Mr Lok’s three clients. HCMP 778/2015 Chu Pui Yan 71.Ms Chu was first spotted being present in the Area at about 8:48 am. Video footage depicted her wearing a mask and a T‑shirt “堅持到底 Never give up”. I mention the words showing on her T‑shirt not because I wish to endorse or condemn her decision in support of or against the “Occupy Movement”, it is simply because one of my duties requires me to make a determination in accordance with legal principle as to whether Ms Chu intentionally chose to remain in the Area or rather it was a mere presence. This is one piece of circumstantial evidence. 72.Ms Chu was also seen posing for photographs with a group of young people outside HSBC. This was after the Bailiffs and solicitors for the Plaintiffs had made their first announcement at the Nathan Road / Argyle Street junction at about 8:38 am and walked past her and the group of young people. 73.In fact, two further announcements were made between 8:45 am and 9:00 am. During these three announcements, Ms Chu was either sitting on or standing near a sofa outside HSBC. She remained outside HSBC till 10:29 am, not far away from where the second announcement was made. 74.After the Bailiffs’ request for police assistance and the arrival of police officers in front of the barricades, PW7 Chief Inspector Lam Chi Yuen gave his warning at around 10:03 am. Ms Chu at this juncture was present outside HSBC within a short distance from the barricades. I have no doubt that she was able to hear the police warning. Ms Chu could have left the Area as video evidence indicated that there was still ample opportunity for her to do. Yet Ms Chu chose to remain. Shortly before 10:29 am when police officers proceeded to dismantle barricades and obstacles, Ms Chu continued to stay in the middle of Nathan Road. 75.Ms Chu was seen again at about 10:46 am standing right in front of the police check line. By then she had put on her mask and goggles and continued to face the police check line while walking backwards along Nathan Road. 76.At about 11:07 am, the police check line had reached Nathan Road / Shantung Street junction. After another warning had been given, Ms Chu was arrested shortly afterwards. 77.As mentioned above, between the application for an injunction order in October and the Bailiffs and the Plaintiffs’ agents carrying out the operation in November, all the relevant matters had been widely reported in the Local Media for a month. On the 25th, there was a clearance operation in Argyle Street, a very short distance away, that too was widely reported. The Bailiff’s announcement was clear. It essentially informed the crowd to pack up their belongings and leave as the Bailiffs and the Plaintiffs’ agents would be soon carrying out an operation to clear up obstacles. 78.Given the much publicized event, the presence of strong contingent of police officers as well as local and international media and the announcements given by various parties at the time, it was highly unlikely that any citizen of Hong Kong would misapprehend the situation. In my view, those who had decided to remain and to stand in the middle of Nathan Road within the Area knew precisely what they were doing. 79.Given the length of time that Ms Chu chose to remain at the Area, the acts and movements she performed and her knowledge of the clearance operation by the Bailiffs and police officers in the Area, I am satisfied that Ms Chu had no desire to leave the Area. The presence of individual protestors like Ms Chu also lent support to other fellow protestors too. As is common in mass protests, fellow protesters banded together to fight for their beliefs. Video footage clearly indicated that there was no way the Bailiffs and the Plaintiffs’ agents were able to carry out the clearance operation by themselves given the presence of the large crowd. Their presence made the job of clearing and removing obstacles along Nathan Road substantially more difficult. Police assistance was eventually sought by the Bailiffs. Their presence and conducts were, not only inherently likely, but factually calculated, to delay if not to frustrate the Bailiffs and the Plaintiffs agents’ efforts. I have no doubt that Ms Chu’s conducts on that day amounted to a serious interference with the administration of justice. 80.Submissions were made that by the time the police took arrest action, Ms Chu was no longer able to leave the Area. To a certain extent, that is the case. But that is her own choosing. I have no doubt Ms Chu wanted to do her part till the last minute in support of what she believed to be the correct course, true to the words shown on her T‑shirt. As explained earlier, the arrest action bore little relevance to the commission of the offence. Having considered all the evidence, I am satisfied that Ms Chu is guilty of criminal contempt. HCMP 780/2015 Kwok Yeung Yuk 81.Mr Kwok was first seen at about 9:11 am standing outside the barricades. He was carrying with him a yellow/orange umbrella. I do not think anyone would dispute that the “Occupy Movement” was also known as the “Umbrella Movement”. At about 9:43 am he was captured on video again. Between 9:43 am and 10:15 am, he remained in the Area and moved around until his arrest. During his stay, Mr Kwok was seen most of the time staying close to the barricades in the middle of Nathan Road. 82.When the Bailiffs and the Plaintiff’s solicitors were making the fifth announcement at about 9:49 am, Mr Kwok was present behind the barricades, within the earshot of the announcement. I have no doubt that he was aware of the Bailiff’s warning. When the Plaintiffs’ agents started to remove the barricades, Mr Kwok was not far away and could have witnessed that. Even as late as this juncture in time, Mr Kwok still had ample opportunity to leave. Yet he remained. 83.When PW7 made the first police warning, Mr Kwok was standing immediately behind the barricades. Again I am sure he was fully aware of the warning. He chose to remain at the Area. The matters and observations mentioned from paragraphs 77 to 79 above are also applicable in Mr Kwok’s case. I have no doubt that Mr Kwok had made a deliberate decision to remain in the Area in support of the “Umbrella Movement”. His presence clearly flouted the Amended Injunction Order. Not only that, because of his presence and the presence of other protestors, their acts of defiance inevitably made the clearance much more difficult and were conducts not only inherently likely to but did factually cause prejudice to and interference with the due administration of justice. 84.Submissions were made that by 10:13 am, despite the fact that Mr Kwok wanted to leave the Area, he was not allowed to because he was by then surrounded by police officers and that all the pockets within the crowd practically had been blocked off and that he remained peaceful throughout and did not put up any resistance. Mr Kwok was then ordered to squat on the ground together with other protestors before his formal arrest. I accept that to be the case but again the circumstances of his arrest bore little relevance to the commission of the offence. Having considered all the evidence, I am satisfied that Mr Kwok is guilty of criminal contempt. HCMP 789/2015 Hung Cheuk Lun 85.Mr Hung was first seen at about 9:39 am. Video footage captured him carrying a backpack with a white helmet attached to it. Mr Hung was standing right behind the barricades, within earshot of the announcement when the Bailiffs and the Plaintiffs’ solicitors began to make the fifth announcement. 86.When the Plaintiffs’ agents began to dismantle the barricades, Mr Hung was in a position to witness all that. He did not leave the Area. At about 10:03 am, when PW7 made the first police warning, Mr Hung stood behind the barricades. Similarly, there could not be any question that he had not been made aware of the police warning. Although Mr Hung was never seen putting on the helmet, his intention was clear. He was ready to face the police. 87.Not only did he choose to remain behind, he was seen jeering and booing by one police officer (“PW41”). There was practically little cross examination of this issue. I am satisfied that PW41 was telling the truth despite the fact that it was not captured on any video footage. In fact, I would reach the same conclusion even without the evidence of PW41. The matters and observations mentioned from paragraphs 77 to 79 above are also applicable in Mr Hung’s case. His presence together with other protesters in the crowd not only constituted a flagrant breach of the Amended Injunction Order, but also created enormous burden for those responsible for clearing the obstacles. His conducts were conducts not only inherently likely to but factually did cause prejudice to or interference with the due administration of justice. 88.Similar submissions had been made that Mr Hung was not able to leave the Area by the time the police took action. For reasons stated earlier, I do not believe it bore any relevance to the commission of the offence. Had Mr Hung wanted to leave, he had ample opportunity to do so. In fact Mr Hung stayed almost all the time close to the barricades. Having considered all the evidence, I am satisfied that Mr Hung is guilty of criminal contempt. 89.I now proceed to deal with Mr Pun’s six clients. HCMP 788/2015 Kwan Siu Wang 90.Mr Kwan was first seen at around 9:43 am when he moved towards the barricades at Nathan Road / Argyle Street and joined up Mr Wong Ho Ming, Mr Lester Shum and Mr Wong Chi Fung (“the Group”). 91.Mr Kwan was seen staying in the Area close to the barricades for a significant period of time before his arrest by police officers. At about 10:12 am, he was seen having conversations with various members of the Group. 92.When the Bailiffs and the Plaintiffs’ solicitors began to make the fifth announcement, Mr Kwan was present right behind the barricades, within earshot of the announcement. I am sure not only was Mr Kwan aware of the warning, the presence of the large number of Bailiffs as well as the solicitors’ agents and police officers also clearly indicated to him that they were going to clear up the barricades. Again the matters and observations mentioned from paragraphs 77 to 79 above are applicable in Mr Kwan’s case. 93.When PW7 made the first police warning, Mr Kwan was again standing behind the barricades. I am sure he was able to hear the warning. After the first police warning, had Mr Kwan decided to leave, he still had ample opportunity to do so. In fact, Mr Kwan continued to stay in the Area, showing no sign of any intention to leave. His determination to stay with other protestors in the front inevitably created extra burden for the Bailiffs and the Plaintiffs’ agents in removing the barricades. I have no doubt that his conducts on that day not only were conducts inherently likely to prejudice or interfere with the administration of justice, but did actually produce that effect. Having considered all the evidence, I am satisfied that Mr Kwan is guilty of criminal contempt. HCMP 791/2015 Fung Kai Hei 94.Mr Fung was first seen at about 9:54 am. He emerged from a tent behind the barricades after the fifth announcement made by the Bailiffs. Mr Fung remained close to the barricades. Shortly afterwards, the Bailiffs and the Plaintiffs’ agents started to clear the barricades. 95.The emotions on both sides, the protestors and the Plaintiffs’ agents, were high. Both sides not only pointed at each other, but also exchanged unacceptable language. In fact, one person stood out on that day among the protestors, a male wearing only a shield without any upper garment on his upper body (referred to as the fake Captain America by the applicant). This male was seen carrying with him a small loudhailer and shouting across the barricades with rather unpleasant language. 96.At about 10:12 am, video footage depicted Mr Fung sending signals to the crowd further down Nathan Road regarding the police’s movement. Mr Fung was also clearly seen having a brief conversation with this fake Captain America. 97.When PW7 made the first police warning, Mr Fung was standing on Nathan Road (near Citibank) within earshot of the announcement. Mr Fung could have left the Area but decided not to do so. The matters and observations mentioned from paragraphs 77 to 79 above are applicable in Mr Fung’s case. His presence together with the presence of other protestors indicated to me that Mr Fung had no desire to leave the Area. No doubt their presence had made the Bailiffs and the Plaintiffs’ agents’ job in removing the barricades substantially more difficult. His conducts were not only conducts inherently likely to but did factually cause prejudice to or interference with the due administration of justice. Having considered all evidence, I am satisfied that he is guilty of criminal contempt. HCMP 783/2015 Chiu Chi Sum HCMP 784/2015 Chan Po Ying 98.Both Mr Chiu and Ms Chan can be dealt with together for the case against them overlapped considerably. Most of the time they were seen acting together. 99.Ms Chan was first seen at about 9:50 am standing outside HSBC. At about 9:53 am she walked towards the direction of Tsim Sha Tsui, away from the barricades. Had she wanted to leave the Area, she would have ample opportunity to do so. Instead she returned to the Area. She was seen again at about 11:07 am walking in the direction of Argyle Street. 100.PW7 gave another warning at about 11:07 am. At about 11:11 am, Ms Chan was seen holding a loudhailer passed to her by a male wearing a T‑shirt “公民抗命” while Mr Chiu was standing next to her. Thereafter, Ms Chan held the loudhailer whereas Mr Chiu acted as her guide, leading her in moving backwards against the advance of the police check line. Video footage showed that when Ms Chan was holding the loudhailer along Nathan Road, the male was making broadcast to the crowd. 101.Both Mr Chiu and Ms Chan were fully aware that they were required to leave the Area as the police check line advanced. They chose not to leave and had no desire to leave. The matters and observations mentioned from paragraphs 77 to 79 above are also applicable in their cases. They did their part in support of the movement. Their presence together with the presence of other protestors inevitably put extra burden on the people responsible for clearing the obstacles. Their conducts were conducts not only inherently likely to but factually caused prejudice to and interference with the due administration of justice. 102.Submissions were made that in fact they were not the targets of the police’s arrest and that they were retreating towards the direction of Tsim Sha Tsui. Whether or not they were the targets of the police was irrelevant to the case. They were walking backwards towards the direction of Tsim Sha Tsui, but no doubt with the intention of assisting others to slow down the advance of the police check line. 103.Having heard all the evidence, I am satisfied that they are guilty of criminal contempt. HCMP 796/2015 Mak Ying Sheung 104.Ms Mak was the only respondent who chose to testify in these proceedings. In so far as other respondents who decided to exercise their right of silence are concerned, no adverse inference had been drawn against them. In considering Ms Mak’s evidence, I also bear in mind that she enjoys a clear record in Hong Kong. That actually applies to all respondents in this case. 105.According to Ms Mak, she joined the Independent Media Hong Kong as an intern journalist at the beginning of November 2014. She was present on the 25 November 2014 during the execution of Amended Injunction Order at Argyle Street. Her task on the 25th was to interview protestors after the clearance. 106.Ms Mak was also aware that there would be another operation on the 26th and that the Bailiffs would be present to assist. She arrived at Mong Kok MTR station at 9:48 am. Her intention was again to interview the protestors. 107.Shortly after her arrival in the Area, Ms Mak overheard the police warning but was unable to hear the content in its entirety due to the noisy surroundings at the time. However, she could hear the warning requesting the crowd not to obstruct the Bailiffs in removing obstacles. Soon, blue team police officers moved in and she wanted to leave. However, as she had not been issued with a journalist identity card, she was stopped by police officers from leaving. 108.As such, Ms Mak returned to the front of the barricades and stood next to both Mr Wong Chi Fung and Mr Lester Shum. According to Ms Mak, she did not know Mr Wong Ho Ming, Mr Wong Chi Fung and Mr Lester Shum. Soon she was surrounded by police officers. All of a sudden, sensing that Mr Wong Chi Fung was about to lose his balance, she reached out her hands to help. According to Ms Mak, she had no idea that the police were in fact making arrest at the time. Soon she too was arrested. When being interviewed by the police under caution, she told the police her journalistic activity that day. 109.Ms Mak also called two witnesses, Mr Macro Mak, editor of the Independent Media Hong Kong, and Mr Lam Kin Hang, a freelance photographer, to testify. Similar to other witnesses, there was little challenge to their evidence. 110.The real issue in Ms Mak’s case is if she was wrongly arrested by the police at the time when she was doing no more than journalistic work. Having heard her evidence and viewed all relevant video footage, particularly, video footage that captured her conducts in support of the crowd, I do not think she was a credible witness. 111.I accept that Ms Mak had joined the Independent Media Hong Kong as an intern journalist in early November and that based on the Whatsapp messages appearing on her mobile phone, she had been asked by Mr Marco Mak to interview protestors on the 25th. 112.However, there was an absence of Whatsapp messages between Mr Marco Mak and Ms Mak regarding her works / tasks on the 26th, given Ms Mak was new to the journalistic field. There was no written instruction from Mr Marco Mak telling Ms Mak to return to the Area on the next day. On the contrary, the parties agreed to meet on Tuesday in the following week. On this point, I do not accept Mr Marco Mak’s evidence regarding the continuation of Ms Mak’s work on the 26th. Further we have not been presented with any photographs taken or indeed any journalistic works performed on the 26th. Ms Mak was seen most of the time looking at her mobile phone, instead of interviewing protestors. Before her arrest, she was seen standing next to the Group, yet no attempt had been made to interview any of them. 113.On the contrary, we have seen photographs depicting Ms Mak shouting and raising her arms along with other protestors. When she was cross‑examined on these photographs, her answers were unconvincing and evasive. When the police advised the media to leave the “operation area”, Ms Mak also told us that she did not know the extent of the “operation area”. I find that unconvincing too. At the time in front of Ms Mak was the large police presence, surely she should have no difficulty in realising that she was in the eye of a storm. I do not believe she was telling the truth. 114.I, of course, understand that Ms Mak was under no obligation to adduce any evidence. However, the absence of messages, photographs and journalistic work pointed to the inherent unlikelihood of her evidence. Having considered all the evidence, I come to the conclusion that whatever she did on 25th for the Independent Media Hong Kong, she was not doing that on the 26th. Ms Mak joined in the protest on the 26th. She took part in the protest with other protesters, despite the existence of an injunction prohibiting their continued occupation. The matters and observations mentioned from paragraphs 77 to 79 above are also applicable in Ms Mak’s case. 115.During her presence in the Area, there were pockets of time when she could leave without any difficulty. But for obvious reasons, she chose to remain. Her presence and conducts together with the presence of other protestors created extra burden on the people who were responsible for the clearance of the obstacles. Her conducts were conducts not only inherently likely to but did in fact cause prejudice to or interference with the due administration of justice. Having considered all the evidence, I am satisfied that Ms Mak is guilty of criminal contempt. HCMP 798/2015 Wong Ho Ming 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 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 authorisation. 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 PW7 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 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. 121.In conclusion, I am satisfied beyond reasonable doubt that all the respondents are guilty of the offence of criminal contempt.
Mr Victor Dawes, SC leading Mr Jin Pao and Mr Derek Chan, instructed by Department of Justice, for the applicant in HCMP 778, 780, 783, 784, 788, 789, 791, 796 and 798/2015 Mr Lawrence Lok, SC leading Miss Yu Cheuk Wing, Christine, instructed by M/s Ho, Tse, Wai & Partners assigned by DLA, for respondents in HCMP 778, 780 and 789/2015 Mr Hectar Pun, SC leading Mr Deng, Jundi Earl, instructed by M/s JCC Cheung & Co assigned by DLA, for respondents in HCMP 783, 784, 788, 791, 796 and 798/2015 | ||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
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Further hearings and rulings under HCMP 778/2015