Secretary for Justice v. Wong Ho Ming

FAMV No. 55 of 2018

[2018] HKCFA 62

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 55 OF 2018 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO. 259 OF 2017)

_____________________

BETWEEN

_____________________

_______________________________

REASONS FOR DETERMINATION

_______________________________

Chief Justice Ma (giving the judgment of the Appeal Committee) :

1.By a judgment dated 13 October 2017 (the CFI Judgment), after a 19‑day trial, Andrew Chan J found a number of respondents including the present applicant for leave to appeal, Mr Wong Ho Ming (Mr Wong)[1] guilty of the offence of criminal contempt, for which Mr Wong was sentenced to a term of imprisonment of 4 months and 15 days.  His appeal to the Court of Appeal was dismissed,[2] as was his application to that court for leave to appeal to the Court of Final Appeal.[3]  Mr Wong renewed his application by an Application for Leave to Appeal dated 13 September 2018.  After hearing submissions from leading counsel for Mr Wong,[4] we dismissed the application with costs, such costs to be taxed if not agreed.  These are the reasons for our Determination.

2.The application for committal for contempt arose from an injunction that had been granted in an action commenced by taxi operators against persons who had occupied portions of Nathan Road between Argyle Street and Dundas Street.[5] The injunction granted by Au J on 10 November 2014 as subsequently amended (the Injunction) contained in part the following terms :-

“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;

(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.

2. The bailiff do 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.

3.  The bailiff be authorized and directed to request the assistance of the Police where necessary.

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.

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.”

3.    It is common ground that the defendants who were subject to the Injunction (which was duly served together with a Penal Notice) included Mr Wong.[6] On 26 November 2014, court bailiffs, with the assistance of the police, executed the Injunction at the relevant location to effect the clearance of the streets.  A number of warnings, altogether eight, were given to the crowd at the location by both the bailiffs and the police.  The charge of criminal contempt made against Mr Wong was essentially on the basis that his actions, notwithstanding the warnings that were given, amounted to a breach of the Injunction, and constituted an interference or impediment to the due administration of justice by his obstructing the bailiffs and the police.  In this respect, the following findings of Andrew Chan J are relevant :-

(1)     Mr Wong’s actions “were, on any objective viewing, [designed] to a certain extent, [to] ridicule the Plaintiffs’ solicitors as well as to incite the crowd to continue their defiance”.[7]

(2)     Mr Wong’s “presence and challenges undoubtedly created enormous burden on the Bailiffs and Plaintiffs’ agents”.[8]

(3)     Mr Wong’s “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”.[9]

(4)     Reference was also made to earlier passages in the Judgment which were said to be likewise applicable to Mr Wong.  It was said that the presence and conduct of the crowd, of which Mr Wong was a part, was “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 [Mr Wong’s] conducts on that day amounted to a serious interference with the administration of justice.”[10]

4.    The Court of Appeal said the following[11] :-

“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.”

5.In seeking leave to appeal to the Court of Final Appeal, Mr Wong sought to raise one question of great general or public importance and four points based on the “or otherwise” ground.[12]

6.The question said to be of great general or public importance was framed in the following way :-

“What is the requisite mens rea for criminal contempt in the form of interference with the due administration of justice by obstructing or impeding a bailiff in the due execution of his duties?”

7.This question focuses on the mens rea required for a charge of criminal contempt when there has been an interference with the administration of justice in the form of a breach of an injunction granted by the court.  In the present case, the interference consisted of the obstruction of or interference with the bailiffs and police in the discharge of their duties.  It was contended on behalf of Mr Wong that a specific intent to interfere with the administration of justice had to be proved, as opposed to merely a basic intent to do the act in question.  We were in this context referred to seemingly divergent approaches adopted by the courts in Hong Kong, the United Kingdom, Australia and New Zealand.

8.As I mentioned to Mr Lee SC during his submissions, I accept that the question of mens rea for criminal contempt is an important one, with reasonable arguments going to whether specific or only basic intent is required.  However, the answer to this important question makes no difference in the present case. Even if a specific intent to interfere with the administration of justice is required to be shown, this is clearly established on the facts.  Mr Wong was a party to the proceedings in which the Injunction was granted, he was fully aware of its effect, he heard the many warnings that were given on the day in question and yet chose to do what he did.  As Andrew Chan J held, the acts of persons like Mr Wong were “calculated” to frustrate the bailiffs.[13] Further, as the Court of Appeal also observed, Mr Wong “knew by committing the breach [of the Injunction], he had interfered with the due administration of justice.  In such circumstances, the questions whether his breach of the [Injunction] was knowing and deliberate and whether it was intended to interfere with the course of justice really amount to the same question”.[14]

9.At one stage, the Appeal Committee was tempted to grant leave on this question on the basis that although it was not relevant as far as Mr Wong was concerned, nevertheless it had been said in the Application for Leave to Appeal[15] that there were a number of pending appeals in which this question was raised.  This assertion of fact, however, remained uncorrected until we were informed during the hearing by leading counsel for the Secretary for Justice[16] that there were in fact no pending appeals save for one and that appeal concerned only sentence, not conviction.  We would perhaps take this opportunity to remind counsel that it is incumbent on them to correct any factual inaccuracies before the court, whether this is in their favour or not.

10.In refusing leave under the great general or public importance ground in the present case, we should not be understood as accepting that the legal analysis carried out by the lower courts is necessarily correct or that the question of mens rea in criminal contempt has been finally determined.  This question is not without its complications and may have to be revisited at some stage.

11.The “or otherwise” grounds can be dealt with shortly; they are without merit and are not reasonably arguable :-

(1)     Submissions were made seeking to challenge the factual findings made by the Court of First Instance as upheld by the Court of Appeal.  Although Mr Lee SC accepted that the Court of Final Appeal could not be asked to re‑try the case, his complaint was that the lower courts appeared not to have taken into account parts of the evidence favourable to his client.  There was simply no merit to these submissions.  Both lower courts carefully evaluated the evidence before them, including what was submitted to them on behalf of Mr Wong.  As the Court of Appeal stated, it had “carefully considered all the evidence”.[17]

(2)     In his judgment when discussing that part of the Injunction dealing with the role of the police and in particular their power to arrest, Au J stated that “An intention and act to interfere with or impede the due administration of justice is a criminal contempt.”[18] This extremely brief (and indeed obiter) statement of the law, made without any detailed argument or consideration of the applicable law,[19] was then elevated into some sort of declaration by the judge as to what would be treated to be the applicable law in relation to the mens rea element in any charge of criminal contempt.  It was submitted, accordingly, that the consequence of this was that it was impermissible to change the mens rea element from what Au J had apparently held to require, namely, a specific intent into what the lower courts eventually held to be the applicable mens rea, being basic intent.  This argument is wholly misconceived.  Au J was merely referring to criminal contempt in the context of that part of the Injunction dealing with the police’s power to arrest.

(3)     Next, it was argued that since a number of warnings were given by the bailiffs and the police on the relevant day, the proper analysis was that each warning superseded the previous one so that the only warning that could be considered (based on which a charge of criminal contempt could be made) was the final one.  It was then said on the facts that after the last of the eight warnings was given that day, Mr Wong was allegedly leaving the scene when he was arrested; therefore he had committed no contempt, notwithstanding that before the final warning he may have interfered with the clearance operations.  This argument was hopeless and properly described by the court as “desperate”.  A court must be entitled to look at Mr Wong’s conduct as a whole.

(4)     Lastly, it was said that Mr Wong impeded the police rather than the bailiffs.  It is difficult to understand this point and Mr Lee SC did not develop it in his submissions.  Both the bailiffs and the police were mentioned in the Injunction.  The police were only present at the said location on the relevant day because they were asked to assist the bailiffs.

12.For the above reasons, the application was dismissed.

Mr Martin Lee SC and Mr Hectar Pun SC, instructed by JCC Cheung & Co, assigned by the Director of Legal Aid, and Mr Earl Deng and Mr Anson Wong Yu Yat on a pro bono basis, for the Applicant

Mr Jin Pao SC, instructed by the Department of Justice, for the Respondent