Secretary for Justice v. Persons Unlawfully and Wilfully Conducting Themselves in Any of the Acts Prohibited Under Paragraph 1(A), (B) or (C) of the Indorsement of Claim
Read the full judgment text of HCA 1847/2020 on BabelCite. This High Court CFI judgment was delivered on 13 November 2020.
1. Few decisions taken by Judges and Judicial Officers in a contested case are simply a choice between black and white. But, no decision is ever made by a Judge or Judicial Officer making a choice between ‘blue’ and ‘yellow’.
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HCA 1847/2020 [2020] HKCFI 2785 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 1847 OF 2020 ________________________
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______________ D E C I S I O N ______________ A. Introduction 1.Few decisions taken by Judges and Judicial Officers in a contested case are simply a choice between black and white. But, no decision is ever made by a Judge or Judicial Officer making a choice between ‘blue’ and ‘yellow’. 2.Frequently, analysis and weighing and balancing are required of the middle ground or ‘grey area’ between black and white. But decisions are required to be reasoned, and most reasons for decisions are given in public and/or published. There is no need to make assumptions or imputations as to why any particular decision has been made. The reasoning is there to be heard or read, and to inform. 3.Of course, that many judicial decisions arise out of analysis of that ‘grey area’ means that there can sometimes be a range of legitimately differing views even between Judges and Judicial Officers. The Court system also has built into it specific procedures where litigants can seek review of or appeal from judicial decisions. Such reviews and appeals assess the decision and its reasoning, and where appropriate can lead to a different decision from the one originally given. 4.Plainly, members of the public might sometimes also disagree with judicial decisions. Therefore, Judges and Judicial Officers must be prepared to face comment on or criticism of certain decisions reached. That is part and parcel of the exercise of the powers and obligations which arise from holding judicial office. 5.However, as has been previously remarked on numerous occasions, including recently by the Chief Justice in his powerful Statement on 23 September 2020, public comment on or criticism of judicial decisions ought to be made from a proper understanding of the judicial process. Courts and judges are not above criticism, but such criticism must be informed, solidly based and properly made. Otherwise it would be detrimental to public confidence in the administration of justice and ultimately to the rule of law in Hong Kong. There must not be a politicisation of the Judiciary and its functions. 6.In any event, what is impermissible is for the public commentary or criticism to descend into personal attacks, or worse still to the public encouragement of the invasion of privacy of, or harassment of, or threats to, or attempted intimidation of Judges or Judicial Officers or their families. 7.It is that kind of deeply unattractive activity which gives rise to these proceedings. 8.The Secretary for Justice (“SJ”) brings these proceedings to seek an injunction order to restrain persons from engaging in activity, commonly called ‘doxxing’, a form of cyber-bullying, against Judges and Judicial Officers. She does so as the guardian of the public interest, and to seek to maintain and to protect the rule of law and independence of the Judiciary in Hong Kong. The application has not been initiated by, or at the instigation of, the Judiciary or any individual members of it. 9.On 30 October 2020, I granted the ex parte application by making an Order in the following terms:
10.I also granted leave to the SJ to serve the Writ of Summons, the ex parte Order and the inter partes Summons on the Defendants by way of substituted service, by publishing a copy of them on the webpages of the Hong Kong Police Force, the Department of Justice and the Government of the Hong Kong Special Administrative Region. 11.The ex parte Order was to remain in force up to and including today, Friday 13 November 2020, when the matter was to return for the Court’s consideration on the inter partes Summons. 12.I further granted orders: (a) giving anonymity throughout these proceedings for the deponent of the affidavit leading the application to be referred to as “PW1” at any hearing or in any document to be filed in the Registry in these proceedings; (b) that no report by any member of the public (including the media) of these proceedings shall directly or indirectly identify PW1 or his/her spouse or his/her family member(s); (c) that the plaintiff has leave to redact any part of the materials filed in the Registry which reveals (i) the name of PW1 and (ii) the personal particulars of any Judicial Officer(s) and/or their spouse(s) and/or their family member(s); and (d) that no person may, without leave of the Court, search for, inspect or copy the un-redacted documents filed in the Registry in this action. For the avoidance of doubt, those orders will continue until further order of the Court. 13.This is the inter partes hearing of the application. Despite the service as ordered and the widespread publication of the ex parte Order, no person falling into the category of persons described as Defendants to these proceedings has appeared or been represented at this hearing. No other person has sought to intervene. 14.Having considered the evidence filed, and the written and oral submissions of Mr Jonathan Chang SC, leading Mr Martin Ho of Counsel, on behalf of the SJ, this is my Decision. B. Background Facts 15.Doxxing is one of the many unattractive activities that have grown out of recent social unrest in Hong Kong. I have previously dealt with the need to grant injunctive relief seeking to prevent the doxxing of police officers and their family members: see, for example, Secretary for Justice v Persons Unlawfully and Wilfully Conducting Etcetera [2019] 5 HKLRD 500 (“Police Doxxing case”). 16.Unfortunately, doxxing activities have also been directed at Judges and Judicial officers and their family members. Such activities have increased in recent months. The increase appears directly related to the recent results, in verdicts and (upon convictions) sentences, in cases where the accused person or persons was or were charged with offences relating to recent protests or other related public order events. The activities target the Judges and Judicial Officers concerned, precisely because of their role in the administration of justice in those cases, be they criminal cases or public law cases. 17.The evidence filed in this case identifies that various Judicial Officers were doxxed in the month or months following the handing down of judgments or verdicts, or passing sentences, in specific cases which many would see as arising in a political context. The doxxing posts typically make reference to the facts of the particular case, sometimes with direct quotes from the Judicial Officer’s decision. Often, a headshot is included, showing the Judicial Officer in judicial gown. Sometimes there are links to related news articles. 18.The doxxing posts often have a kind of pro forma layout, with various fields where those engaging in doxxing activities can fill in, or add to, the information being published. Fields of information tend to include (but are not always limited to) name, identity card number, occupation/status, phone number, address, email address, age/date of birth, companion, companion’s mobile, companion’s identity card, companion’s date of birth, children, parents, other relatives, school, Facebook, Instagram, and a section on Behaviour. 19.In that section on Behaviour, typical posts include “Pro-China Pro-Communist”, or “Support Hong Kong Police”. Some of the posts suggest that the Judge or Judicial Officer should “die of bad fortune”, that the doxxing comments should be continued until he or she is “sanctioned” or “someone hits”. One post suggested that the “whole family of the Judge … should die”. Another proposed the use of a firearm. 20.One Judicial Officer, doxxed on a number of occasions on Telegram and LIHKG during the past year for his handling of politically sensitive cases, has identified the (typical) consequences of the doxxing activity. His full name, residential address, HKID card number, date of birth, mobile and residential telephone numbers, and the personal particulars of his wife, including her name, date of birth and HKID card number, and the name of their child, were disclosed. As a result, he received nuisance calls, many involving vulgar language expressed at him, made late at night and in the early hours of the morning. His phone number was used to register for services for which he did not apply. A purported registration for organ donation was made. 21.Other Judicial Officers, doxxed on multiple occasions, have had similar private information published resulting in nuisance calls. The wife of one Judicial Officer has received so many persistent and frequent nuisance calls, that she has been unable to use her personal mobile phone. It is readily understandable that such constant harassment, and the psychological impact of doxxing affecting her child, is a matter of grave concern. 22.Even after the grant of the ex parte Order on 30 October 2020, doxxing and harassment activities have continued against Judicial Officers and their family members. One doxxing post on the website of Hong Kong Chronicles posted numerous personal particulars of a Judicial Officer and his wife and child, and specifically referenced alleged involvement in cases concerning National Security Law or other politically-sensitive cases. There is also some evidence from social media posts that some people regard there to have been only a temporary suspension of doxxing activities against Judicial Officers until the ex parte Order expires. 23.As more cases arising from, or related to, the public order events come before the Courts in the near future, it is anticipated that the upsurge in doxxing would only continue, unless otherwise inhibited. There will also likely be public law cases, which might excite public interest and lead to doxxing activities, unless they are inhibited. C. Applicable Legal Principles 24.It is settled law that on an application for injunctive relief, the Court has to identify whether there is a serious issue to be tried, whether damages would be an adequate remedy for either side, and to consider where the balance of convenience lies. 25.The principles for the grant of a quia timet injunction against wrongful acts which are threatened or imminent are also well-established. Such injunctions can be granted where it is reasonably certain that what the defendant is threatening and intending to do will cause imminent and substantial harm. The required degree of probability of future injury or harm depends on all the relevant circumstances. The greater the prejudice caused by the apprehended injury, the more readily the Court will intervene. Even absent an express threat, a defendant’s actions may indicate that he intends to act unlawfully particularly if he has stated that it is within his rights to do the particular acts against which complaint is made. 26.As to the cause of action, it is in public nuisance. The SJ can take action to restrain public nuisance on behalf of the public: see Leung Tsang Hung v IO of Kwok Wing House (2007) 10 HKCFAR 480, at §§12-15 and 17. The burden is on the SJ to establish: (1) a state of affairs which endangers the lives, safety, health, property or comfort of the public, or obstructs the public in the exercise or enjoyment of any right that is common to members of the public; (2) an act or omission committed by the defendants that is causative of particular injury which is of a foreseeable type; and (3) that the defendants knew or ought reasonably to have known that the act or omission would result in the likely consequence of a nuisance hazard presenting a real risk of harm to the public. It is settled that an interest in land is not an essential element of the tort. 27.I have also previously accepted that there is at least a serious issue to be tried that the widespread doxxing activities have created a state of affairs in society which endangers the lives, safety, health, property or comfort of the public as a whole, justifying the SJ’s intervention on behalf of the public: see the Police Doxxing case at §39. 28.In the same case at§§41-42, I held that the damage caused by unlawful public nuisance arising from doxxing activities is not quantifiable, and could not be adequately remedied by an award of damages. D. The Role of Judges and Judicial Officers 29.Before turning to consideration of other matters, it is useful to identify the role of Judges and Judicial Officers in the administration of justice in Hong Kong, and to see the basis upon which they assume and undertake that role. 30.It needs to be understood that, in Hong Kong, Judges and Judicial Officers are not political appointees. No Judge or Judicial Officer is appointed because of his or her actual or perceived political point of view or sympathies. Judges and Judicial Officers are not engaged in the political process, and they do not decide political issues. 31.Because it may not be familiar to people outside of legal circles, it may be instructive to set out the full terms of the Judicial Oath which is sworn or affirmed by a Judge or Judicial Officer upon his or her appointment. It reads as follows:
32.Therefore, Judges and Judicial Officers are required to, and promise that they will, decide each case not only on the evidence in that case but also in accordance with the applicable principles of law. There is no other consideration that comes into play. Judges and Judicial Officers are required to, and promise that they will, conscientiously and dutifully serve the Hong Kong SAR and uphold the Basic Law. They are required to, and they promise that they will, act honestly and with integrity, and without fear or favour. That last phrase, perhaps now rather quaint, has real meaning; it means that Judges and Judicial Officers will not decide cases as a result of any threat or inducement or to favour one side over the other, but will instead decide cases in a fair, just and impartial manner and by treating parties equally. 33.However, just as important as it is for Judges and Judicial Officers to honour their oath, so it is important that the perception and reality are in alignment. Should it become apparent that there is any attempt to cause fear or to seek favour from or otherwise inappropriately influence a Judge or Judicial Officer, it must be prevented, and it must be met with a prompt and firm response. That is not because any Judge or Judicial Officer is likely to act with fear or favour, but because there must be no perception that he or she might so act. E. The Public Interest 34.It is in that context that the SJ brings this application. 35.In so doing, the SJ represents the public at large, and in her capacity as guardian of the public interest. The SJ is not seeking to protect the interests of the Government, nor is she properly to be regarded as advancing any private interests of those persons doxxed. Rather, the SJ is seeking to uphold the rule of law and to safeguard the administration of justice. 36.On behalf of the SJ, Mr Chang emphasises that, not only have the victims of the doxxing so far indicated they do not feel intimidated by the harassing acts and that they would continue honourably to discharge their public duties, the SJ strongly believes that no Judge or Judicial Officer would succumb to the unlawful acts of doxxing in altering the way in which he or she conducts official business, or decides cases or passes sentences (including in cases thought to be of political sensitivity). Nevertheless, there remains a strong public interest in ensuring that doxxing activities against Judges or Judicial Officers be inhibited sooner rather than later. It would be detrimental to the rule of law were the public to perceive that doxxing activities might have that effect. 37.This is because, as has been recognised in previous cases, doxxing can create a ‘chilling’ effect on society. The problem may be exacerbated in the case of Judges and Judicial Officers, who are the persons directly involved in the administration of justice in Hong Kong. It remains fundamental to the rule of law that litigants and the general public are able to place reliance on and have confidence in a Court system that is free from bias, and that the Judge or Judicial Officer in any case is the person who decides that case according to its evidence and the applicable law. 38.It has previously been noted that is also relevant that the Hong Kong legal system is of a relatively small size: see Wong Yeung Ng v Secretary for Justice [1999] 2 HKLRD 293 at 313. As Mortimer VP noted – even before the enormous increase in internet and social media activity since 1999 – in Hong Kong, communication with a very substantial proportion of the population is easily achieved. Proceedings in Court are widely publicised, and many judges are known by name because of that reporting. 39.The point was also made that confidence in our legal system, the maintenance of the rule of law, and the authority of the Court are matters of special importance in Hong Kong society. I agree. Indeed, there are many – perhaps the significant majority of people in Hong Kong, and elsewhere – who see the maintenance and protection of the rule of law, and the strong legal system with an independent judiciary, as essential parts of the success story that is Hong Kong. 40.This is not the occasion on which to engage in any deep discussion about whether or not Hong Kong enjoys the ‘separation of powers’ as understood in some other countries. But whilst it can be noted that the phrase ‘separation of powers’ does not appear in the Basic Law text, neither does the phrase ‘Executive-led’. I wonder whether there is a somewhat sterile debate about labels, when it is the substance that matters. In any event, the crucial point is that in addition to references to “independent judicial power” in Articles 2 and 19 of the Basic Law, Article 85 emphasises that the Courts in Hong Kong “shall exercise judicial power independently, free from any interference”. 41.Therefore, whatever label is used to describe the Hong Kong system, no Judge or Judicial Officer is ‘led’ by any member of the Executive. 42.I also agree with the point made in the Wong Yeung Ng case that the concerns which arise are not as regards the dignity of individuals taking part in the judicial process, or even with upholding respect for the law in any purely deferential sense. Rather, the point is that the administration of justice needs to proceed in circumstances of calm and dignity in order to be effective. 43.A connected point was made very recently by the Chief Justice in a speech on 2 November 2020, at the ‘Opening of Hong Kong Legal Week 2020 / Opening of Hong Kong Legal Hub / Launch of Vision 2030 for Rule of Law’ when he said that essential to the concept of the rule of law is the need to have confidence in it. I agree. 44.Mr Chang has referred me to the case of Attorney General v Times Newspapers Ltd [1974] AC 273 at 309, where Lord Diplock set out what he considered to be the elementary requirements for the due administration of justice:
45.I would respectfully echo those requirements. Slightly recast by me, they are that there should be:
46.It is perhaps worth emphasising that Judges or Judicial Officers should make their decisions without the interference or influence of any other person or body, and without any other person or body assuming or encroaching on the function of the Court. F. Analysis 47.As I have already indicated, I accept that there is at least a serious issue to be tried that widespread doxxing activities – including those directed at Judges and Judicial Officers – have created a state of affairs in society endangering the public as a whole, and justifying the SJ’s intervention on behalf of the public. The serious issue to be tried include that, if left unchecked, doxxing might seriously erode public confidence in law and order, and the administration of justice in Hong Kong. 48.I have also accepted that damage caused by unlawful public nuisance arising from doxxing activities is not quantifiable, and could not be adequately remedied by an award of damages. 49.I also agree with Mr Chang’s submission that there is unlikely to be any prejudice suffered by the Defendants, in that the restrained acts constitute wrongful behaviour, and it is difficult to envisage any scenario where the Defendants are legally entitled to conduct doxxing activities. 50.I accept that the injunction sought may have the effect of restricting certain fundamental rights, including the right to freedom of speech or freedom of expression as guaranteed by Article 27 of the Basic Law. However, the Court has to perform a balancing and weighing of various relevant rights and freedoms, including the rights of doxxed persons and their family members to respect and privacy, as well as the need to maintain public order and confidence in the administration of justice. In any event, it is only unlawful doxxing activities – those which are intended or likely to intimidate, molest, harass, threaten or pester – which are sought to be restrained. 51.I also accept there is utility in the injunction sought, both to serve as a reminder to the public that doxxing activities are unlawful and should be met by sanctions of the Court, and to promote a meaningful drop in the number of doxxing posts (if not their complete eradication). There is utility in the intended deterrent effect against acts which risk harming the proper administration of justice and the rule of law in Hong Kong. 52.As pointed out above, these proceedings are not instigated by or at the request of the Judiciary or any individual Judges or Judicial Officers. Indeed, it is not realistic to expect individual Judges or Judicial Officers who are doxxed to seek recourse by taking legal action in their personal capacity. 53.In fact, it has been the traditional view that Judges and the Judiciary do not speak out in defence of their decisions or to defend themselves against unfair and inappropriate criticism. The Guide to Judicial Conduct expressly advises that Judges should speak only through their judgments in dealing with the case being decided, and that it is generally inappropriate for judges to defend their judgments publicly. On that basis, in common law jurisdictions like Hong Kong, it was the tradition that the minister responsible for the administration of justice has the duty of defending the Judiciary or individual Judges against wrong accusations. However, it seems that unfortunately that tradition is in decline and is not now always promptly honoured. 54.In any event, it seems to me that persons from all sectors, with differing political views or none, should place their confidence in the proper workings of the system for the administration of justice which has for so long been rightly prized and praised in Hong Kong. As already stated, that system permits reviews and appeals. A litigant who contends that a judicial decision has been reached in error can apply for an appeal. That is the proper avenue for challenge to court decisions. If there is merit in the contention, the error can be corrected on appeal. If there is a complaint about a Judge’s or Judge or Judicial Officer’s conduct, there is a proper complaint procedure. 55.If I might alter Hanlon’s Razor, never attribute to political viewpoints that which can be adequately explained by something else. As stated, Judges and Judicial Officers are not engaged in the political process, they do not express political views and they do not make political decisions. The explanation for the decisions – the ‘something else’ – is to be found in their reasoning, which is ordinarily publicly stated and/or publicly available. 56.As an aside, it might be noted that – for whatever reason – media reports of a judicial decision do not always fully or fairly reflect the decision and its reasoning in proper context. Those who prefer to be better informed about a decision, before reacting to it, would be well advised to obtain the actual decision. 57.That the Courts and Judges and Judicial Officers are closely watched is a good thing, if it shows that people are concerned about justice and the justice system. But if any criticism is to be “informed, solidly based and properly made”, that requires looking beyond the headlines or soundbites to the detail. Otherwise, unwarranted attacks on the motives and integrity of Judges and Judicial Officers risks the real mischief of undermining respect for the Judiciary and the judicial system, and undermining the foundations of the rule of law. 58.There is an irony in the fact that many of those who engage in doxxing Judges or Judicial Officers do so in purported furtherance of the rule of law and to counter perceived outside interference. Yet those acts are themselves acts which harm the rule of law, and do so by way of outside intended interference. 59.In an era of increasing polarisation of political and other personal points of view, it is salutary to remember and to be reminded that whilst some matters might be regarded as merely the expression of opinion, other matters require the identification and distinction between something which is right and lawful and something which is wrong and unlawful. The injunction sought properly seeks to identify what is wrong, to name it, and to restrain it. 60.In those circumstances, I am satisfied that the injunction order should be continued until trial or further order of the Court. I so order. 61.As with the ex parte Order granted, Mr Chang points out that the order sought incorporates the “news activity” exemption as granted by me in the Police Doxxing case, at §§69-70. I agree that exemption is applicable to this case, and should be incorporated in the Order. G. Service 62.I am satisfied that the circumstances of this case make it appropriate to provide for substituted service of the Order. 63.Substituted service of the ex parte Order was made by publishing a copy of it on the webpages of the Hong Kong Police Force, the Department of Justice and the Government of the Hong Kong Special Administrative Region. That has been demonstrated by an updating affirmation from PW1. For the purposes of serving the Order I am making today, the same should occur. H. Costs 64.I make no order as to costs.
Mr Jonathan Chang, SC and Mr Martin Ho, instructed by Secretary for Justice, for the plaintiff The defendants did not appear | |||||||||||||||||||||||||||||||||
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