Secretary for Justice v. Chin Po Fun

HCMP 231/2020

[2021] HKCFI 598

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 231 OF 2020

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BETWEEN

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Before:  Hon Alex Lee J in Court

Date of Hearing:  9 March 2021

Date of Judgment on Sentence:  16 March 2021

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JUDGMENT ON SENTENCE

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Introduction

1.This is the sentence of the Defendant for criminal contempt.  The present committal proceedings have been brought by the Secretary for Justice by way of originating summons dated 19 March 2020 with prior leave granted by Chow J on 11 March 2020.  The proceedings had been adjourned for the Defendant to obtain legal representation. Subsequently, by a joint letter to the Court dated 23 December 2020 and the Defendant’s Affirmation filed on 21 January 2021, she confirms that she does not intend to contest the proceedings.  Before me, she confirms her guilty plea and her agreement to the Admitted Facts prepared by the Plaintiff.

Brief Facts

2.Briefly stated, the matter arose from a violation of an injunction occurred on 7 September 2019 at the Hong Kong International Airport.  However, the history of the injunction goes back to about a month before on 12 August 2019 when there was an unlawful occupation of the whole of Terminal 1 of the Airport by large masses of protestors.  Those protestors blocked the access to the airport restricted area and the airside and thus obstructing the flow of people including travelers thereat.  As a result, an ex parte application was made by the Airport Authority for an injunction naming the protestors as defendants.  The order of injunction (“the Injunction Order”) was first granted by Chow J on 13 August 2019. Upon further application by the Airport Authority, on 23 August 2019 Wilson Chan J varied and extended the Injunction Order in the following terms:  

(1)  The Defendants and each of them whether acting on his/her own or together with other person(s) be restrained from doing any of the following acts: -

(a)  unlawfully and wilfully obstructing or interfering with the proper use of the Airport;

(b)  attending or participating in any demonstration or protest or public order event in the Airport (the boundary of which is delineated in green on Plan (I) annexed to the Injunction Order) (“Airport Area”) other than strictly within the area designated by the Airport Authority for the carrying out of such events which area is marked “A” and shaded in yellow on Plan (II) annexed to the Injunction Order (“Protest Area”) and only where the conduct of such demonstration or protest or public order event is lawful and peaceful provided that nothing in the Injunction Order shall be construed as authorizing any demonstration, protest or public order event in contravention of the Public Order Ordinance (Cap 245);

(c)  entering the area marked “B” and shaded in red on Plan (III) annexed to the Injunction Order (“Access Control Area”) unless he/she is a bona fide traveler or is granted permission by the staff of the Airport Authority or of the Aviation Security Company Limited (“AVSECO”) so to enter, for so long as the Airport Authority maintains and implements such Access Control Area;

(d)  loitering in any part of the Airport without reasonable cause in breach of section 20(1) of the Airport Authority Bylaw (Cap 483A);

(e)  wilfully obstructing any road, passageway, entry or exit point or access control point, whether the vehicular or pedestrian, and whether within or near the Airport Area;

(f)  obstructing or interfering with any staff of the Airport Authority and/or AVSECO in enforcing or attempting to enforce (a), (b), (c), (d) and/or (e) above;

(g)  inciting and/or aiding and/or abetting any person to do any of the acts identified in (a), (b), (c), (d), (e) and/or (f) above.

(2)  The bailiff do take all reasonable and necessary steps to assist the Airport Authority and its agents to effect the clearance and removal of any obstructions or interference provided for in paragraph 1 of 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 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 that his action is likely to constitute a breach of the Injunction 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 arrest or legal processes, as soon as practicable for further directions.

(6)  For the avoidance of doubt, nothing in the Injunction Order is intended to, and nothing in the Injunction Order shall be taken as intending to, affect or prejudice in any way the powers and functions of the Airport Authority in the management and operation of the Airport conferred on it by law.

(7)  Notwithstanding paragraph 1(b) and (c) above, in the event that the Airport Authority shall consider it necessary for the management or operation of the Airport, the Airport Authority shall be at liberty to cancel or reduce the size of the Protest Area or to relocate it and/or to extend the Access Control Area to any other part(s) of the Airport Area including but not limited to the Protest Area.

3.Pursuant to the order of Wilson Chan J, the Injunction Order, as varied and extended, was served in the following ways: -

(1)  by fixing a copy securely in conspicuous places at the Airport;

(2)  by posting a copy on the website www.hongkongairport.com; and

(3)  by publishing a copy in one English newspaper and one Chinese newspaper in Hong Kong for 1 day.

The Injunction Order, its subsequent variation and extension and the above modes of service had all been widely reported in local mass media. 

4.Despite the aforesaid, the Airport Authority became aware that there were calls on the internet to block the traffic to the Airport.  In response to such calls, the Airport Authority placed advertisements in various local newspapers on 6 September 2019 urging the protestors not to obstruct the proper use of the Airport.  This, again, was widely reported.

5.At around noon on 7 September 2019, the Airport Authority, together with the bailiffs, security staff of AVSECO and the police, arrived at the Airport Bus Terminal area to monitor the situation. A stage (“the Stage”) installed with loudhailers was set up for the purpose of making announcement.  At about 2 pm, around 40 to 50 protestors gathered at the Airport Bus Terminus in response to repeated calls on the internet to block traffic to the Airport.  At about 3:30 pm, PW1, a staff member of the Airport Authority, stood on the Stage and announced to the obstructing crowd in both Cantonese and English respectively through loudhailers the terms and contents of the Injunction Order as set out above. 

6.While PW1 was making the announcement, the Defendant (CHIN) sat on a bench on the Passageway, carrying a placard with political slogans marked on it and attached to her backpack.  She shouted loudly and expressed her views to the media.  She also questioned how the crowd in the vicinity would obstruct the use of the Airport.

7.After that, PW2, the legal representative of the Airport Authority made an announcement on the Stage warning the obstructing crowd that they must not:

(1)  unlawfully and wilfully obstruct or interfere with the proper use of the Airport;

(2)  attend or participate in any demonstration or protest or public order event in the Airport Area which includes most areas on Chek Lap Kok island, except in the area designated in the order;

(3)  loiter in any part of the Airport without reasonable cause;

(4)  wilfully obstruct any road, passageway, entry or exit point or access control point, within or near the Airport Area;

(5)  obstruct or interfere with any staff of the Airport Authority and/or AVSECO in enforcing the order;

(6)  incite, aid and/or abet any person to do any of the acts identified in the order.

The obstructing crowd were told that, “You are now in breach of the order.  Please gather your belongings and leave.  If you neglect to obey or comply with the order, you may be held in contempt of court and may be sent to prison or fined.”  However, CHIN remained seated on the bench on the Passageway, carrying the placard attached to her backpack.

8.Thereafter, at about 3:38 pm, bailiffs PW3 and PW4, who stood next to the Stage, also made public announcements in Cantonese and English respectively on the contents of the Injunction Order through loudhailers and requested the obstructing crowd to leave the scene immediately.  CHIN, however, remained seated on the bench on the Passageway.  There were similar announcements and warnings given by PW2, PW3 and PW4 at about 3:48 pm, 3:51 pm, 4:08 pm and 4:20 pm.  However, CHIN remained where she was, with the placard attached to her backpack.

9.Eventually, at about 4:34 pm PW5, a staff member of the Airport Authority, approached CHIN and informed her that the execution of the Injunction Order had already started and asked her what type of transport she was going to take.  CHIN did not answer.  PW5 requested her to leave.  Afterwards, CHIN walked towards the Airport Bus Terminus but soon stopped in front of a bus route information panel, accepting media interview there.

10.Between 4:36 pm and 4:38 pm, two staff members of AVSECO asked CHIN to leave the area in front of the bus route information panel repeatedly.  CHIN shouted at them and said that she was merely answering questions from others and asked how that could be in breach of the law.  At about 4:39 pm, Detective Inspector PW6 approached CHIN and told her that she had obstructed the bailiffs in the execution of the Injunction Order.  After hearing this, she continued to remain at the scene and yelled, “我唔明喎，一個人點樣妨擾咗你你你你你你嗰個禁制令呀？” (meaning: she did not understand how she as a lone person would have interfered with the injunction).  PW6 explained to CHIN that the bailiffs and the Airport Authority had given repeated warnings for her to leave.  PW6 also requested CHIN to leave immediately or otherwise, the police would arrest her.  PW6 requested the press at the scene to give way for CHIN to leave.  PW6 asked CHIN which bus she would take but she did not answer.  CHIN continued to shout loudly as she slowly walked towards a bus stop in the Airport Bus Terminus.  In particular, she: -

(a)  alleged that the police officers at the scene were the ones who obstructed the Airport;

(b)  warned the police not to touch or get too close to her as she feared that she would be accused of assaulting a police officer;

(c)  expressed her sentiments towards police brutality; and

(d)  chanted the slogan of “香港人加油” (meaning: Hongkongers add oil).

11.CHIN then walked towards the bus stop of route A43/A43P/A33/A33X (“Bus Stop”) and sat on a bench there.  A staff member of AVSECO approached CHIN and asked her which bus she was going to take but she refused to answer and challenged the staff member for asking her such a question.  It was observed that between 4:47 pm and 4:50 pm two buses of routes A33 and A43 respectively arrived at the Bus Stop but CHIN did not board either of them.

12.At last, at about 4:51 pm, Police Constable PW10 arrested CHIN for “Contempt of Court”.  After the arrest, CHIN turned to reply to the media as to their questions of why she was arrested and claimed that she was just waiting for the bus.  CHIN was subsequently brought back to Airport Police Station for further enquiry.

13.CHIN now accepts that:

(1)  she was in the Airport Area for an extended period of time and must have heard the repeated requests and warnings made by the bailiffs/legal representative of the Airport Authority/staff members of the Airport Authority/staff members of AVSECO/ police officers on the terms of the Injunction Order prior to her arrest;

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

(3)  she knowingly and intentionally acted in breach of the following paragraphs of the Injunction:

(a)  Paragraph 1(b): She was attending or participating in a demonstration or protest or public order event in the Airport Area outside the Protest Area;

(b)  Paragraph 1(d): She was loitering in the Airport Bus Terminus area of the Airport without reasonable cause in breach of section 20(1) of the Airport Authority Bylaw (Cap 483A) in that she was idling, lingering or hanging about in the aforesaid area apparently not for ordinary and legitimate purposes connected with the use of the Airport; and/or

(c)  Paragraph 1(f): By refusing to leave the Airport Bus Terminus area of the Airport despite the announcements and repeated warnings from the staff members of the Airport Authority and/or AVESCO, she obstructed or interfered with them in enforcing or attempting to enforce paragraph 1(b) and/or (d) of the Injunction Order.

14.The deliberate acts of CHIN identified above, coupled with her determination to continue flouting the 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 Injunction Order, amounted to criminal contempt of court. 

Sentencing principles

15.I agree with the following propositions of Mr Chang SC (and with him, Ms Chan) on sentencing of contempt which are not controversial:

(1)  as a superior court of record[1], the Court of First Instance is invested with the inherent power to punish for contempt in maintaining its authority and preventing its process from being obstructed and abused[2];

(2)  a criminal contempt is engaged where there is a serious interference with the due administration of justice[3]. The offenders are punished, not for protecting the dignity of judges, but for the sake of public interest[4];

(3)  where the bailiff is involved in enforcing a court order, those in defiance of the bailiff’s orders would not be regarded as simply breaching the court order per se but also directly interfering with the administration of justice by obstructing the execution of duties of an officer of the court, ie the bailiff, who acts as an extended arm of the court in administering justice and must be fully protected from interference in discharge of his duty[5];

(4)  the Court has a wide discretion, under common law[6]and the Rules of the High Court (“RHC”) as to the sanction to be imposed for contempt, ranging from a fine[7] to a term of imprisonment (including suspended sentence)[8].  The Court may impose fines with sentences of imprisonment[9].  There may also be cases where a costs order will, in the light of the respondent’s means, constitute a sufficient penalty without a fine[10];

(5)  in considering the penalty to be imposed, the Court will have regard to the facts of the case, including the acts of contempt, its nature and volume, the circumstances in which the contempt is committed and the gravity of the interference with the due administration of justice[11];

(6)  in the context of breach of court orders, it is fundamental to the rule of law that court orders are made to be obeyed.  Court orders are not guidelines to be ignored or paid lip service to at the behest of the parties affected.  They are the building blocks by which the administration of justice is made workable.  As such, the starting and primary penalty for contempt of court in breaching an injunction order is imprisonment[12];

(7)  given criminal contempt threatens the due administration of justice as a whole and presents a direct challenge to the rule of law which is the very fabric and foundation of Hong Kong, the immense public interest involved in protecting the due administration of justice as an integral component of the rule of law ordinarily calls for a deterrent sentence on the contemnor with the dual aim of deterring him from reoffending and others from committing criminal contempt.  Accordingly, the sanction imposed on the contemnor is punitive in nature and a term of imprisonment is generally called for, although the Court retains a wide discretion to impose other forms of sentence as it deems most appropriate in the overall circumstances of the case[13].

Consideration

16.In my view, the misdeed of CHIN should not be viewed in isolation but has to be considered in the wider context that she was participating with other people in the “Suck with You” Campaign,[14] which targeted at disrupting the normal operation of the Airport.  Hong Kong is an international city and the Airport is its main door to and from the outside.  Any attempt to obstruct its normal operation would have a knock-on effect on the society as a whole and therefore must be taken seriously. 

17.The Defendant’s conduct is also serious as she had deliberately and intentionally flouted the Injunction Order which had already been widely publicized for some time before the incident and that she also had been given numerous warnings and opportunities on the spot to leave the Airport Area prior to her arrest, all of which she had simply ignored.  What the Defendant had done is totally unacceptable.  Irrespective of the Defendant’s political stance, there are proper channels elsewhere for her to express herself.  It is fundamental to the rule of law that court orders are meant to be obeyed and the authority of the court’s officers (bailiffs in this case) who are regarded as an extended arm of the court, are to be respected. 

18.I note also that the Defendant’s breach of paragraph 1(d) of the Injunction Order of itself constitutes a criminal offence, which is punishable by a level 3 fine and 3 months’ imprisonment.[15]

19.Based on the above, I agree with Mr Chang that the sentence to be imposed should contain an element of general and personal deterrence.  In my view, the present case calls for a custodial sentence.  The issue is how long that sentence should be and whether there are extenuating circumstances of sufficient weight which may cause the court to suspend the sentence. 

20.I am aware that that there has been some delay in the proceedings, as the incident under consideration took place almost one and a half year ago.  However, a significant part of the delay was caused by her lack of legal representation, her late application for legal aid, the subsequent legal aid appeal and her original intention to contest liability. Therefore, the time gap does not in my view afford her any mitigation.  I note that Mr Li does not submit the otherwise.   

21.As far as personal circumstances are concerned, I am informed by Mr Li, the Defendant’s counsel, that she was aged 59 at the time (now 60).  She is widowed with a 24-year-old son studying in the United Kingdom.  She retired as a Correctional Services Department Officer in around 2007 and has been receiving a monthly pension payment of HK$9,000 ever since.  She has been suffering from mild chronic back and heel pain.  Other than that, she does not have major medical issues.  Upon enquiry by the Court, Mr Li informs that the Defendant and her father are living in a private flat owned by the Defendant in Tuen Mun the mortgage of which has been fully repaid.  As regards the living and education expenses of the son, those are taken care of by the estate of the Defendant’s late husband.  Mr Li also places before me mitigation letters written by the Defendant’s family members, the contents of which I have duly noted.

22.Furthermore, Mr Li has very properly informed the court that the Defendant has a criminal record of common assault in May 2019 for which she was sentenced to 7 days’ imprisonment, suspended for 1 year. I understand from Mr Li that the common assault relates to an altercation between the Defendant and a security guard inside the High Court Building.  I am also told that she is now appealing against that conviction.  I will not speculate the outcome of that appeal.  However, regardless of what the result would be, the fact remains that CHIN committed the present criminal contempt when she was aware that there was an extant suspended sentence acting as a sword of Damocles hanging over her head.  However, I note that the provisions of s109C of the Criminal Procedure Ordinance, Cap 221 regarding suspended sentence in criminal cases are not relevant here[16].   As noted above, the power to suspend the execution of the order of committal comes from the common law which is reinforced by the provisions in O 52 r7, RHC.

23.Following the sentencing approach laid down by the Court of Appeal in Secretary for Justice v Wong Chi Fung (Criminal Contempt), having taking into account the circumstances of the offence and CHIN’s limited non-leading role in the incident, the absence of any violence or abusive languages on her part, I am of the view that the sentence shall be one of 30 days’ imprisonment after trial. 

24.As to whether or not to suspend the sentence, I take into account the following which Mr Chang has fairly drawn to my attention:

(1)  the Defendant has demonstrated remorse by pleading guilty and making an unreserved apology to the court, the Airport Authority and other parties involved for her actions;

(2)  her breach appears to be one-off and lasted only for about an hour; and

(3)  she had not caused any significant obstruction to or interference with the overall operation of the Airport or its users.

25.This is a borderline case.  However, having heard Mr Chang and Mr Li, I decide to exercise my discretion to suspend the sentence.  Therefore, the Defendant is sentenced to 30 days’ imprisonment suspended for a period of 12 months on the following conditions, namely during the said 12-month period the Defendant must not commit any acts of criminal contempt or any criminal offences punishable with imprisonment, failing which she would be brought back to this court and the aforesaid prison sentence would be activated. 

26.Lest it be misunderstood, this Court has to say that the Defendant should count herself fortunate in avoiding an immediate custodial sentence, as the result could easily have been different.  This Court does not intend to set a precedent.  People who flout a court order in similar circumstances with a view to impede the due administration of justice should generally expect an immediately sentence.  In this regard, it should be noted that when the Court of Appeal referred to the suspended sentences imposed on others contemnors in Wong Chi Fung’s case, ante, it was in the context of dealing with the respondent’s argument on disparity.  The Court of Appeal said that the apparent disparity is readily explained by the findings on the differences in involvement or role played by those contemnors in interfering with the administration of justice.   It is not the judgment of the Court of Appeal that those people who had taken a non-leading role in a criminal contempt could expect their sentences to be suspended.  To the contrary, the clear and loud message of the Court of Appeal is that punishment and deterrent are the major sentencing considerations for cases of criminal contempt.

Costs

27.As noted in Secretary for Justice v Cheng Lai King[17], which is a case of civil contempt, the usual order in a successful committal procedure is for costs to follow the event and so to be payable by the person found guilty of contempt, and such costs are usually ordered to be paid on an indemnity basis.  On the other hand, as noted in Secretary for Justice v Chan Oi Yau Riyo[18] which was also a case of civil contempt, approaching costs by requiring payment of a contribution only, rather than on a full indemnity basis, may in appropriate circumstances also reflect the appropriate degree of proportionality when the penalty and costs can be regarded as composite elements of the proceedings’ impact on a defendant.  However, each case will fall to be determined on its own particular facts and circumstances. 

28.The Plaintiff seeks a summary assessment by reference to a statement of costs totalling $481,917.00 which included a significant sum for counsel fee.  The statement of costs also shows that a number of government counsel were involved in preparing the Plaintiff’s case.  I am informed that Mr Chang had been briefed by the Plaintiff in this case before he was admitted to the inner bar in May last year and after that, his participation is required for the sake of continuation. In my view, an issue arises as to whether the Plaintiff should have continued to engage senior counsel for what has later become a sentencing matter, bearing in mind that the sentence could have been more than competently handled by government counsel.  As mentioned above, by mid-January 2021, the position has been already clear that the committal proceedings are not to be contested.

29.As regards CHIN, as aforesaid she is a retired person with a monthly pension of around $9,000 and she has her father to support.  Whilst the Defendant appears to be a person of limited income, she and her father live in a private owned property free of mortgage. From what I have been told, she does not need to worry about her son’s living and education expenses in the UK.

30.In assessing the costs claimed by the Plaintiff, by a broad brush approach, in the exercise of my discretion as to costs, I order that the Defendant shall pay the Secretary for Justice’s costs in these proceedings, which is summarily assessed at $400,000.  The Defendant is given time to pay up to 5 pm on 11 May 2021.   

Mr Jonathan Chang, SC and Ms Ester Chan, Acting Senior Government Counsel, instructed by the Department of Justice, for the Plaintiff

Mr Marco Li, instructed by H M Tsang & Co, for the Defendant