Secretary for Justice v. Tang Lin Ling

HCMP 2917, 2918, 2925, 2929 & 2931/2015

[2022] HKCFI 2471

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS

NO 2917, 2918, 2925, 2929 AND 2931 OF 2015

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D E C I S I O N

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COURT:  The present proceedings is brought against the respondent, Miss Tang Lin-ling, for criminal contempt committed in the face of the court by deliberately taking photographs inside Court 28 of the High Court on 23 May 2018.

It is alleged that the abovementioned conduct committed by the respondent constitutes serious interference to the due administration of justice and therefore amounts to a criminal contempt of the court.

The Secretary for Justice participates in the present proceedings not as prosecutor, but as guardian of the due administration of justice.

All the evidence in this proceedings was presented by Ms Maggie Wong, legal representative of the Secretary for Justice. 

It is not disputed that on 23 May 2018 High Court Miscellaneous Proceedings No 2917, 2918, 2925, 2929 and 2931/2015 (collectively referred to as the underlying proceedings) were listed for hearing.  The underlying proceedings relate to, by coincidence, criminal contempt allegedly committed by a number of participants of the Occupy Central Movement in Mong Kok, Kowloon. 

Four witnesses had been called by the Secretary for Justice to give evidence in this matter.  The respondent in this case, after declining Legal Aid, also chose to defend herself and elected to give evidence herself. 

Evidence from the first three witnesses called by the Secretary for Justice can be summarised as follows: 

At about 9.30 am on 23 May 2018, Mr Sik Chee-ching, Mr Joshua Kanjanapas and Mr Leung Fuk-chi followed their respective pupil masters (Mr Victor Dawes, senior counsel, and Mr Jin Pao) arriving at court number 28 of the High Court in preparation of the underlying proceedings.  Mr Dawes and Mr Pao represented the Secretary for Justice in the underlying proceedings.

As the underlying proceedings might attract media attention and possibly large public presence, seating arrangements had been put in place to limit the number of public entering the courtroom.

Mr Sik, Mr Kanjanapas and Mr Leung, on their arrival at the High Court, all managed to obtain an admission ticket to gain entry into the court.  Upon entering the court they sat on the third row on the left-hand side of the public gallery.  There are four seats on the third row.  Mr Sit sat on the second seat, Mr Leung on the third, and Mr Kanjanapas on the fourth. The first seat, ie, the aisle seat, was not occupied at the time.

Shortly afterwards the respondent entered the courtroom and sat next to Mr Sik.  According to Mr Sik, when he was sitting and waiting for the commencement of the underlying proceedings, he was annoyed by the vibrating noise emanating from the respondent’s mobile telephone (an iPhone).  He then looked across and saw the webpage of WeChat movements appearing on the respondent’s mobile phone.  Two photographs appeared on the webpage, one depicting an admission ticket and the other one depicting the front entrance of Court 28.

At around 9.55 am Mr Sik saw the respondent hold up her mobile telephone to the level of her chest and take two pictures of the court.  As the underlying proceedings were about to commence, Mr Sik did not report the matter to anyone.

During the proceedings, Mr Sik kept hearing vibrating noise emanating from the respondent’s mobile phone.  Again, when he looked across he saw the WeChat movements screen appearing.

At about 11 am the underlying proceedings were adjourned for a break.  When Mr Sik stood up along with others to bow, he saw the respondent hold up her mobile phone again.  She took on this occasion a picture of the court.  According to Mr Sik, all of them, ie, the three pupils, witnessed the latest photo taking.

Outside the courtroom, they informed Mr Dawes about the incident.  After learning the incident, Mr Dawes then returned to the court and reported the matter to the court clerk. 

Mr Sik also told us that the respondent’s mobile telephone was then later confiscated by the court. 

Mr Sik’s account in relation to the taking of photographs before the 11 am break was independently supported by both Mr Kanjanapas and Mr Leung’s evidence, to which I am not going to repeat.  Both Mr Kanjanapas and Mr Leung gave similar accounts regarding the second incident.  Mr Kanjanapas also gave us a demonstration regarding the respondent’s acts and movement.

The last witness called by the Secretary for Justice was Detective Police Constable 7992, Mr Lau Cheuk-san.  At 3.30 pm on 25 May 2018 Mr Lau and his team arrived at the High Court.  At 5.25 he took 15 photographs of the court.  Signs prohibiting the taking of photographs could be seen outside and inside court number 28.  At 5.53 pm he received the respondent’s mobile telephone from the staff of the judiciary.

At 4.15 pm on 29 May 2018, Mr Lau, together with Detective Police Constable 8039, examined the respondent’s mobile telephone and found three photographs relevant to the present proceedings. 

The respondent chose to testify.  Miss Tang told us that on the material day she came to the court simply to observe the court’s proceedings, since the underlying proceedings involved issues of public importance and riot.  She wanted to learn about the Hong Kong legal system, for she had recently obtained her legal qualification in mainland.

According to the respondent, when cases involving public interest or affecting people’s livelihood, the transparency of the proceedings became paramount and it would induce and maintain the public confidence in the justice system if the proceedings could be as open as possible. 

With respect in her heart, she entered the courtroom.  Inside the court she, however, saw people sitting in the public gallery playing with their mobile phones.  In fact, she noticed that people kept using their mobile telephones and typing on their notebook computers throughout the proceedings. When the court was in session, the respondent did not use her mobile phone at all.  Her mobile phone, according to her, was connected with an earphone and therefore could not possibly generate any sound or noise.  Further, her mobile phone had been switched to airplane mode without any outside network connection.  In summary, her mobile telephone was dead silent.

As to the allegation that she had taken photographs before the commencement of the underlying proceedings, the respondent said that as the matter took place some time ago, she did not have much recollection and awareness of the incident.  That also applies to the second incident, ie, the taking of another photograph shortly after the court was adjourned.  According to the respondent, she had almost forgotten about the second incident, nevertheless she told us that she accepted the result of the police investigation. 

The respondent stressed that she held great respect to this court and had no intention to commit any contempt of the court.  She had no intention to obstruct or interfere with the administration of justice, nor did she intend to hinder the progress of the underlying proceedings. 

According to the respondent she did see signs prohibiting the use of mobile phones, but people carried on using their mobile phones inside the court regardless.  People also ate and drank inside the courtroom despite signs prohibiting such behaviour.  As to the signs prohibiting the taking of photography inside the courtroom, the respondent claimed that she was not aware of the existence of any such signs. 

As to whether she had uploaded photographs onto her WeChat account, the respondent again told us that she had forgotten about that too.

Discussion

The respondent is alleged to have committed criminal contempt. The responsibility in proving that lies with the Secretary for Justice.  The standard, of course, is one of the criminal standard.

Having heard the evidence given by Mr Sik, Mr Kanjanapas and Mr Leung, I have no hesitation in accepting their evidence.  Their evidence was clear and direct.  All three of them were able to give detailed accounts of what they witnessed.  I have no doubt they were telling the truth.  More importantly, their evidence was supported by objective photographic exhibits, photographs extracted by the police from the respondent’s mobile telephone. The three photographs retrieved and recovered bear the timestamps which correspond with Mr Sik’s account of the respondent’s conduct.  The three relevant photographs depict parties to the underlying proceedings, including counsel, respondents, court interpreter, court clerk and court reporter. 

As to the evidence given by the respondent, I reject her evidence, in particular her assertion that she had forgotten about the taking of any photographs on 23 May.  The alleged incident took place only slightly more than a week.  If the respondent was telling the court the truth about her academic achievement, that she is in her mid-30s and had scored a top mark of 395 points from the 2017 mainland legal qualification exam, and with a Master’s Degree in Finance from the University of Sydney, her memory could not be that disappointing.

In my view, the respondent chose to ignore the realities; the reality of her taking photographs in court, the reality of signs clearly prohibiting the taking of photographs inside courtroom. 

I, however, accept that the respondent had not deliberately intended to hinder the progress of the underlying proceedings.  I say so because she chose to take her photographs either before or after the court was in session.  Further, I also accept that she indeed simply wished to come to court to learn about our legal system and observe the judicial process.  I also accept that she did not have any ulterior motive in either obstructing or interfering with our administration of justice.

In order to find the respondent guilty of criminal contempt, it is necessary to prove both the requisite actus reus and mens rea of the charge.  So what are they in the present case given the respondent was found to have no specific intention to obstruct or interfere with the administration of justice?

As pointed out in paragraph 91 of the judgment of the Secretary for Justice v Wong Ho Ming CACV 259/2017 (2018 HKCA 173):

“Under the Hong Kong Common Law on mens rea for criminal contempt:

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

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

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

In the present case the alleged criminal contempt concerned the deliberate taking of photographs inside the court.  The prohibition or the restriction was directed at none other than the court users, be they the lawyers or members of the general public.  The respondent in the present case, being a member of the general public who wished to observe the court’s proceedings, was bound by the prohibition/restriction. 

In order to find the respondent guilty of criminal contempt it is in this case sufficient to show her basic intent to perform the act coupled with the act itself.  Translating that into the present case, it is sufficient to show that the respondent intended to take photographs inside the court and did take photographs and that her action of taking photographs was inherently likely to prejudice or interfere with the due administration of justice.

It is beyond doubt that the respondent did take photographs inside the court, three altogether.  These three photographs were taken about one hour apart on two occasions.  They were not taken accidentally or inadvertently.  The respondent was seen by Mr Sik to take out her mobile telephone and to hold it at her chest level before she pressed the bottom on the screen.  It was, in my view, a conscious effort.

Her action in taking photographs was not only inherently likely to, but factually prejudice or interfere with the due administration of justice.  The underlying proceedings were suspended and later came to a complete halt.  Time and a great deal of resources had to be spent in dealing with the respondent.

With all that in mind, I am sure the respondent is guilty of criminal contempt.

(Proceedings from 10.31 am not required)

Court adjourns - 11.15 am

4 June 2018