Secretary for Justice v. Chan Po Hong

HCMP 2199/2021

[2022] HKCFI 1468

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2199 OF 2021

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D E C I S I O N

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A. Introduction

1.In December 2020, the Defendant was an immature and socially isolated 17-year-old, as exacerbated by his autism, who had long lacked real care and life guidance.  Apparently also largely alone, the Defendant acted in a way which he now accepts was a contempt of court and breach of the injunction order (“Judges Doxxing Injunction”) granted by this Court on 13 November 2020 in HCA 1847/2020 (“underlying civil action”).  This is the mitigation and sentencing hearing for that contempt.

2.The acts constituting the contempt occurred on 6 December 2020.  The ex parte application made by the Plaintiff (“SJ”) to seek leave for a committal application was dated 28 December 2021, over a year later.  I granted leave on 30 December 2021.  The Originating Summons was issued on 5 January 2022. 

3.But, by the time the contempt proceedings were launched, the SJ had also brought criminal proceedings against the Defendant on 1 June 2021, arising from a charge laid on 18 May from exactly the same acts. It is noteworthy that the charge was laid just before the expiry of the 6-month limit for bringing any such charge.  Yet those proceedings, once brought, have in effect been ‘put on ice’ – at the SJ’s request – pending first the preparation of these contempt proceedings and now to await the result.

4.In bringing these contempt proceedings, the SJ is acting in the role as guardian of the public interest and the administration of justice.  When the circumstances set out below are understood, there may well be room for people to wonder if pursuing this particular individual in two sets of proceedings, left hanging over him until now approaching 2 years after the event, is really in the public interest or leads to justice being administered.

5.Following the Defendant’s acknowledgement of service on 11 May 2022, in which he indicated that he did not intend to contest liability, the originally fixed first return date was vacated, and directions were made by consent to bring the matter to this mitigation and sentencing hearing.

6.To assist the Court with the sentencing process, the SJ and the Defendant have also usefully provided a Statement of Admitted Facts.

7.At this hearing, the SJ has been represented by Mr Martin Ho of Counsel and Mr Andrew Tong, Government Counsel.  The Defendant has been represented by Mr Richard Yip and Mr Jason Ko of Counsel (Mr Ko acting on a pro bono basis, without objection from the Director of Legal Aid).

8.This is my Decision.

B.      Judges Doxxing Injunction

9.On 30 October 2020, the SJ (as ‘plaintiff’ in the underlying civil action) made an ex parte application for an injunction against persons (as ‘defendants’ in the underlying civil action) unlawfully and wilfully conducting themselves in any of certain prohibited acts. Shorn of some of the detail, the prohibited acts were:

(1)  using, publishing, communicating or disclosing to any other person the personal data of and concerning any Judicial Officer(s) and/or their spouses and/or their respective family members, intended or likely to intimidate, molest, harass, threaten or pester any of them without the consent of the person concerned;

(2)  intimidating, molesting, harassing, threatening or pestering any Judicial Officer(s) and/or their spouses and/or their respective family members;

(3)  assisting, causing, counselling, procuring, instigating, inciting, aiding, abetting or authorising others to commit or participate in any of the aforesaid acts.

10.On 30 October 2020, I granted an interim injunction in those terms.  The granting of the interim injunction was announced via Press Releases by the Government of the HKSAR.

11.On 5 November 2020, the SJ made an inter partes application against the defendants in the underlying civil action for continuation of the interim injunction.  At the hearing of that application on 13 November 2020, no defendant appeared.  After hearing from Counsel for the SJ, I made an order continuing the interim injunction until trial or further order of the Court (i.e. the Judges Doxxing Injunction).

12.In my Decision – reported at [2020] 5 HKLRD 638 – explaining the grant of the Judges Doxxing Injunction:

(1)  I emphasised (at §46) that the due administration of justice requires, amongst other things, that Judges or judicial officers should be able to 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. 

(2)  I also expressed agreement (at §42) with the point 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.

(3)  Further, I noted (at §39) 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 recognised that there are many – perhaps the significant majority of people in Hong Kong, and people 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 Hong Kong success story.

13.Service of the interim injunction and the Judges Doxxing Injunction was affected by way of substituted service, by publishing a copy of them on the webpages of the Police, the Department of Justice and the Government.

C.      The Breach and Contempt

14.On Sunday 6 December 2020, approximately between 19:51 and 19:59 a judicial officer and his wife received a total of eight nuisance calls (“Nuisance Calls”) on their respective mobile phones.  The judicial officer did not pick up either of the two Nuisance Calls made to his phone.  Though his wife picked up three of the six Nuisance Calls made to her phone, the caller did not utter anything.

15.The police investigated and traced the Nuisance Calls to the Defendant’s phone number.

16.On 5 March 2021, the Defendant was arrested and cautioned for “Telephone Nuisance”.  Upon arrest, the Defendant admitted under caution that he made the Nuisance Calls for fun (original words in Chinese: “我都係一時貪玩，先至玩個法官同佢老婆電話，無下次喇”) (English translation: “I messed with the phone (numbers) of the Judge and his wife just for fun.  (I) won’t do it again”).

17.In a video-recorded interview conducted at the Police Station from 11:02 to 11:42 the same day (at which the Defendant was accompanied by his father), the Defendant admitted under caution that he had made the Nuisance Calls to the judicial officer and his wife to pull a prank on them (“整蠱佢”). The Defendant also admitted that:

(1)  he had access to social media platforms such as Telegram, and he obtained the judicial officer’s and his wife’s phone numbers from a Telegram chat group (although he had forgotten the exact name of that chat group);

(2)  he targeted the judicial officer because the judicial officer was a “blue-ribbon” in support of the Government;

(3)  it was in that context that he made the Nuisance Calls to the judicial officer and his wife to prank them for fun (original words in Chinese: “貪玩，想整蠱佢”).

18.Upon forensic examination of the Defendant’s phone on 18 March 2021, it was discovered that his phone contained a screenshot of a message extracted from a Telegram Channel containing the personal data of the judicial officer and his wife (including their respective full names, telephone numbers, residential address, Hong Kong identity card numbers and dates of birth) (“Telegram Message”), which was created at about 19:50 on 6 December 2020, i.e. immediately before the Nuisance Calls.

19.The judicial officer and his wife have confirmed that the personal data shown in the Telegram Message were accurate personal data of themselves.  They also stated they had never supplied their personal data to the Defendant and had never given consent to any person to disclose any of their personal data on Telegram, including the particular Telegram Channel.

D.      The Effect of the Breach

20.The Nuisance Calls, made by misusing the personal information of the judicial officer and his wife wrongfully divulged on the Telegram Channel, has caused distress to them.  The wife in particular became worried that her personal data would be used illegally and that she and her family members would be harassed or pestered.

21.Both the judicial officer and his wife have filed an affirmation in these proceedings in December 2021, explaining the adverse effects of the doxxing campaign on themselves and their family:

(1)  the judicial officer and his wife had been subject to nuisance calls and calls with foul language hurled at them;

(2)  on 3 December 2020, the judicial officer’s secretary had received an intimidating call at the office from an unknown male, who threatened to hurl bombs and kill the judicial officer and his family;

(3)  their personal data had also been misused for the registration of organ donations, COVID tests, HIV tests, and subscription to services for which they had not applied;

(4)  the nuisance calls were so persistent and frequent that they had been unable to use their mobile phones in an ordinary manner.  Given the severity of the nuisance, harassment and intimidation, they had unplugged their landline phone at home and reject calls from phone numbers that are not on their contact lists.

22.I specifically note that, other than the Nuisance Calls made by the Defendant within a 9-minute period on 6 December 2020, it is not suggested that the Defendant participated in any other of the above harassing activities.  Of course, the effect of the Nuisance Calls would have been felt within that context.  But I shall approach sentencing by focusing on what the Defendant did, rather than on things he simply did not do.

E.      Parallel Criminal Proceedings

23.As already indicated, separately on 1 June 2021, the Defendant was charged with one count of making persistent phone calls contrary to section 20(c) of the Summary Offences Ordinance Cap 228.  The relevant calls the subject of the charge are only those made to the judicial officer’s wife, presumably on the basis that the making of only two calls to the judicial officer will unlikely be thought to be persistent. 

24.The matter was first adjourned on the ground that the committal proceedings for civil contempt would be brought. 

25.On 25 August 2021, the Defendant’s legal representatives wrote to the Department of Justice to enquire as to the progress of contempt proceedings.  No reply was received.

26.On 6 September 2021, the Prosecution sought another adjournment of the criminal proceedings pending preparation of the contempt proceedings.

27.On 2 December 2021, the Defendant’s legal representatives wrote again to the Department of Justice to enquire as to the progress of the contempt proceedings.  No reply was received.

28.On 13 January 2022, the application papers for the contempt proceedings were personally served on the Defendant.

29.The criminal proceedings have continued to be adjourned pending resolution of these contempt proceedings.  The next mention hearing is on 18 November 2022.

F.      Sentencing Principles

30.It seems to me that, as a matter of principle, there is no reason why the sentencing guidance given by me in the Police Doxxing Injunction cases should not equally apply as regards breaches of the Judges Doxxing Injunction.

31.Reference can be made to Secretary for Justice v Chan Oi Yau Riyo [2020] 3 HKLRD 494 at §§54-63; Secretary for Justice v Cheng Lai King [2020] 5 HKLRD 356 at §§64-72; Secretary for Justice v Chan Kin Chung [2021] 1 HKLRD 563 at §§38-45; and Secretary for Justice v Sung Ho Tak Edward [2022] 1 HKLRD 779 at §§35-40.

32.Therefore, the appropriate starting point for breaches of the Judges Doxxing Injunction is one of an immediate custodial sentence, and one perhaps measured in months. 

33.There is also force in Mr Ho’s submission that breaches of the Judges Doxing Injunction are by their nature more serious than breaches of the Police Doxxing Injunction, since such breaches directly undermine public confidence in the very machinery by which justice is administered.  That is why the need to protect the administration of justice from abuses and unjustified attacks is in itself a sentencing consideration: see Secretary for Justice v Yuen Oi Yee Lisa [2011] 1 HKC 346 at §25.

G.      SJ’s Submissions

34.Mr Ho submits on behalf of the SJ that it is appropriate for the sentencing in this case to start from an immediate custodial sentence, and one perhaps measured in months.  Mr Ho says that is warranted, both as a matter of principle and on the facts of the case, because:

(1)  The Defendant’s acts constitute a direct assault on the due administration of justice in Hong Kong.  Even though there is no evidence that any judicial officer would be deterred in the proper discharge of their duties by reason of the Defendant’s acts, it is the attempted interference with and the undermining of public confidence in the administration of justice that needs to be prevented and punished.  A deterrent sentence is plainly called for.

(2)  In the Defendant’s own words, he made the Nuisance Calls because he regarded the judicial officer as a “blue-ribbon” in support of the Government.  The Defendant’s acts were plainly intended to instil a ‘chilling effect’ on individuals he regarded as being in the ‘opposite’ political camp, such that those individuals or targeted groups or sectors of the public are intimidated into silence or suppressed in expressing their opinions openly and honestly or conducting their affairs or pursuing their life in the way they would wish for fear of being victimised by doxxing (see the Cheng Lai King case at §82).

(3)  The Defendant’s contention that he committed the wrongful acts by reason of the “febrile social atmosphere” should be rejected. Not only is that not a mitigating factor, the “social atmosphere” had already much calmed by December 2020 (as compared with the state of affairs a year prior).

(4)  Also, as at December 2020, this Court had already handed down previous sentencing decisions.  The Defendant, being at the time an active Telegram user who subscribed to various protests news channels, would have knowledge of this Court’s warning in the Chan Oi Yau Riyo case at §93, that “if such doxxing activities are continued in breach of the Court’s order and if those engaging in such activity are brought before the Court – particularly if the offending activity takes place after this Decision – those persons may not be so fortunate in avoiding an immediate custodial sentence”.

(5)  In conventional language of the laws of contempt, the Defendant’s acts in question can only be described as “contumacious” and “contumelious”.

(6)  That the Defendant was allegedly acting “out of impulse” is not a valid mitigating factor.  A person who has given no thought to the logical likely potential consequences of his actions remains culpable, and the Court has previously expressed that a person cannot expect to be treated leniently merely because he has failed to form the actual intention which is nevertheless the logical consequence of the acts performed.

(7)  The Defendant’s relatively young age may be a partially mitigating factor, but the point should not be taken too far where the primary sentencing consideration is one of deterrence.

(8)  The sentence passed should reflect the fact that the impact of doxxing on judges has both a public dimension and a personal effect.  The Court should send a clear message to the public that the conduct in question is not to be tolerated in a civilised society, and that the sentence passed should have a deterrent effect on would-be defendants or contemnors.

35.I shall take those submissions into account, and apply weight to the points as to me seems fit.  Many of them have considerable force.

H.      The Defendant’s Evidence

36.In the first substantive paragraph of his affirmation, the Defendant states the following:

At the outset, I wish to unreservedly tender my sincere apology to the Court for breaching the Injunction.  This is my first transgression of the law for which I regret enormously.  I clearly understood what I did was wholly wrong and there is no excuse for how I behaved.  I am genuinely remorseful for having breached the Injunction.  I have learned my lesson and would like to promise the Court that I would never do it again.

37.As to his personal background, the Defendant states that:

(1)  He is now 19 years old, with no criminal record.

(2)  He was born and raised in Hong Kong, and educated to Form 5.

(3)  He had an unpleasant childhood.  Born out of wedlock, he lived in a subdivided flat with his parents until the age of four, when his parents separated due to persistent quarrels.  After that, he lived with his mother for a year or two in a public housing estate, during which time his mother observed he had behavioural issues.  He was diagnosed with Autism Spectrum Disorder (“ASD”) by a psychiatrist.

(4)  His mother suffered from depression, and committed domestic violence against him.  Her psychiatric conditions deteriorated and she committed suicide when he was five years old.

(5)  His father was addicted to Ketamine and developed alcohol dependence, and had a record of several previous criminal offences.

(6)  As a result, the Social Welfare Department made him a ward of Court in 2008, when he was five years old, and he has been supervised by social workers until now.

(7)  His younger sister, now aged 15, is also a ward of Court.  They have been assigned to different Small Group Homes and have been able to meet each other only occasionally.  However, he has tried his best to take care of his younger sister, including giving her an iPad as a gift for online learning.

(8)  After having been admitted into Small Group Homes, he fell victim to abuse from his peers.  He was therefore relocated multiple times and changed schools a few times.  Together with his ASD condition, this caused adjustment issues and difficulties in establishing a social network.

(9)  At the time of the breach of the Judges Doxxing Injunction, on 6 December 2020, he was 17 years old.  He had been living in a hostel providing places for children lacking proper family care, for three years.  Most of the other persons using the hostel were younger than him and they received more attention from the workers of the hostel, who had limited time to show care and concern for him.  He also found it difficult to follow the rules because of his ASD traits, resulting in a souring relationship between the hostel workers and himself.

(10)  It was in that context that he took the “foolish move” of making “prank calls” without serious consideration of what the likely consequences might be.

38.As to the breach itself, the Defendant states that:

(1)  In early December 2020, he learned from a Telegram chat group that the judicial officer was alleged to be a supporter of the pro-establishment camp, literally known as a “blue-ribbon” in Chinese. There were many messages in the Telegram chat group criticising the judicial officer, and one message contained the personal information of him and his wife.

(2)  He made a total of eight calls, “as a prank” and “influenced by that then febrile social atmosphere and out of impulse”.  He did not intend to intimidate or threaten the judicial officer or his wife, and as it was all intended to be a prank he did not utter anything.

(3)  In making the calls he was blinded by hatred towards the Government as ventilated by others, and simply followed others without any real anger or grievances of his own against the judicial officer or his wife.  It was a “silly act in the heat of the moment”.

39.The Defendant also states that he was fully cooperative with the police, frankly admitted the calls, and gave a detailed explanation for doing so.  He also expressed immediate regret and promised not to do it again.  He has continued to report to police once a month until he was charged with “Telephone Nuisance” in the Eastern Magistrates Court.  That case is ongoing, as the prosecution has sought repeated adjournment of the matter pending these civil contempt proceedings.  The Defendant states that it seems the Department of Justice is attempting to punish him twice for the same act.

40.Once he received the Legal Aid Certificate, he instructed his solicitors to file an acknowledgement of service admitting liability as soon as practicable.

41.The Defendant says that, since the arrest, he has refrained from engaging in any political activities, and is more cautious about his own behaviour.  From their reaction, he has learnt that his family and friends do care about him and that he should not let them down.  He has unsubscribed the Telegram groups or channels related to doxxing or causing nuisance to police or judicial officers.  He has become alert to the danger of abusing technology and social media, and appreciates the significance of expressing his views in a proper way.

42.The Defendant also says that, he understands he is now an adult and should be responsible for his own conduct.  He has moved back to live with his aged father (who is 71 years old) and is trying to take care of him.  Recognising that his impulsivity could be attributed to ASD symptoms, the Defendant has sought and received counselling and training from a community support service scheme, and as a way of giving back to the community takes part in voluntary services.

43.The Defendant says that the case has cast uncertainty on his future career plans, and his dream to become a registered nurse, and has caused him tremendous stress since his arrest.  He says he has reflected on his behaviour and is genuinely sorry.  He has produced a handwritten letter to convey his sincere apology to the Court, and would like to express his apology to the judicial officer and his wife for the disturbance that was caused by his act.  Amongst other things, the letter explained why he made the Nuisance calls, but stated that he did not intend to intimidate or threaten the victims of his calls which is why he did not utter anything at the time.  Nor did he make any other calls to harass the judicial officer or his wife.

44.The Defendant also exhibits mitigation letters from (a) his father, (b) his aunts and a cousin, and (c) a teacher.  I do not need to set out their content here, but they speak with one voice that the Defendant is immature, has lacked supervision, and would not have intended to commit any crime deliberately, but his learning and social difficulties devoted his attention to the Internet where he came under the influence of others. They also speak to his real regret, and his understanding to learn from this lesson to correct misdeeds and prevent any repetition.

45.He exhibits a psychosocial and psychiatric report produced by Project Change, a NGO providing counselling and support for arrested youths in Hong Kong. 

46.On the psychosocial aspects, the report explains that atypical autism is a type of pervasive developmental disorder, which will incur significant impairment in the development of verbal and non-verbal skills of the individuals, to the point of affecting their social interaction, displaying inappropriate or unusual behaviours resulting in alienation in their social networks.  Now, with explanation and direct input from helping professionals, the Defendant now recognises the disruptive nature of his impulsive reactions, and he deeply regrets his phone harassment behaviour.  It was only with proper guidance from external advisors and counsellors that he began to decipher hidden but significant messages that are transmitted through non-verbal interchanges in social communications.  Through such guidance, he has also been made aware of how social media could be abused and misused, and why such abuses are unacceptable.  The Defendant has been enrolled in a behavioural training programme for autistic individuals.  He has complied with the law since his arrest, and duly observed his bail conditions.  He has become more self-reliant and prepared for independent living, including pursuit of training and possible further studies to be a nurse in future.

47.On the psychiatric assessment, the report sets out the history and diagnosis of ASD.  The report states that the Defendant was under the influence of ASD on the day of the incident.  As a result, he had rigidity of his behaviour, poor decision-making and had poor judgment of the risks in social situations.  He did things impulsively without consideration of the possible consequences.

48.The conclusion of the report is that the Defendant engaged in unintended unlawful behaviour resulting from his ASD and associated lack of support from his social environment.  However, over the last nine months (to May 2022), the professional team of Project Change had identified significantly positive elements that would facilitate him to be a law-abiding individual with a commitment to keep peace with society.  The professional team is of the opinion that the Defendant deserves to be given a second chance for consideration of a suspended sentence or other lenient sentencing options.

49.As to his employment position, the Defendant says he has started a new job as a part-time food service worker since May 2022, working five days a week and earning about HK$6,000 per month.  A previous income from receipt of CSSA ceased in April 2022.

50.The Defendant concludes his affirmation by stating that the incident was caused by his impulsivity and ignorance of the law, that it was totally out of character, and that he is willing to accept full responsibility for his act.  He says he will strictly abide by and will observe the laws and all Court orders in future and will never again breach any Court order.  Therefore, without undermining the seriousness of his act, he seeks leniency towards the sentencing.

I.       Submissions in Mitigation

51.Mr Yip accepts that a custodial sentence would be an appropriate starting point, but submits that a suspended sentence would be most appropriate for the Defendant in this case, for the summary reasons:

(1)  Personal circumstances: The Defendant has no criminal record, and was very young and immature at the time of committing the contempt.  He is genuinely remorseful of his conduct.  He came from a broken family and suffered ASD, lacking parental care in his formative years.

(2)  Circumstances of the contempt: He made two and six phone calls to the judicial officer and his wife respectively within a short span of time (around nine minutes) without uttering anything.  At the time, he did not realise what he did would amount to a breach of the Judges Doxxing Injunction.

(3)  Delay: Almost 2 years have passed since the act of contempt.  There is significant prosecution delay.

(4)  Criminal Proceedings: Whilst the contempt proceedings have brought home to the Defendant that orders of the Court are to be obeyed, the Defendant also still needs to face criminal proceedings for the same underlying act.

(5)  Personal deterrence: It is highly unlikely that the Defendant would act in contempt of Court again, or commit any acts of doxxing.

(6)  General deterrence: The acknowledgement by the Defendant of his liability, and his willingness to accept the sanction of the Court, go very far to encourage observance towards the Court’s orders.

(7)  Reform and rehabilitation: The Defendant has reformed himself and established a stable life pattern (which is not easy for someone of his background and with ASD), which would be interrupted by any immediate custodial sentence.

52.Mr Yip emphasises that the proceedings have brought the Defendant prolonged stress and emotional distress, which caused him (amongst other things) to quit secondary school in August 2021.  Nevertheless, he has since actively pursued other careers, though he has terminated study for a Diploma.  Instead, he has sought gainful employment, having previously worked part-time in food delivery and now as a food service worker of McDonald’s since 1 May 2022.  He has become totally self-reliant financially since his receipt of CCSA ceased in around April 2022.

53.Mr Yip submits that credit should be given to the Defendant for admitting his responsibility for his act at an early stage, when arrested and interviewed under caution, and that he admitted liability soon after these contempt proceedings were commenced against him.

54.Mr Yip refers to the counselling and training given to the Defendant by social work professionals, which has prompted the Defendant himself to take part in voluntary services to support disadvantaged groups.  It has also enabled the Defendant to become cautious of his own behaviour, reflected in his unsubscribing from certain Telegram groups, and becoming alert to the danger of social media abuse.

55.Mr Yip asks me to accept that the Defendant is genuinely remorseful of his conduct, as is shown by the personally written apology letter to the Court, and the expression of apologies to the judicial officer and his wife for the disturbance caused to them by his acts.  Reference is made to the mitigating letters in support of his generally good character, and the view that the contempt was committed under the influence of the Internet and out of impulse.  Reference is also made by Mr Yip to the report prepared by Project Change, the conclusion of which is that the Defendant could be facilitated to be a law-abiding individual, deserving of a chance by way of suspended sentence or other lenient sentence.

56.Mr Yip invites me to conclude that the Defendant’s breach was not “contumacious” or “contumelious”; as a 17-year-old student with ASD, the Defendant was immature and susceptible to the influence of others, but did not deliberately commit the breach to challenge the Court’s authority.  Further, the Court should sentence on the basis of the conduct of the Defendant himself (rather than the wider conduct directed by others at the judicial officer and his wife), and the Defendant does take full responsibility for his own action.

57.Mr Yip invites me to take account of the delay of more than one year in bringing the contempt proceedings in January 2022, following a breach in December 2020, which he says is particularly alarming in light of the Defendant’s solicitors’ two letters chasing progress of the contempt proceedings, to which no replies were ever received.

58.Lastly, Mr Yip asks me to take notice of the fact that the Defendant will still face the criminal proceedings, which currently stand adjourned until 18 November 2022.

J.       Sentence

59.There should be no doubt that any use of the private data to cause harassment of a judicial officer or his family is wholly unacceptable, and is an interference with the due administration of justice for the reasons I have already traversed.  Further, though I shall sentence the Defendant for the particular acts carried out by him, I think it must also be recognised that part of the problem of this kind of doxxing is that the individual actions of one person are almost inevitably merely part of the overall actions of many persons.  Indeed, the people who encourage and facilitate doxxing do so precisely to seek to encourage and facilitate many persons to join in.  That is part of the consequence of the speed of transmission of information on social media, to which I have made reference in previous judgements.

60.Therefore, some form of custodial sentence is inevitable, and there is no reason to depart from the stated usual starting point.

61.But I also accept that the Defendant’s actions were probably as a result of his own immaturity and personality, and in particular his ASD.  That is not to lessen culpability because he may not have intended the logical consequences of his actions; but it is to recognise his own particular circumstances at the time of the actions which constitute the breach and the contempt. 

62.I also note that of the various doxxing harassment directed at the judicial officer and his wife, the Defendant’s own acts were very much at the minor end of the scale of the acts overall.  Indeed, if not surrounded by other acts of other persons, and were it not directed against a judicial officer and his family, the 8 calls made in quick succession over the space of 9 minutes (which calls were mostly unanswered, and even when answered nothing was said) might be regarded as more of an annoying prank than real harassment.

63.Whilst the delay in bringing these contempt proceedings is unfortunate, not least when the Department of Justice were being pushed by the Defendant’s solicitors to explain progress, the delay was perhaps not so great as to weigh significantly in the balance.  I accept that time has moved on, and the general situation in society now is not what it was.  But the real feature arising from the delay is that it has allowed the Defendant to move on, and his personal situation now is not what it was.  As Mr Yip attractively put it, Hong Kong has turned over a new leaf and the Defendant has also turned the page.

64.Indeed, with the assistance from others which I have identified above, there is reason to believe that the Defendant’s future is brighter now than it might have looked in December 2020, or even in mid-2021.  I accept that, when confronted, he immediately recognised his wrongdoing, and that he is genuinely remorseful.  With the benefit of the assistance from others, he is able to better manage his own behaviour.  In essence, the Defendant seems to be obtaining now the kind of care and direction which has hitherto been so lacking from his life.  Further, as he has moved into adulthood, he has taken responsibility in other areas as well, including in caring for others (family and otherwise) and in his employment and financial affairs.

65.I have thought carefully about how to take into account the fact of the parallel criminal proceedings.  Of course, I can and do take into account the fact that the Defendant has had two sets of proceedings, with potentially two punishments, hanging over his head.  But the more difficult question is how to factor the possible outcome of the criminal proceedings into this sentencing exercise.  Whilst it would be possible for the Magistrate to know in the context of the criminal proceedings what sentence I will have passed in these contempt proceedings, I cannot know what the Magistrate might do after I have passed sentence in these proceedings, though I accept that the Magistrate would be able to take into account what I have done when deciding what it is right for him or her to do.

66.I explored with Mr Ho how I should take the criminal proceedings into account.  He referred me, on instructions, to Note 52/1/15 of the Hong Kong Civil Procedure 2022, which identifies the well-established principle that the jurisdiction of the court in contempt proceedings arises out of its inherent jurisdiction to enforce its own orders and is quite separate from any criminal proceedings, notwithstanding that they arise out of the same set of facts.  The Note goes on to say that since contempt proceedings should be dealt with swiftly and decisively, the Court should not generally adjourn the contempt proceedings until any pending criminal proceedings arising out of the same circumstances have been completed.  The invitation to read that Note, and its reference to the requirement for contempt proceedings to be dealt with “swiftly and decisively”, seems to me to be at odds with the time taken by the SJ in this case.

67.But, in any event, the reason why contempt proceedings are ordinarily dealt with first – with perhaps the criminal proceedings being stayed in the interim – is because experience suggests that proceedings in the criminal justice system are likely to require more extensive preparation and to prove more protracted than committal proceedings in the civil justice system: see, for example, Lomas v Parle [2004] 1 WLR 1642 at §49.  The same paragraph identifies the applications to commit should be issued promptly after the alleged breach and listed without delay.  That discipline would ensure that, if proved, the contempt would have been punished before any sentence in parallel criminal proceedings.

68.But, even then, what is envisaged is the ordinary situation where the criminal proceedings are truly separate from the civil proceedings, in the sense that the criminal proceedings are brought by the prosecuting authority of the state against the individual, whilst the civil proceedings are between two private individuals, one of whom might be charged in the criminal courts.  That is a very different situation from the present situation.  Here, the prosecutor in the criminal proceedings and the plaintiff in these proceedings are the same, namely the SJ.  In both sets of proceedings, it may be said that the SJ is acting broadly in the public interest, and seeking to hold the Defendant to account and to be punished for acting in the same way on the same occasion.

69.Mr Ho has assured me that both as a matter of fact and as a matter of law, there can be no ‘double punishment’.  In those circumstances, it might be asked why two parallel sets of proceedings would be begun in any event.  Alternatively, it might be asked that if (for example, to avoid a limitation problem) proceedings are commenced in the criminal courts, but it is then decided to commence civil contempt proceedings, the criminal proceedings are not immediately dropped.

70.As I said during the hearing, for the SJ to pursue both criminal and civil contempt proceedings against an individual arising out of precisely the same circumstances might not give the right impression as regards the proper and fair administration of justice. Nevertheless, I proceed (as I must) on the assumption that there will indeed be no double punishment for the Defendant.

71.It seems to me that the appropriate sentence should mark the gravity of the breach, and the requirement that any similar breach be strongly deterred.  It must be made clear that doxxing and/or using the materials published through doxxing to harass judicial officers and their families will not be tolerated.  However, in that context, it is unfortunate – though it may be understandable for evidential reasons – that those who have committed more heinous acts have not been able to be charged or brought to contempt proceedings.  Thus, it seems to me to be wrong in principle that the Defendant should be treated more harshly so as to create a deterrent effect for others, simply because his case provides the only opportunity for the Court to expound deterrence.

72.In addition, the sentence must also be appropriate to the individual, and the individual circumstances of the contemnor both at the time of the contempt and now, some 22 or so months later.  Whilst I see no reason not to start from the position that this contempt should be sanctioned with an immediate custodial sentence, I am persuaded that a suspended sentence will be sufficient, appropriate and proportionate to the contempt and the overall circumstances.

73.In the overall circumstances, I think that sentence is a custodial sentence of 14 days, suspended for 12 months.

K.      Costs

74.As to costs, they are in the discretion of the Court.  But it is common ground that (a) the usual order of costs is one against the contemnor on an indemnity basis, and (b) the usual order can be departed from having considered the particular circumstances of the case, including the financial capacity of the contemnor and the overall proportionality.

75.I accept that the Defendant is young, comes from a humble background, is of limited means, and can only rely on himself financially through his own earnings.  Of course, the Defendant has been the recipient of a Legal Aid Certificate as from 3 May 2022, and that certificate will cover any adverse costs order against the Defendant from that date onwards.  Nevertheless, in my view, an indemnity costs order for the period before 3 May 2022 is almost certainly one which would, as Mr Yip submits, mean financial ruin and bankruptcy for the Defendant.  I do not think such consequences would be proportionate to the circumstances, and indeed they would be harmful to the prospects of the Defendant becoming a fully participating and responsible law-abiding member of society.

76.In those circumstances I accede to Mr Yip’s invitation to divide the costs order into two parts, being: (1) from the commencement of proceedings to 2 May 2022, the Defendant be required to make a contribution of HK$6,000; and (2) from 3 May 2022 onwards, costs be to the Plaintiff on an indemnity basis, which I summarily assess in the sum of HK$81,800.

Mr Martin Ho, instructed by the Department of Justice, and Mr Andrew Tong, Government Counsel, of the Department of Justice, for the plaintiff

Mr Richard Yip and Mr Jason Ko, instructed by Tang, Wong & Chow, assigned by Director of Legal Aid, for the defendant (save that Mr Ko acted on pro bono basis)