Secretary for Justice v. Wong Chi Fung
Read the full judgment text of HCMP 585/2022 on BabelCite. This High Court CFI judgment was delivered on 24 November 2022.
1. At some point, a line needs to be drawn under past events. However, when and where to draw the line is not always straightforward.
Cites 15 cases
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HCMP 585/2022 [2022] HKCFI 3522 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO. 585 OF 2022 ________________________
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________________________ AND HCMP 586/2022 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO. 586 OF 2022 ________________________
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________________________ HCMP 587/2022 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO. 587 OF 2022 ________________________
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________________________ HCMP 664/2022 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO. 664 OF 2022 ________________________
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________________________ (Heard together) Before: Hon Coleman J in Court Date of Hearing: 21 November 2022 Date of Decision: 24 November 2022 _________________ D E C I S I O N _________________ A. Introduction 1.At some point, a line needs to be drawn under past events. However, when and where to draw the line is not always straightforward. 2.Each of these four actions involves an ex parte application made by the Secretary for Justice (“SJ”) for leave to apply for committal against each of the putative respondents for their alleged contempt of court. 3.Ordinarily, such applications would be dealt with on paper. However, for reasons which I will set out below – primarily relating to the timing of the applications by reference to the events constituting the alleged contempt – I was not prepared to grant leave on paper, and instead directed the applications to be made together at an oral hearing. 4.That oral hearing was fixed for 21 November 2022, when Mr Martin Ho of Counsel appeared for the SJ. At the end of the hearing, I reserved my decision to be handed down later. 5.This is my Decision. B. Relevant Background 6.All four applications relate to alleged breaches of an injunction order granted by Chow J (as Chow JA then was) on 25 October 2019, as amended on 28 and 31 October 2019, as continued and varied by me on 8 November 2019 and amended on 11 December 2019 (“Police Doxxing Injunction”), made in an underlying civil action HCA 1957/2019. 7.Three of the four actions also relate to alleged breaches of an anonymity order granted by the Principal Magistrate on 2 June 2020 (“Anonymity Order”), made in underlying criminal proceedings WKCC 1553/2020. The Anonymity Order was made to protect the interests of the public and a police officer (“PW1”) and his wife and two daughters, and it prohibited all persons from publishing or reporting any matters that may lead the public to identify PW1, his wife and two daughters. PW1 had been involved in an incident on 11 November 2019, when police were dispersing protesters causing serious traffic disruption in the Sai Wan Ho area. PW1 fired three live rounds, with one shot hitting a masked protester (“Sai Wan Ho Incident”). 8.The allegations of contempt in the four actions are in broad summary as follows:
9.From the above, it can be seen that the Police had concluded the bulk, if not the entirety, of the relevant investigations as revealed the facts now relied upon in support of the current applications:
10.As is obvious from the action numbers, three of the four applications are numbered consecutively – HCAL 585/2022, HCAL 586/2022 and HCAL 587/2022 – with all three of them having been dated 11 May 2022 but issued on 13 May 2022. The fourth action – HCAL 664/2022 – was issued on 25 May 2022. Therefore, the time from the above dates when the facts now relied upon had probably been established until the making of the ex parte application seeking leave to apply for committal is:
11.It may also be relevant to note that in three prior decisions given by me on 18 January 2022 [2022] HKCFI 227, 14 April 2022 [2022] HKCFI 1015 and 27 April 2022 [2022] HKCFI 191, I expressed and repeated real concerns about the long periods of delay in bringing the relevant breaches of Court orders to the attention of the Court in the delayed making of applications for committal for contempt of court. 12.It can be noted that three of the ex parte applications in the current proceedings were all suddenly made within about two weeks, and the fourth within one month, of that last decision and expression of concern. C. Principles on Grant of Leave 13.The leave requirement operates as a filtering mechanism, to filter out intended committal applications which are obviously unfounded or oppressive. When disposing of a leave application, the Court retains an overall discretion in deciding whether or not a committal application is appropriate on the facts of the case. This is not least because, in view of the potential penal consequences, committal proceedings should only be deployed as a last resort: see, for example, SJ v Cheung Kai Yin (No.2) [2016] 5 HKLRD 370 at §§12-13 14.The question arises as to how any delay in bringing intended committal proceedings factors, if at all, into the decision whether or not to grant leave. 15.Mr Ho acknowledged the remarks made by me in the previous cases, to which I have already made reference above. For example, in SJ v Sung Ho Tak Edward [2022] HKCFI 227, at §§ 27-30, I said:
16.I stand by the points I made in that context, and which are at least potentially applicable to the present situation. 17.But Mr Ho also pointed to Note 52/2/5 in the Hong Kong Civil Procedure 2023, which states:
18.Mr Ho submitted that two matters arise from that passage:
19.The passage in Taylor at 408 seems to me to identify that the overriding power of the Court should be used to protect the integrity of its own processes. Obviously, it is an important part of the protection of the integrity of its process that those in contempt of court by breaching court orders should be held to account. But another part of the protection of the integrity of the process is to protect against the use of the process in a way which is unfair to a party to the proceedings. 20.I accept that the inability to have a fair trial because of unjustifiable delay may, in exceptional circumstances, be one situation where the power to stop the case would be exercised. It may even be correct to say that the power would be very sparingly exercised. But it is not the only situation when the power might or would be exercised. 21.In my view, if the Court takes the view that its process is being used in a way which threatens its integrity, the Court is entitled to take steps to protect that integrity – and those steps are not limited only to the situation where a fair trial is no longer possible. The Courts are the guardian of proper process. The Courts are independent, must continue to be independent, and must continue to be seen as independent. 22.In this context, reference can also be made to the case of Tiong King Sing v Sam Boon Peng Yee (No.2) [2015] 3 HKLRD 99 at §§6 and 19, which emphasised that the filtering process on the grant or refusal of leave can arise when there is either (a) oppression or (b) suspicion of oppression. It is to be noted that the suspicion of oppression may suffice for the refusal of leave to apply for committal. For example, though the phrase was also repeated at §19, at §6 the Court stated (quotation in original):
23.Further, in Hwang Joon Sang v Golden Electronics Inc (No.3) [2021] HKLRD 301, at §11(5)(b), I noted that a significant period of delay in bringing proceedings for contempt may make it oppressive to grant leave. D. Reason for Delay 24.In his written submissions, Mr Ho remarked that “the SJ acknowledges that these intended committal applications could have been brought earlier”. I suspect that many people would think the words “could have been brought earlier” to be a striking euphemism. 25.Further, it was obvious that the Court’s concern giving rise to refusal to deal with these applications on paper, and instead calling for an oral hearing, related to the question of delay. As a result, Mr Ho used more than half of his 16-page skeleton submissions to address the impact of delay. 26.Notwithstanding that, the submissions were essentially by reference to legal authorities – and to the suggestion that the Court should accord appropriate recognition and weight to the SJ’s views and assessment on the societal need for deterrence (a point to which I will return). 27.However, the only factual matter dealt with as might in any way be thought as an offered explanation for the significant delay is to be found in a footnote to the euphemistic acknowledgement (see above). That footnote merely reads as follows:
28.As a factual explanation for the significant delay, it is at best underwhelming. The first sentence in essence says merely that the DOJ has been busy, but it does not provide any relevant detail nor attempt to explain why it took approaching two years to bring forward even any one of the individual four cases now being considered. The second sentence does not explain the delay at all. 29.What the second sentence instead appears designed to achieve is to ‘head off’ some other potential concern. I raised one such concern ‘head on’ with Mr Ho at the hearing, namely any perception that these potential committal proceedings might have been ‘sat on’ – or even ‘warehoused’ – ready to be brought forward later, if at some time it was thought appropriate to bring proceedings against the particular individuals concerned. The answer to such a concern is not to be found in a statement that only the merits were taken into account in deciding to launch the committal proceedings, as that simply does not address why those merits did not lead to the much earlier launch of the committal proceedings. It seems to me that once sufficient merit has been identified, the proceedings should be launched – without delay. 30.Indeed, the more Mr Ho sought to emphasise his main points as to why, notwithstanding the significant delay, leave for committal proceedings should be granted, the more the possible perception and consequent concern seemed to be highlighted. 31.Mr Ho first submitted that the individual merits of each intended application are strong, if not overwhelming. Elsewhere in his written submissions, Mr Ho submitted that there is “overwhelming evidence against the putative respondents (some of which having openly acknowledged that they are intentionally flouting court orders)”. But, assuming that is the SJ’s view, it might be asked why such strong applications were not brought to the Court with reasonable speed. It is the SJ’s case that this was clear, deliberate and intentional flouting of the court orders. Indeed, at least some of the putative respondents to these four applications are known individuals who sought to carry significant influence in their expressions of views, and who sought to create a tide of opinion. It might be thought that the DOJ’s resources would obviously be directed at bringing such strong applications to the fore, rather than focusing on applications relating to others who were swept up in that tide. 32.Mr Ho also submitted that the SJ, in his capacity as the protector of public interest, is of the clear view that there remains a strong public interest in pursuing these committal applications and to send a clear deterrent signal to society. But surely the most important time for sending any such clear message was much closer to the events for which a deterrent signal was required, and for which it might be most effective. 33.Mr Ho also submitted that contempt of civil court orders is a serious matter, where the consideration of the normal penalty for breaches of the Police Doxxing Injunction is imprisonment, perhaps measured in months. He submitted that refusing to grant leave notwithstanding that there is a prima facie case may send the wrong message to the public that such conduct can be condoned without legal consequence, and is unfair. But, on the other hand, it seems to me that the SJ’s failure to seek, or significant delay in seeking, leave notwithstanding that there is a prima facie case – indeed, it is said an overwhelming case – may send the wrong message to the public. 34.Mr Ho also submitted that the Court should adopt a consistent approach in dealing with delay, referring to the previous cases in which the matter of delay was reflected in sentencing (rather than being used as a basis for the Court to exercise its discretion to refuse leave). I see the force in the need for consistency in approach, but the submission risks overlooking the fact that time has continued to move on, and that at some point a line needs to be drawn. 35.Mr Ho also submitted that, while the delay is unfortunate, the applications cannot be regarded as “oppressive” to the putative respondents. He said that the applications hardly constitute an abuse of the Court process, and there is no suggestion that any of the putative respondents are hampered in their efforts to defend these proceedings by reason of the lapse of time. But, it seems to me that if applications are not brought forward with appropriate expedition, that might constitute an abuse. Further, it is at this stage simply unknown whether any of the putative respondents are hampered in their efforts to defend these proceedings by reason of the lapse of time. In any event, even if there is no hampering in the sense of being unable to obtain relevant materials and so forth, that does not necessarily mean that there is no oppression which arises from the timing. 36.The significant delay in these cases is also exacerbated by the fact that it is generally recognised that committal proceedings in the civil justice system require less extensive preparation, and are less protracted than, proceedings in the criminal justice system. That is why applications for committal can reasonably be expected to be, and should be, issued promptly after the alleged breach, and the cases listed without delay: see, for example, Lomas v Parle [2004] 1 WLR 1642 at §49; and the Taylor case at 410. 37.I am also not persuaded that the Courts are in any significantly weaker position than the SJ to assess various facets of the public interest. I acknowledge, of course, that the SJ is acting in his capacity as the guardian of the public interest in both seeking the underlying injunctive relief and pursuing committal applications against contempt laws who have breached the injunction is granted. But the injunctions were granted, and any penalties are imposed on contemnors, by the Courts’ recognition of and application of those facets of the public interest relevant to the situation. E. Result 38.In the light of the significant and almost wholly unexplained delay, I have carefully considered whether this is an occasion when leave to apply for committal should be refused. The concerns arising from the delay, and any perception also arising, are real. But, ultimately, I am persuaded that leave should be granted. 39.I accept that on the materials so far available to the Court, it could not be said that there is no prospect of the Court granting relief to the SJ at the substantive hearing. Nor could it be said that the delay itself will necessarily cause such prejudice to the putative respondents as should lead the Court to exercise its power to refuse leave for committal. The proper impact of the delay in these individual cases can, I think, be addressed appropriately on the substantive hearing. 40.I also take into account that the alleged breaches in these four applications, if admitted or proved, can properly be regarded as serious, and well within the category of breaches that the Courts would wish to ensure do not go unnoticed. 41.In conclusion, I grant leave to apply for committal in each of the four cases, and the accompanying directions including the anonymity orders sought. 42.All questions of costs are reserved. 43.I would only add that the grant of leave in these cases is not intended to suggest that leave would certainly be granted in other cases where there has been significant delay, or be taken to suggest that the time has not come for the line to be drawn.
Mr Martin Ho, instructed by the Department of Justice, for the applicants in all cases | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCMP 585/2022