Secretary for Justice v. So Yat Kai

HCMP 351/2023

[2023] HKCFI 1932

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 351 OF 2023

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JUDGMENT

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1.This is the sentencing hearing for the Defendant’s criminal contempt of court.

2.As a high level summary, on 4 separate occasions which took place from 8 to 22 December 2021, the Defendant attended court hearings as a member of the public and intentionally interrupted, disrupted, and/or obstructed those criminal proceedings[1].

3.The 4 sets of criminal proceedings involved charges relating to: (1) acts and activities endangering national security; and (2) acts and activities taking place in the midst of the social unrests in 2019.

4.The Defendant’s actions, which interfered with and/or impeded the due administration of justice, constituted criminal contempt of court. On 6 March 2023, the Secretary for Justice (“SJ”) applied for leave to commence committal proceedings against the Defendant. By an order dated 9 March 2023, this Court granted leave for committal.

5.By an Acknowledgement of Service filed on 6 April 2023, the Defendant indicated that he does not intend to contest liability for his contempt of court.

6.Helpfully, a Statement of Admitted Facts (“Statement”) signed by both sides was filed on 14 July 2023 to assist the Court with the sentencing in this case. According to the Statement, it is accepted by the Defendant that on the 4 occasions in question he conducted himself in a manner which, objectively and collectively viewed: (a) interfered with or impeded the due administration of justice; and (b) was intended to so interfere with or impede the due administration of justice.

Incident 1

7.The first of the 4 occasions related to the hearing of a magistracy appeal in HCMA 340/2020 on 8 December 2021, which involved charges relating to the possession of offensive weapons, prohibited weapons and imitation firearms within the proximity of the Disciplined Services Quarters in August 2019. Those Quarters were targeted by protestors during the social unrests in 2019.

8.In summary, at around 9:50 am, prior to the commencement of the hearing, a woman in the public gallery was found by security guards to be wearing a black hoodie with a “yellow umbrella” symbol which was commonly used to signify mass protests in Hong Kong in recent years. One of the security guards reported the matter to the presiding judge, Mr Justice Alex Lee. The Judge ordered the woman to take off the black hoodie, otherwise she would have to leave the courtroom and watch live streaming of the proceedings outside the courtroom.

9.The woman complied with the direction of the Court, removed her hoodie, and remained at the public gallery. After the hearing commenced, at around 11:28 am, the woman left the courtroom and handed her hoodie to the Defendant outside the courtroom.

10.Thereafter, wearing the hoodie, the Defendant tried to enter the courtroom. Security guards tried to stop him, informing him of the directions of A Lee J and asked him to watch live streaming outside the courtroom. The Defendant became agitated and forced his way into the courtroom. During the commotion, the Defendant forcefully opened the courtroom door which struck and injured the arm of a security guard standing nearby (“Cheng”).

11.At about 11:38 am, the Defendant successfully entered the courtroom when the hearing was in progress. The Defendant sought to clarify with the Judge whether it was the Court’s order banning the wearing of the hoodie. The hearing was put to an abrupt stop. The Judge immediately ordered the Defendant to leave the courtroom, but the Defendant did not comply. As a result, the Judge adjourned the proceedings. The Defendant left the courtroom at about 11:41 am. The proceedings only resumed after the Defendant was escorted away by the police to a different floor of the court building.

12.Later that day, the Defendant was arrested for common assault over the injury of Cheng. However, the case did not proceed because Cheng believed that the Defendant had no intention to injure her and her injury was not serious.

Incident 2

13.It related to the hearing of a bail application in HCCP 678/2021 on 17 December 2021. The underlying charge was an offence under the National Security Law[2] (“NSL”) for collusion with a foreign country and external elements to endanger national security.

14.On that occasion, the Defendant wore a black hoodie with a “yellow umbrella” symbol (“Symbol”), a jacket covering the hoodie, a black cap and a black face mask. There were two other individuals (“2 Persons”) in the public gallery who were wearing yellow face masks.

15.The hearing was to commence at 10:30 am. At around 10:23 am, a security guard noticed the attire of the Defendant and those of the 2 Persons, and reported the matter to the judicial clerk of the presiding judge, Madam Justice Toh. Subsequently, Toh J (in her chambers) ordered that those at the public gallery must not wear caps or yellow face masks. The order was conveyed to the Defendant and the 2 Persons. The Defendant then produced a medical certificate and claimed that he had medical reason(s) to wear a cap.

16.Having considered the clerk’s report in chambers, the Judge allowed the Defendant to wear his cap, but maintained the order that those wearing yellow face masks should change their attire or leave the courtroom. The 2 Persons refused to comply with the order and continued to remonstrate with the security guards.

17.At about 10:58 am, upon the request of Judge, the Chief Bailiff and his colleagues attended court and requested the Defendant and the 2 Persons to change their attire (by that time the Defendant had removed his jacket and the Symbol on his hoodie could be seen) or watch live streaming outside the courtroom. The three refused and continued to dispute the Judge’s order. Eventually, at about 11:08 am, the Defendant and the 2 Persons left the courtroom upon the request of the defence lawyers.

18.The court proceedings, originally scheduled for 10:30am, only began at about 11:13 am.

Incident 3

19.This related to the hearing of a bail application in HCCP 675/2021 on 21 December 2021. The underlying charge was an offence under the NSL for conspiracy to commit subversion.

20.The Defendant was present at the hearing sitting at the public gallery wearing a black face mask, a black hoodie with a black jacket on top, a pair of black trousers and black shoes.

21.At about 11 am when the proceedings were ongoing, the Defendant took out a black cap from his bag and put it on. One of the security guards recognised the Defendant and asked him to remove the black cap. The Defendant then produced a medical certificate and asked for an exemption in light of his medical condition.

22.The presiding judge, Toh J, stopped the proceedings and told the Defendant that “if you now possess a medical certificate, you would be allowed to wear the cap and therefore there is no privacy. I need to take down the details of the medical certificate for the court record”. The Defendant refused to have the document photocopied for the court’s record. He claimed that to do so would violate his privacy.

23.In light of the Defendant’s refusal to allow a photocopy his medical certificate to be made, the Judge ordered the Defendant to leave the courtroom. The Defendant left the courtroom at about 11:08 am.

Incident 4

24.This related to the hearing of a bail review and plea-taking in WKCC 3632/2021 on 22 December 2021, which was scheduled for 3:30pm. The underlying charge was an offence under the NSL for incitement to subversion.

25.The Defendant was sitting in the public gallery wearing a dark-coloured long-sleeved top, trousers, black cap, glasses and black face mask.

26.Immediately before the hearing commenced, a security guard approached the Defendant and asked him to remove his cap. The Defendant took out a medical certificate and indicated that he had medical reason(s) to wear a cap. Another security guard reported the matter to the judicial clerk who in turn reported to the presiding magistrate, Principal Magistrate Mr Peter Law.

27.After the hearing commenced at about 3:46 pm, the Magistrate stopped the proceedings and enquired with the Defendant his reason for wearing a cap in the courtroom. In response, the Defendant submitted a medical certificate in support of his need to wear a cap. The Magistrate then asked whether the Defendant was the “Mr So” referred to in the certificate, whereupon the Defendant became agitated and disputed with the Magistrate that the latter should not have disclosed his surname in open court.

28.The Magistrate explained the court etiquette to the Defendant and allowed him to remain in the public gallery.

Applicable principles

29.I believe that the applicable principles had helpfully been summarized by A Lee J in Secretary for Justice v Chin Po Fun [2021] HKCFI 598, [15] :

“(1) as a superior court of record, 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) a criminal contempt is engaged where there is a serious interference with the due administration of justice. The offenders are punished, not for protecting the dignity of judges, but for the sake of public interest;

(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;

(4) the Court has a wide discretion, under common law and the Rules of the High Court (“RHC”) as to the sanction to be imposed for contempt, ranging from a fine to a term of imprisonment (including suspended sentence). The Court may impose fines with sentences of imprisonment. 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;

(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;

(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;

(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.”

Personal circumstances of the Defendant

30.The Defendant is now 53 years old. He was born and raised in Hong Kong. He graduated with a bachelor degree in accountancy at the Hong Kong Polytechnic in 1992. He joined the Trade Officer Grade of the Civil Service as an Assistant Trade Officer II in 1995, and served as a civil servant for over 27 years.

31.The Defendant is the sole breadwinner of his family. He has a partner and two children, aged 11 and 14. He also provides for his parents, aged 72 and 80.

32.The Defendant contributed to the Government initiatives in combating COVID-19 by volunteering to provide services in isolation facilities, for which he had received a Certificate of Appreciation from the Chief Secretary dated November 2020.

33.Due to police investigation and subsequent conviction on his own plea of a charge of obstructing a police officer, the Defendant was interdicted from duties with effect from 21 July 2021 and later dismissed from the Civil Service on 31 May 2023. He is not in employment now.

34.At the time of the 4 Incidents in December 2021, the Defendant was suffering from both psychiatric and medical conditions.

35.The Defendant first consulted the Western Psychiatric Centre (“WPC”) in February 2011. He was troubled by irritability for 2 years and had other mental conditions. He was diagnosed with a depressive episode and was prescribed antidepressant and hypnotics.

36.The Defendant failed to attend follow-up appointments since 2014 until 2018 when he attended the WPC again. He was suffering from “low mood, irritability and prone to temper outburst”. He was diagnosed with recurrent depressive disorder and restarted on antidepressant, with referral to medical social worker and clinical psychologist. In light of the foregoing, I accept the evidence of the Defendant that his mental conditions worsened as a result of his interdiction from duties since July 2021. He had emotional swings and anger outbursts.

37.The Defendant also attended a government clinic on 1 December 2021, and he was diagnosed with multiple nodular cystic lesions over his right parietal scalp and forehead. Central ulceration in lesions over forehead was noted. The Defendant had a skin biopsy over his right forehead on 31 December 2021. The result showed angiolymphoid hyperplasia with eosinophilia. The Defendant was subsequently offered excision with grafting by the surgical team. He decided on further observation. His condition, including other dermatological conditions, remained stable on follow-ups. He was last seen by the clinic on 22 March 2023 with discoid eczema over the left elbow, left dorsal foot and both legs.

38.Given the evidence on his demonological conditions, I also accept the Defendant’s evidence that he felt ashamed and was anxious to cover his head. He became easily irritated when his skin conditions were revealed to others.

Mitigation

39.On behalf of the Defendant, Mr Ko submitted that it was against the above background that the Defendant conducted himself inappropriately during the 4 Incidents in December 2021. What happened was entirely out of character of the Defendant, for which he is genuine remorseful :

(1)  The Defendant indicated that he would not contest liability in these proceedings at the earliest available opportunity when he filed the Acknowledgement of Service on 6 April 2023;

(2)  He had personally written an apology letter, tendering his unreserved apology to the Court, to all the judicial officers and supporting staff involved, as well as to Cheng who was injured during Incident 1. The Defendant had no intention to affront the authority of the Court, and he is prepared to take full responsibility for his actions. He had ceased to attend court hearings, and had refrained from engaging in any activities which could possibly be seen as constituting interference with the due administration of justice;

(3)  The Defendant’s good character and genuine remorse could also be seen in his sister’s mitigation letter. He had contributed to the family both financially and on household chores and repairs. He had told his sister that he was very guilty for what he had done in Court.

40.The Defendant is the breadwinner of his family. He is responsible for rent, education expenses of the children, utilities and other household expenses totalling around HK$40,000 per month, in addition to the monthly contribution to his parents (the amount of which has not been provided).

41.With his dismissal from civil service, the Defendant had lost his income and all the benefits as a civil servant, including his pension, after serving the government for 27 years.

42.In light of the Defendant’s age (53) and his criminal record, it would be difficult for him to find another job, let alone a job with an income comparable to what he used to earn. The Defendant’s children are still young (11 and 14). They would require the Defendant’s financial support for many years to come.

43.In these circumstances, the Defendant pleads for the Court’s leniency and to suspend any sentence of imprisonment which may be imposed on him.

Deliberation

44.Time and again, the Court held that interfering with the administration of justice is a very serious matter, and one which normally attracts an immediate custodian sentence: see Secretary for Justice v Wong Chi Fung (Criminal Contempt) [2019] 2 HKLRD 1236, [3], [21]-[25], per Poon JA (as he then was).

45.Incident 1 was the most serious of the 4, even though this Court accepts that the Defendant did not intend to cause any injury to anyone. On the other hand, the Defendant was trying to force his way into the courtroom. There was clearly a risk that someone might be injured in the course of the commotion, eg, losing one’s balance and fell.

46.Further, there is some evidence that the Defendant was acting in concert with the woman who handed him the hoodie. I see no explanation for such act unless there was a prior understanding to that effect. On the other hand, there is no evidence on what was agreed between the two of them save for the handing over the garment so that it could continue to be worn in the courtroom. It could have been an ad hoc arrangement agreed shortly before the hearing. The Defendant should have the benefit of doubt in this regard.

47.Incident 2 was also serious. By that time, the Defendant clearly knew that the hoodie he was wearing was not acceptable in the courtroom. It bore a political symbol which had no place in a courtroom. The jacket he worn on top of the hoodie should not have been taken off if the Defendant wanted to remain in court. The Defendant’s refusal to accept the invitation to change his attire or watch the proceedings by live streaming outside the courtroom was plainly designed to interrupt the proceedings. It was fortunate that the intervention of defence lawyers had shortened the interruption.

48.I accept that Incidents 3 and 4 were relatively less serious. That said, by the time of Incident 3 the Defendant knew that it was an exception to wear a cap in court. Indeed, he had a medical certificate with him to justify the exception. His refusal to produce the certificate to the Court was plainly unacceptable. However, to his credit, he did comply with the order to leave the courtroom.

49.The gravamen of Incident 4 is that the Defendant, knowing that the Court would require proper justification to allow him to wear a cap in the courtroom, disputed with the Magistrate when he was asked to confirm whether he was the person referred to in the certificate he produced. Plainly, the Court had to be satisfied that the document provided to it was one issued to the Defendant. The Defendant’s action was quite unreasonable and reflected his intention to interfere with the proceedings.

50.On the other hand, there are strong mitigating factors before the Court. Coming from a modest background, the Defendant was a good son and brother to his sister, who regarded him as a role model. No doubt he was a hard working student and duly obtained his degree in accountancy. Until recent events, he had led a responsible life, obtaining a good job with the Government and raised a family with 2 children (of which the Defendant is the sole breadwinner).

51.The Defendant had been suffering from depression since 2011. Plainly, his mental conditions were worsened as a result of the interdiction from duties in July 2021. Although the evidence suggests that the Defendant only sought medical assistance for his dermatological conditions not long before Incident 1, based on his symptoms it is quite likely that he had been suffering from such conditions for some time. Dermatological conditions could be aggravated by stress. The Defendant was probably in a situation where both his depression and dermatological conditions deteriorated as a result of the interdiction. I accept that, with the extent of his dermatological conditions, the Defendant was sensitive to having them noticed by other people.

52.Hong Kong was affected by public order events in December 2021. Given the circumstances of the Defendant, interdicted and thrown off balance with his life, as well as suffering from worsening depression, he was vulnerable to acting out of character. The 4 Incidents took place within a period of 2 weeks. I believe that the Defendant was acting out of character in circumstances which were very challenging for him during that short period of time (on 4 occasions).

53.The Defendant’s handwritten letter of mitigation reflects an educated man who is remorseful for what he had done. It is a moving letter which shows genuine remorse (reflected also by his acceptance of liability at the earliest opportunity) and anguish about what lies ahead for him and his family. The chances of reoffending by the Defendant are not significant.

Sentence

54.In these circumstances, it is a hard task for the Court to determine what is the just sentence, reflecting the gravity of the contempt. In my view, the seriousness of these matters deserves a total sentence of 2 months’ imprisonment – 2 months for each of Incident 1 and Incident 2, 1 month for each of Incident 3 and Incident 4 and all sentences to run concurrently.

55.However, this is a rare case where the Court should exercise its discretion to temper justice with mercy. I order that the sentence of 2 months should be suspended for 2 years on the conditions that during the period of suspension the Defendant must not commit any acts of criminal contempt or any criminal offences punishable with imprisonment, failing compliance he would be brought back to Court and the aforesaid prison sentence would be activated. The long period of suspension serves to ensure that the Defendant will keep to the correct path.

56.In suspending the sentence, I bear in mind that it is clearly right for the court to make a costs order against the Defendant in respect of the costs of these proceedings. The indemnity costs sought by the SJ total HK$310,955.

Costs

57.The relevant principles can be found in Secretary for Justice v Wong Chi Fung [2023] HKCFI 1023, [87] :

“As to costs, I acknowledge that the usual order in a successful committal procedure is for costs to follow the event and to be payable by the person found guilty of contempt on an indemnity basis. Nevertheless, as has been pointed out in other cases, in appropriate cases it may be correct to order payment of a contribution only, rather than a full indemnity, to reflect the appropriate degree of proportionality when the penalty and costs can be regarded as composite elements of the proceedings’ impact on a defendant. Each case will be determined on its own particular facts and circumstances. I accept that there is no presumption of indemnity costs in contempt proceedings.”

58.The evidence is that the Defendant owns a residential property worth about HK$6.48 million. The Court was informed that it is a property acquired under the Sandwich Class Housing Scheme operated by the Hong Kong Housing Society, and the disposal of this property would require payment of land premium by the Defendant. The Defendant’s mother, who is separated from the Defendant’s father, resides in that property. It is right for the SJ to have pointed out that the Defendant had not in his evidence set out his financial circumstances in full. On the other hand, the loss of the Defendant’s job with the Government had disastrous financial consequences for him. I also take into consideration his financial obligations to his young family and his elderly parents.

59.Taking all relevant matters into consideration, there is no sufficient reason to depart from the usual costs order. I order that the costs of these proceedings are to be paid by the Defendant to the SJ on indemnity basis. On summary assessment, I allow the sum claim (HK$310,955) in full. I accede in part to the Defendant’s request for time to pay such costs. The costs are to be paid by the Defendant to the SJ within 2 months from today.

60.I am grateful to counsel for their assistance.

Mr Martin Ho, instructed by Secretary for Justice, for the Plaintiff

Mr Jason Ko, instructed by Tang, Wong & Chow, for the Defendant