Secretary for Justice v. Cheung Chi Ho

HCMP 598/2022

[2023] HKCFI 2099

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 598 OF 2022

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BETWEEN

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D E C I S I O N

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1.This is the first hearing of the originating summons dated 30 November 2022 for an order of committal against the defendant who is alleged to have breached an injunction order made by me seeking to prevent incitement of injury or harm to judicial officers. Leave to bring this application was previously granted by me.

2.In the absence of any response from the defendant, in circumstances to which I will return in a moment, I had also previously given leave for substituted service on the defendant by way of sending the various material to his last known e-mail address.  By reference to an affirmation of service filed, it seems that documents were sent to that address.  There has been no bounce-back and it seems at least highly probable that the documents were received by the defendant and that he therefore has had knowledge of the circumstances of this application and today’s date.

3.Now, I say today’s date.  The matter was originally fixed to be heard yesterday but it was automatically adjourned as a result of the arrangements which are put in place in circumstances of the typhoon signal number 8 which was raised and which prevented yesterday’s hearing from going ahead.

4.The injunction which I originally gave was first obtained ex-parte on 31 October 2019 and prevented persons unlawfully and wilfully conducting themselves in respect of a number of prohibited acts including wilfully disseminating, circulating, publishing or republishing on any internet-based platform or medium any material or information that promotes, encourages or incites the use or threat of violence, intended or likely to cause bodily injury to any person unlawfully within Hong Kong or damage to any property unlawfully within Hong Kong.  The grant of that ex-parte injunction was widely reported in the media.

5.On 15 November 2019, at an inter partes hearing, the injunction was continued inter partes, albeit with an amendment, so that it prevented or prohibited wilfully disseminating, circulating, publishing or republishing on any internet-based platform or medium any material or information for the purpose of promoting, encouraging, or inciting the use or threat of violence, intended or likely to cause bodily injury to any person unlawfully within Hong Kong or damage to any property unlawfully within Hong Kong as well as wilfully assisting, causing, counselling, procuring, instigating, inciting, aiding, abetting or authorising others to commit any of those aforesaid acts or participate in any of those aforesaid acts.  The inter partes continuation of the injunction was also widely reported in the media and substituted service of it was effected in accordance with the court’s directions.

6.On 3 December 2020, the Chief Magistrate’s Office received a phone call in which the caller threatened to kill the chief magistrate, his wife, and his son by a bomb.  That bomb threat was widely reported in the local media and generated significant social media activity.  The defendant posted two comments on his Facebook account which in effect were in breach of the injunction.

7.I do not need to deal with the comments in any great detail, save to say that on 5 December 2020, the defendant posted a comment which referred to the bomb threat, and it said (albeit in Chinese), “It is useless to talk.  Bomb the whole family to death.  Then there will be evidence.”  And later on the same day, a second comment was posted that there would only be evidence when the whole family is bombed to death.

8.The defendant was subsequent arrested in March 2021 and cautioned for the events of incitement to wound.  Under caution, he admitted that he posted the two comments, albeit he said he did it out of anger and/or impulse and that he did not actually intend to bomb the chief magistrate and his family to death.

9.The defendant has subsequently absconded from police bail, and it seems that he departed from Hong Kong via the Hong Kong International Airport on 28 September 2021.  At least as at 4 May 2022, there was no record that he returned to Hong Kong since the date of his departure.  Further, it seems that his mobile telephone number was terminated in October 2021 and his Facebook account became inaccessible as from 26 January 2022.

10.I am persuaded that it is appropriate in the circumstances of this case to deal with the matter, at least as to the question of any liability for the alleged contempt in the absence of the defendant.  I am also satisfied on the appropriate tests relating to the commission of a civil contempt of court that there is liability on the part of the defendant for contempt of the incitement injunction.

11.The two comments posted by the defendant were clearly in breach of that injunction and the acts were obviously intentional. It therefore seems to me that the appropriate way of dealing with matters this morning is to find the defendant liable for the contempt.

12.The question then arises as to what the court should do having found the defendant in contempt, but where he is not present. Mr Justin Lam, who appears for the Secretary for Justice this morning, correctly acknowledges that in the case of an absent defendant, the court would ordinarily issue a warrant for committal, to arrest the defendant and bring him before the court as soon as possible so that he may make submissions on penalty.

13.Mr Lam submitted that in the special circumstances of this case, given that the defendant has effectively absconded from the jurisdiction and seems unlikely to return, there may be no useful purpose for the issue of penalty to be further adjourned where the court nevertheless clearly has jurisdiction to proceed to sentencing in the absence of the defendant where circumstances so justify.

14.However, it seems to me that in the circumstances of this case, the appropriate thing to do is for me now to issue the warrant seeking the arrest of the defendant so that he can be brought before the court as soon as possible so that he may make submissions as to penalty.  But at the same time for me to set what might be regarded as a long stop date, so that the matter is not left open or in abeyance pending the effecting of the warrant of arrest, and for me to consider on that date whether it is by that date appropriate to go on to deal with the question of penalty even if the defendant continues to be absent.

15.Therefore, what I propose to do is to issue that warrant.  If arrested, the defendant will be brought before me as soon as possible in order to have the opportunity to make submissions as to penalty.  I will however set the date of 10 am on 14 August 2023 as the long stop date that I have mentioned for this matter to be brought back for further mention to me and for me consider on that occasion whether the circumstances, as they then appear, make it appropriate for me to go on to consider the question of penalty (in the circumstances, if they arise, that the defendant continues to be absent and has not been subject to arrest, to bring him back earlier and before this court).

16.It also seems to me to be appropriate where I have found the defendant guilty of civil contempt in breach in the incitement injunction to order the costs of the proceedings to date against him and to do so on the usual basis of costs on the indemnity scale.

17.Mr Lam, we will come back on 14 August, if not beforehand, and revisit the situation on that occasion.

Mr Justin Lam, instructed by the Department of Justice, for the plaintiff

The defendant was not represented and did not appear