Secretary for Justice v. Persons Conducting Themselves in Any of the Acts Prohibited Under Paragraph 1(A), (B), (C) or (D) of the Indorsement of Claim

HCA 855/2023

[2023] HKCFI 2148

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 855 OF 2023

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D E C I S I O N

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1.This is the SJ’s Summons filed on 7 August 2023 for leave to appeal against the Decision of this Court dated 28 July 2023 ([2023] HKCFI 1950) by which the SJ’s application for interlocutory injunction was declined. The nomenclature used in the Decision is herein adopted.

2.Given the nature of this application, namely, if leave is granted the issue(s) will be fully ventilated in the Court of Appeal (“CA”) and if not granted, the SJ may renew its application before the CA, this decision should be kept succinct.

3.The test to be satisfied for the present purpose is prescribed by s.14AA(4) of the High Court Ordinance, Cap 4 (“Ordinance”): (a) the appeal has a reasonable prospect of success or (b) there is some other reason in the interests of justice why the appeal should be heard.

4.In the Submissions dated 14 August 2023 lodged by the SJ in support of this application, the interests of justice limb (“2^nd Limb”) was given prominence. With the aid of the Submissions, it is appropriate to deal with this application on paper.

5.The draft Notice of Appeal contains 7 grounds of appeal set out in 19 pages. Each but one of the Grounds is elaborated in a number of sub-paragraphs. It is fair to say that little of the Decision is left unchallenged.

6.Further, it is evident from the Grounds that the SJ is seeking to recast much of the arguments made at the hearing on 21 July 2023 (“Hearing”). However, due to the importance of national security, the law on which is of course a new frontier, I am inclined to grant leave where it can be said that the points are matters of law.

7.Before turning to the Grounds, it should be said that the grant of an interlocutory injunction is a matter of discretion of the Court. That was accepted by the SJ at the Hearing (see Decision, [41] and [46]) and in the Submissions. It is trite that there is a high threshold to be satisfied before the CA would overturn an exercise of discretion by the Court below.

Ground 1

8.In respect of Grounds 1, the real point is made in sub-para (2). It appears that the SJ is endeavouring to argue that matters of national security are to be accorded such weight that the scope for judicial discretion on such matters is extremely limited (if it exists). For the reasons alluded to in para 6 above, I take the view that the 2^nd Limb is engaged, and I grant leave on this Ground.

Ground 2

9.Ground 2 deals with the test to be applied for interlocutory injunction in aid of criminal law for safeguarding national security. The key point is made in sub-para (2) – unless the Court considers that the Injunction would not have any effect … the balance should be in favour of granting the Injunction.

10.Ground 2 made no mention how the test sits with the fact that it was very unlikely that the Injunction Application would be opposed (Decision, [43]). However, it can be said that it engages matters of law, and for which I grant leave.

Ground 3

11.With respect, it appears that Ground 3 contains a conflation between: (a) the proposition that the 4 Acts constitute crimes against national security; and (b) whether the Court should exercise its jurisdiction to grant the Injunction (Decision, [9]). The former was accepted by this Court even without the Chief Executive certificate (Decision, [45]).

12.The issue of utility of the Injunction was a matter which the Court had to consider in deciding whether it should be granted. It was not suggested at the Hearing that the certificate would assist the Court in the discretionary exercise[1].

13.Despite very careful consideration of the entirety of Ground 3, it is not clear why it can be said that the Court was not in a proper position to assess the utility of the Injunction when the acts prohibited were criminal and the proof of contempt arising from any breach of the Injunction would require establishing the commission of criminal act(s) (Decision, [54], [59]-[61]).

14.On the other hand, it appears from the Submissions that it is contended by the SJ that the existence of the certificate from the Chief Executive was almost conclusive (if not conclusive) on the issue of utility of the Injunction. For the reasons alluded to in para 6 above, I grant leave on Ground 3.

Ground 4

15.With respect, it is difficult to understand the contention in Ground 4 that the Court had failed to consider various matters when almost each of these matters was set out in the Decision. The exercise of discretion by the Court did not turn upon minute analysis of all the possibilities if the Injunction was or was not granted. Further, as a matter of law, the CA would have regard to the generous ambit within which reasonable disagreement is possible.

16.Sub-paras (3) and (4) are new arguments. It was said on behalf of the SJ at the Hearing that entrenched offenders would have to be sought out by the police.

17.In respect of sub-para (7), it was not clear from para 74 of the affidavit of Superintendent Wong, which should be read as part of a section from paras 72 to 75, that the “contents” were the misrepresentation of the Song as the national anthem.

18.Further, the submissions made by Mr Chan SC on behalf of the amici demonstrated that they had the same understanding as this Court on “contents”. No attempt was made on behalf of the SJ at the Hearing to suggest that the understanding was erroneous.

19.Furthermore, assuming that “contents” had the meaning suggested in sub-para (7) of Ground 4, it is unclear how para 1(b) of the Injunction would serve the purpose of “a valid court order demonstrating that the relevant contents’ violation of Hong Kong law”[2]. Para 1(b) would not render the misrepresentation per se a crime or a breach of the Injunction. The enjoined action had to be one carried out “with intent to insult the national anthem”.

20.However, it is quite clear that the sub-para (7) issue was a main (if not the primary) driver for the Injunction Application. I grant leave on Ground 4(7) pursuant to the 2^nd Limb, but not the remainder of that Ground.

Ground 5

21.In respect of Ground 5, notwithstanding that there was no submission by the SJ at the Hearing that the risk of conflict between the enforcement of the Injunction and the criminal law regime was irrelevant for the Court’s discretionary exercise, it raises legal issues and for which I grant leave.

Ground 6

22.Ground 6 contends that separate consideration should have been given by the Court for granting an Injunction which only covered para 1(b)[3]. There was no such application made at the Hearing. It was not the function of the Court to carry out a blue-pencil excise for an applicant, especially when there was no respondent before the Court. I decline to grant leave on Ground 6.

Ground 7

23.Ground 7 seeks to ask the CA to exercise its discretion to grant the Injunction in the event that this Court was wrong in not doing so. It does not appear to be a matter requiring the leave of this Court. However, Ground 7 goes on to challenge this Court’s finding on “chilling effects” even though this Court concluded that such effects would not have inhibited the granting of the Injunction had this Court been satisfied that there was real utility and no conflict with the criminal laws in granting the Injunction (Decision, [82]-[83]).

24.With respect, I am unable to agree that it is reasonably arguable that this Court’s finding on chilling effects is “plainly wrong and unsustainable”[4]. The Court must take a realistic view on the likely effect of the Injunction. I decline to grant leave in respect of the challenge to the said finding. In simple terms, Ground 7 should be amended by deletion starting with the sentence “In doing so ...” to the end.

Disposition

25.In conclusion, I grant leave to appeal on Grounds 1, 2, 3, 4(7), 5 and part of 7 (insofar as leave is required).

Mr Benjamin Yu SC, Mr Jonathan Chang SC and Ms Leona Cheung PGC, instructed by Secretary for Justice, for the Plaintiff