Secretary for Justice v. Li Kwok Wing and Another

HCMP 2254/2020

[2024] HKCFI 2107

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2254 OF 2020

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JUDGMENT

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1.This was an application pursuant to leave granted on 14 December 2020, by the Secretary for Justice for the committal of the two defendants consequent upon events which occurred after the hearing of a Death Inquest (the Inquest) in the Coroner’s Court at the West Kowloon Law Courts Building. It was alleged by the Plaintiff that the conducts of the two Defendants amounted to criminal contempt of the court.

2.The relief sought in the originating summons against the 1^st and the 2^nd Defendants stated, among others, as follows:

(1)  That the 1^st and the 2^nd Defendants be committed to prison and / or fined for criminal contempt of this Honourable Court by interfering with witnesses in harassing, insulting and / or intimidating witnesses returning from an inquest of the Coroner’s Court. 

3.The grounds for the application stated, among others, as follows:

(1)  By surrounding and shouting abusive language towards PW1 to PW3 or some of PW1 to PW3, the 1^st and the 2^nd Defendants harassed, insulted and / or intimidated PW1 to PW3, who were at the material time witnesses returning from the Inquest and who had just given evidence at the Coroner’s Court;

(2)  The conducts of the 1^st and the 2^nd Defendants constituted victimisation of PW1 to PW3 for having given evidence in the Inquest.  In particular, the victimisation occurred on the first hearing date of the Inquest.  Such conducts had the potential effect of dissuading witnesses to give evidence, or to give evidence freely and frankly, in the Inquest and / or in court proceedings generally, particularly so given that the conducts were carried out in a public place (i.e. right outside the West Kowloon Law Courts Building) and in front of members of the press, and thus had created a real risk of interference with the administration of justice.

Backgrounds

4.It was not disputed between the Plaintiff and the two Defendants that:

(1)  There was a Death Inquest inquiring into the death of the Deceased whose death had generated a lot of public and media attention.  The Inquest was held by the Coroner sitting at the West Kowloon Law Courts Building and the day of the incident (i.e. 24 August 2020) was the first day of the Inquest.  PW1 to PW3 were respectively the mother, grandfather and cousin of the Deceased.  They completed their evidence on the first day of the Inquest. 

(2)  PW1 to PW3 were then escorted by police officers from the 8/F to the G/F of the court building.  Whilst walking from the lift lobby at the G/F onto the forecourt of the court building, they were surrounded by a group of people, some journalists and civilians. 

(3)  Members of the civilian followed PW1 to PW3 from the forecourt to the pavement outside and shouted abusive language aggressively towards them along their ways.  Some even raised their middle fingers. 

(4)  With the assistance of the police, PW1 to PW3 managed to board a private vehicle.  The crowd in the meantime continued to shout abusive language towards them and the vehicle was blocked for a brief moment before it was driven away.

(5)  Video footage capturing the above incident was obtained from open-source footage, camera of the vehicle and CCTV systems of the court building. 

(6)  The 1^st and the 2^nd Defendants’ presence and conducts were captured on the above mentioned video footage. 

(7)  The 1^st Defendant was widely known as “Lunch Gor” (Lunch 哥).  Video footage showed the 1^st Defendant following PW1 to PW3 when they left the lift lobby.  The 1^st Defendant initially followed them from behind and soon caught up with them and held up both middle fingers towards the back of PW1.  Shortly after, the 1^st Defendant walked up close to PW1 to PW3, held up his two middle fingers and shouted repeatedly in foul language towards the direction of PW1 to PW3. 

(8)  After PW1 to PW3 boarded the vehicle, it was not disputed that the 1^st Defendant and several other people stood in front of the vehicle.

(9)  In so far as the 2^nd Defendant was concerned, she followed PW1 to PW3 from the side and behind while the crowd shouted abusive language towards them.  As PW1 to PW3 were boarding the vehicle, video footage depicted the 2^nd Defendant was among the crowd. 

(10)  In the afternoon of the same day i.e. 24 August 2020, there was another hearing in the same court building concerning a private prosecution initiated by Ted Hui Chi-fung.  The hearing was conducted in Punti and the defendant in that case (a taxi driver who was accused of committing the offence of dangerous driving) was absent, a fact which the presiding magistrate mentioned at the beginning of the hearing. 

(11)  A photograph was published by the 1^st Defendant on his Instagram account on 25 August 2020 depicting PW1 to PW3 and him standing outside the court building and him holding up the middle fingers.

Legal Issues

5.Legal challenges were made both to the Actus Reus (whether the acts done by the Defendants were serious enough) and Mens Rea (whether basic intent was sufficient) amounting to criminal contempt in the present case. 

Actus Reus

6.Victimisation of witnesses, including witnesses who had already given evidence in court, had long been accepted in English law to constitute a criminal contempt of court. 

7.In Attorney General v Butterworth[1], Lord Denning MR described the rationale as follows:

“For there can be no greater contempt than to intimidate a witness before he gives his evidence or to victimise him afterwards for having given it. How can we expect a witness to give his evidence freely and frankly, as he ought to do, if he is liable, as soon as the case is over, to be punished for it by those who dislike the evidence he has given?”

“If this sort of thing could be done in a single case with impunity, the news of it would soon get round. Witnesses in other cases would be unwilling to come forward to give evidence, or, if they did come forward, they would hesitate to speak the truth, for fear of the consequences.”

“If witnesses are in this way deterred from coming forward in aid of legal proceedings, it will be impossible that justice can be administered.”

8.In Moore v Clerk of Assize, Bristol[2], Lord Denning MR referred to AG v Butterworth in holding that putting a witness who had finished giving evidence in fear – by shouting at her (while clenching a fist) constituted contempt.  

9.It was also accepted in R v AS[3] that running after a prosecution witness (after she had given evidence) and the witness’s mother outside of court premises and shouting at them in a way while the victims found “intimidating and frightening” was an unequivocal contempt, applying the principles in AG v Butterworth. 

10.It was expanded in R v Runting[4] that, as a matter of general principle, the power to hold persons in criminal contempt extended to protect anyone who had a duty to perform at a court, including witnesses, such that they should be entitled to go to and from a court free from “molestation” or “the fear of molestation”.  As stated at page 245: 

“ It should be made clear at the outset that the law insists that a defendant and witnesses, and indeed anyone else who has a duty to perform at a Court, whether in a criminal trial or in a civil trial, is entitled to go to and from the Court, that is between his home and the Court, whether on foot or otherwise, without being molested or assaulted or threatened with molestation.

There are two reasons for that, it seems to this Court.  The first is, there must be nothing to create in the minds of such persons any fear such as to make them less likely to wish to come to Court to carry out their proper functions.  The second reason, which is perhaps more difficult to put adequately into words, is this: that the authority and dignity of the Court require that those who attend the Court to carry out their duties should be allowed to do so without let or hindrance, and again without fear of molestation.” 

11.Lord Donovan LJ in Butterworth stated:

“The question is whether the respondents' action was calculated so to interfere, and this involves a consideration not of their state of mind on this particular point, but of the inherent nature of their act.”

12.Thus the actus reus was not confined to a mere consideration of the protection of the witnesses, it also encompassed acts which created a real risk of interference with the due administration of justice. 

Mens Rea

13.It was further held in Butterworth that for contempt in the form of witness interference or witness victimisation, there was no requirement to prove a specific intent, namely an intention to interfere with the administration of justice. 

14.However, it was submitted on behalf of the 1^st Defendant that in determining whether the 1^st Defendant had the mens rea for criminal contempt, this Court should follow the authoritative position laid down by the Court of Final Appeal in Chu Kong v Sun Min[5] where Lord Neuberger NPJ stated:

“26. … And, before a person can be liable for criminal contempt, it must be established that he intended to interfere with or impede the due administration of justice.”

15.This Court disagreed.  The passage relied upon by the 1^st Defendant was taken out of context of the judgment.  His Lordship in Chu Kong was simply giving a general summary of criminal contempt.  There was no discussion in that case regarding the mens rea of criminal contempt.  No reference had been made to the case of Secretary for Justice v Wong Ho Ming[6].  Nor was there any mention of the decision of the Appeal Committee of the Court of Final Appeal in refusing leave.  The above passage was no more than an obiter dictum. 

16.In Wong Ho Ming, the Court of Appeal held that whether a specific intent or a basic intent was required, depended on the actual form of contempt before the court and the public policy consideration involved.  That judgment was still binding on this Court. 

17.In the present case, the alleged contemnors were technically a third party, being observers of the Inquest.  Nevertheless, they showed a keen interest on the outcome of the Inquest given the atmosphere of the society and the public attention of the case at the time.  The actual form of contempt before the Court was harassment, intimidation and victimisation of witnesses after giving evidence.  As to the public policy consideration and principles, they had been set out succinctly by Lord Denning MR in Butterworth and the Lord Chief Justice in Runting above. 

18.As pointed out by the Court of Appeal in Wong Ho Ming where the conducts in question was the obstruction of the bailiff in the execution of a court order: 

“For such a criminal contempt, it is sufficient to prove as mens rea that he intended to do the acts which constituted the actus reus of the contempt. No specific intent to interfere with the administration of justice is required. In other words, so long as the acts of the alleged contemnor are inherently likely to obstruct or interfere with the bailiff when he is executing an order, and the contemnor intends to do the acts, that would be sufficient. There is no need to go further to prove an intention on the part of the contemnor to interfere or obstruct though very often such intent is self-evident or can be readily inferred.”

19.It seemed clear that the situation in harassing, intimidating or victimising a witness was of no different from obstructing a bailiff from executing court order.  The bailiffs were performing their duties on behalf of the court. Witnesses attending and giving evidence in legal proceedings were summonsed to the court.  Likewise they were assisting the court in performing its functions and duties.  They were fulfilling their civic duties as required by law and should therefore be accorded with all necessary protection. 

20.The harassment and intimidation in this case took place within the precinct of the court building.  The alleged contemnors carried out their harassment and intimidation knowing that the witnesses were under the protection of the police.  Further, they did all that in the presence of the press.  In today’s society, images captured reached the public instantly.  The administration of justice relied upon the willingness of witness to come forward to testify and speak the truth.  The chaos caused by the alleged contemnors would undoubtedly cause alarm and create fear for people from coming forward to court.  It would be of grave concern should witnesses generally less willing to testify because witness victimisation had gone unpunished.  In Hong Kong where the rule of law reigned, the due administration of justice could in no way be interfered with.

21.In Secretary for Justice v Tang Lin Ling[7], this Court decided that only basic intent would be sufficient for a case of taking photographs inside the court room as the act itself was inherently likely to interfere with the administration of justice. 

22.Given the factual matrix of this case, the two mens reas, whether basic or specific intent, were of little difference.  In fact, their acts could be self-evident of an obstruction and interference with the administration of justice.  Had the court come to the view that the two Defendants were aware of PW1 to PW3 being witnesses in the Inquest, and that they were intending to victimise or punish them, in particular PW1, for giving evidence in the Inquest, the very own nature of their acts were acts either inherently likely to interfere with the administration of justice or deliberately performed to interfere with the administration of justice. 

Factual Issues

23.Based on the above, the following were factual issues for this Court to determine:

(i)     whether the 1^st Defendant was aware of the holding of the Inquest;

(ii)    whether the 1^st Defendant was aware of the identities of PW1 to PW3;

(iii)   whether the 1^st Defendant’s conducts and words were directed at PW1 to PW3;

(iv)   whether the 1^st Defendant’s conducts and utterances put PW1 to PW3 in fear of their safety;

(v)    whether the 2^nd Defendant’s also participated in the shouting of insulting and abusive languages towards PW1 to PW3 knowing them to be witnesses.

Evaluation of Evidence

24.PW1 to PW3 were called by the Plaintiff to testify.  Their evidence to a greater extent was not challenged by the Defence.  After reviewing all the evidence, this Court had no doubt that both the 1^st and the 2^nd Defendants were fully aware of their identities, namely being witnesses in the Inquest of the Deceased, and that they had deliberately harassed and intimidated PW1 to PW3 by shouting abusive language and pointing their fingers towards them.    

(i) whether the 1^st Defendant was aware of the holding of the Inquest

25.It was asserted by the 1^st Defendant that he went to West Kowloon Law Courts Building with the sole purpose of observing the private prosecution proceedings initiated by Ted Hui Chi-fung.  It was not disputed that the 1^st Defendant had gone to Eastern Magistrates’ Courts earlier that morning under the mistaken impression that the private prosecution proceedings would be heard there.  After realising his mistake, he then went to the West Kowloon Law Courts Building.  It was also not disputed that the 1^st Defendant had attended the private prosecution hearing.  Given the fact that the presiding magistrate in the private prosecution case had made it abundantly clear that the defendant (a taxi driver) would not attend court that day on multiple occasions, this Court had no doubt that the 1^st Defendant who was being present in court would have known about that fact.  At the conclusion of the private prosecution proceedings case, the 1^st Defendant left the court building. 

26.There was no evidence to suggest that the 1^st Defendant had attended the Inquest.  However judging from various posts / entries published by the 1^st Defendant in his Instagram account, it seemed clear that he had kept a very keen interest on the death of the Deceased.  Between March and August 2020, the 1^st Defendant put up a post in his Instagram account on the 22^nd day of each month to commemorate the passing of the Deceased.  Two days prior to the Inquest, the 1^st Defendant on 22 August 2020 stated in his Instagram “Awaiting Vindication” (沉冤待雪).  The first possible step to vindicate the Deceased would no doubt be the Inquest.  Given his concern for the death of the Deceased, the irresistible inference was that the 1^st Defendant would be aware of the holding of the Inquest and that he would be very anxious to know about the outcome.  As such, when the 1^st Defendant informed Dr Robyn Ho, his psychiatrist that, he had no interest in the Death Inquest and was not following the progress, that was simply untrue.  After a careful consideration of the 1^st Defendant’s evidence, this Court had no doubt that he was not telling the truth in Court. 

27.When PW1 to PW3 were walking out of the court lobby and onto the private vehicle, they were followed by a group of very angry protestors.  Initially the 1^st Defendant followed them without much action.  It could be discerned from the video that as the protestors started to shout abusive language towards PW1 to PW3, the 1^st Defendant followed soon.  If the 1^st Defendant was not physically present in the Inquest, he would by then have realised that PW1 to PW3 were close relatives to the Deceased and that they had finished testifying in the Inquest.  Throughout their journey from the court lobby to the vehicle when PW1 to PW3 were walking together, the 1^st Defendant followed other protestors in targeting them.  Despite the fact that the situation at the time was very chaotic and noisy, and occasions, shoutings from the protestors could not be heard clearly, the 1^st Defendant could not have mistakenly identified PW2 to be the taxi driver.  The conducts in shouting abusive language and holding the middle fingers by the 1^st Defendant were done with one purpose only, namely to harass, insult and intimidate PW1 to PW3. 

28.The 1^st Defendant was seen from video footage (CWC-2 Disc 1 Stand News) shouting “stinking cxxt” (臭閪) at 0038 and 0045 second.  Given the specific words used, this Court had no doubt that the abuse was directed at PW1, the mother of the Deceased.  Again when the 1^st Defendant informed Dr Robyn Ho that he simply wanted to confront and scold the taxi driver as he strongly believed the taxi driver should be charged, again that could not be true. 

29.More pertinently, after the incident, the 1^st Defendant posted a picture of him on his Instagram account.  The picture depicted the 1^st Defendant raising his middle fingers towards PW1 to PW3.  In the post, the 1^st Defendant expressly stated that the gesture was directed at PW1, the fake mother according to the 1^st Defendant (Lunch gor係屌你㗎啦，假老母).  PW1 was the fake mother because she was giving false evidence according to the 1^st Defendant. 

(ii) whether the 1^st Defendant was aware of the identities of PW1 to PW3

30.By the time the 1^st Defendant followed PW1 to PW3 to their vehicle, he was fully aware of the fact that PW1 to PW3, being witnesses, had been given their evidence in the Inquest.  Along the way to the pavement, PW1 to PW3 were protected by plainclothes policemen.  His knowledge of PW1 to PW3’s identities was further reinforced by the abusive shouting, harassment and intimidation made to them by the protestors. 

31.It was not disputed that the 1^st Defendant had Attention-Deficit/ Hyperactivity Disorder (ADHD) and Autistic Spectrum Disorder (ASD).  Both the Plaintiff and the 1^st Defendant called one psychiatrist to testify. Dr. Dong, psychiatrist for the Plaintiff opined that the conditions of the 1^st Defendant were mild.  On the other hand, Dr. Ho, psychiatrist for the 1^st Defendant opined that one of the symptoms the 1^st Defendant had was having a low tolerance for frustration and that could lead to his strong reaction in a situation like the present one.  Further with his attention deficit or deficiency in social interaction, being disruptive and impulsive, the 1^st Defendant would not further verify the person’s identity. 

32.It was submitted therefore that given the lifelong illnesses of ADHD and ASD, the possibility of the 1^st Defendant being under the influence of the illnesses at the material time could not be ruled out.  Had the 1^st Defendant suffering from symptoms of ADHD and ASD, his acts could be explained by the symptoms such as rigid thinking and impulsivity.  It was further submitted that though what the 1^st Defendant did was not involuntary act as agreed by both experts, it was all due to the 1^st Defendant’s misidentification and that once the 1^st Defendant misidentified someone, with his low tolerance of frustration, rigid thinking pattern, impulsivity on the situation at the time, his symptoms would be easily worsen and would be harder for him to control himself. 

33.As mentioned above, this Court was of the view that the 1^st Defendant did not misidentify PW2 to be the defendant (namely the taxi driver) in the private prosecution case, the 1^st Defendant was fully aware of the identities of PW1 to PW3.  The 1^st Defendant deliberately followed PW1 to PW3 with the intention of harassing, insulting or intimidating them.  In view of that, Dr Ho’s evidence had little evidential value in the present case.  On the other hand, Dr Dong’s evidence was much more objective and preferable. 

(iii) whether the 1^st Defendant’s conducts and words were directed at PW1 to PW3

34.Video footage clearly depicted the 1^st Defendant following PW1 to PW3.  He walked with them along the forecourt.  The 1^st Defendant participated with other protestors in their harassment and intimidation towards PW1 to PW3. 

(iv) whether the 1^st Defendant’s conducts and utterances caused PW1 to PW3 in fear of their safety

35.PW1 to PW3 stated clearly that they were frightened by the protestors. PW1 was seen visibly stress on video footage.  It was also not challenged that once she got into the private car, she started to cry.  Despite the protection given by the police, no doubt they were in fear of their safety.  The behaviours of the protestors on that day were totally unacceptable in any civilised society governed by the rule of law. 

36.The 24 August was the first day of the Inquest.  The Inquest lasted ten working days.  Although PW1 to PW3 finished their evidence on the first day, given the proceedings had not been concluded, there was always the possibility of them being recalled.  According to PW4’s evidence, there were also two other civilian witnesses being summoned to give evidence.  As such, the impact of the harassment and intimidation from the protestors, including the 1^st and the 2^nd Defendants could have posed adverse effects and real risks for PW1 to PW3 and other witnesses to come. 

37.After assessing all the evidence, this Court had no doubt that the Plaintiff had proven the case beyond reasonable doubt against the 1^st Defendant and that he was guilty of criminal contempt. 

(v) whether the 2^nd Defendant also participated in the shouting of abusive language towards PW1 to PW3 knowing them to be witnesses

38.As for the 2^nd Defendant, she was seen from video footage that initially she followed the group of protestors by their side.  She thereafter joined in from behind.  Had the 2^nd Defendant been just an ordinary passersby, she could stay on the side and observe.  She was also seen talking or communicating with other hostile female protestors.  In fact, CCTV footage from the court building depicted the 2^nd Defendant entering the Coroner’s Court with other ladies in the morning.  She was also seen leaving the court room with them. 

39.It was also to be noted from video footage (CWC-2 Disc 1 Stand News) that shortly after one female protestor shouted “Dead dog, received money, bastard …… bastard, damn your family” (死狗呢㗎，收咗水仆街……仆街冚家剷) towards PW1 to PW3 at 0050 second, the 2^nd Defendant was also seen shouting “damn your family” (冚家剷) at 0104 – 0105 second clearly despite the fact that the 2^nd Defendant was wearing a mask.  In summary, the 2^nd Defendant was shouting in unison with other female protestors in harassing and intimidating in particular PW1.  The 2^nd Defendant reinforced the action taken by others. 

40.The 2^nd Defendant was fully aware the holding of the Inquest.  No doubt she knew PW1 was the mother of the Deceased.  When the angry female protestors shouted “received money” (收咗水), in the context of this case, she was no doubt referring to PW1 giving false evidence after receiving money, a bare assertion without any basis. Whether the 2^nd Defendant knew or acquainted with any other female protestors was immaterial.  The situation on that day was very much akin to taking part in a protest or riot where participants might not know each other, they however had a common objective in mind, namely victimising the witnesses for giving evidence to their displeasure.  As they wished to achieve their objective, they acted in concert with each other and supported each other. 

41.Given all the above, this Court also had no doubt that the Plaintiff had proven the case beyond reasonable doubt against the 2^nd Defendant, she was also guilty of criminal contempt. 

Conclusion

42.Both the 1^st and the 2^nd Defendants were found guilty of criminal contempt. 

Mr Jonathan Kwan and Mr Ivan Suen, instructed by the Department of Justice, for the Plaintiff

Ms Queenie Ng, instructed by Bond Ng Solicitors, assigned by Director of Legal Aid, for the 1^st Defendant

Mr Albert Wong, instructed by Lo, Wong & Tsui, assigned by Director of Legal Aid, for the 2^nd Defendant

[1] [1963] 1 Q.B. 696

[2] [1971] 1 W.L.R. 1669

[3] [2008] E.W.C.A. Crim 138

[4] (1989) 89 Cr App R 243, EWCA

[5] (2022) 25 HKCFAR 318

[6] [2018] HKCA 173

[7] [2022] HKCFI 2471