Secretary for Justice v. Li Kwok Wing and Another

HCMP 2254/2020

[2024] HKCFI 3001

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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D E C I S I O N

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1.The two defendants were found guilty of criminal contempt after a trial. The background of the case and their individual acts of contempt could be found in the judgment of this Court delivered on 26 August 2024 to which I shall not repeat.

2.In short, the two defendants were found to deliberately harass, insult, and / or intimidate witnesses in a death inquest, namely, PW1 to PW3, by shouting abusive languages and posing abusive gestures towards them.

3.The reason for that was that their evidence in court was simply not to both defendants’ liking. The abusive language used was gross, and the gesture posed was degrading.

4.PW1 to PW3 were summoned to testify in the inquest. They were doing no more than as requested by the court. The result was that all three prosecution witnesses were in fear of their own personal safety.

5.It was not disputed that PW1, the mother of the deceased, suffered a great deal of stress and was in tears. The two defendants’ behaviours and indeed the crowd gathered who were not caught by the police were totally unacceptable.

6.One matter that the citizens of Hong Kong continue to treasure is the rule of law. As such, the due administration of justice must in no way be interfered with or compromised. The two defendants admitted that they were wrong and wished to tender their apologies to PW1 to PW3. They come, in the court’s view, a little bit late but nevertheless the court notes their apologies.

7.Nevertheless, the acts that they did remain to be very serious. References are made to paragraphs 7 and 10 of the judgment, which stipulate the importance and the rationale for witness protection.

8.Mr Albert Wong, counsel for the 2^nd Defendant, has very kindly informed the court that offences of this nature in the United Kingdom are now dealt by way of proceedings under section 51(1) of the Criminal Justice and Public Order Act 1994, which criminalise the intimidation of witnesses, jurors and others. The sentencing guidelines for that offence may also serve as a useful guide as to how this court may approach sentencing. It sets down criteria such as the level of culpability and the level of harm for the court to consider when it comes to sentence.

9.This court takes into account the duration of the harassment was confined to a few minutes and that no actual violence was employed. However, one cannot ignore the fact that the harassment was done inside the precinct of the court building and that PW1 to PW3 who had just finished giving their evidence were walking out of the court under police protection. To a certain extent, the contempt was committed in the face of the court.

10.Although the 1^st Defendant has been suffering from long-term illnesses, this court however found that he was not at the time affected by those illnesses. He knew exactly what he was doing. All that could be discerned from his actions that morning and afternoon and the Instagram he posted later. In other words, the 1^st Defendant’s responsibilities could hardly be described as being substantially reduced by his mental disorder or learning disabilities.

11.Distresses were caused to PW1 to PW3, albeit not the most serious kind. PW1 was visibly distressed. The incident was seen on social media soon after. The impact on the administration of justice could not be underestimated.

12.In a case of criminal contempt, unless in exceptional circumstances, an immediate custodial sentence is called for. There are, however, no exceptional circumstances in this case. This case was far more serious than the case where the defendant took photographs inside the courtroom and was given 7 days’ imprisonment.[1]

13.As such, after a careful consideration of all the circumstances, in particular, the requirement for PW1 to PW3 to relive the situation on that day, it is ordered that the 1^st Defendant will serve an immediate custodial term of 3 months’ imprisonment.

14.As for the 2^nd Defendant, although she was not the most aggressive protestor that day, she lent her support to the crowd and some of those protestors appeared to be very aggressive indeed. The court however notes that no actual violence was done by the 2^nd Defendant.

15.After a careful consideration of all the circumstances, it is ordered that the 2^nd Defendant will also serve an immediate custodial term of 3 months. In conclusion, both the 1^st Defendant and the 2^nd Defendant are sentenced to 3 months’ imprisonment.

16.The costs of these proceedings for committal be to the Plaintiff on an indemnity basis, to be taxed if not agreed. The Defendants’ own costs be taxed in accordance with Legal Aid Regulations.

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

Ms Queenie Ng and Mr Colman Li (on pro bono basis), instructed by Bond Ng Solicitors, assigned by Director of Legal Aid, for the 1^st Defendant

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