Cheng Kar Yue, Selina v. Dow Jones Publishing Co. (Asia) Inc.

ESS 35334 & 35335/2024

(Heard together)

[2026] HKMagC 9

IN THE EASTERN MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

SUMMONS NO 35334 OF 2024

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AND

IN THE EASTERN MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

SUMMONS NO 35335 OF 2024

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STATEMENT OF FINDINGS

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1.The defendant is charged with two offences contrary to section 21B(2)(a) and (b) of the Employment Ordinance (“the EO”), the defendant pleaded not guilty to both charges.

2.The particulars of ESS 35334/2024 (“charge 1”) is that it was alleged that between 21^st and 22^nd June 2024, being the employer of Ms Cheng Kar Yue, Selina did an act calculated to prevent or deter her from exercising her right to become an officer of a trade union registered under the Trade Unions Ordinance Cap. 332, namely requiring her to obtain permission to stand for the office of Chairperson of the Hong Kong Journalists Association, which permission would be refused and stating that she would not remain so employed if she stood for or took up that office.

3.The particulars of ESS 35335/2024 (“charge 2”) is that it was alleged that on 17^th July 2024, being the employer of Ms Cheng Kar Yue, Selina, terminated the contract of employment of Ms Cheng Kar Yue, Selina (“PW1”) by reason of her exercising her right to be an officer of a trade union registered under the Trade Unions Ordinance Cap. 332, namely the Chairperson of the Hong Kong Journalists Association (“HKJA”).

4.The trial was initially set down for 4 days commencing from 18^th December 2025 to 23^rd December 2025, and the prosecution intended to called only one witness, namely PW1.

5.Prior to the trial, the defence had stated that the defendant would apply for Stay of proceedings, and that the defendant also asked the court to give a ruling on the admissibility of the without prejudice emails between the parties’ lawyers (“WP emails”). I first decided the issue of the admissibility of WP emails, because for the purpose of the Stay Application, the defence sought to rely on the contents of WP emails which the prosecution strongly objected to.

6.After hearing both parties’ submission on the issue of the admissibility of WP emails, I ruled that the WP emails could be used against PW1 and admitted in the present proceedings for non-hearsay purpose. Appendix “I” is my reasons for the said ruling.

7.After I had given my aforesaid ruling, I directed that an alternative procedure should be adopted, namely all the evidence of the prosecution including the Stay Application and the general issue should be heard in one go. PW1 would give evidence and be cross examined by the defence for the purpose of the Stay Application and the general issue.

8.After PW1 finished giving her evidence, the defence confirmed that there was no defence witness for the Stay Application. I therefore proceeded to hear submission from both sides in relation to the Stay Application.

9.After hearing the submission, I ruled that the application for a permanent stay of proceedings is refused, and I declined to grant the stay of proceedings applied for and ordered that the trial should continue. Appendix “II” is my reasons for the said ruling.

10.Before I decided whether there was any case to answer to both charges, the defence also asked the court to decide onthe admissibility of a number of prosecution provisional exhibits. Appendix “III” is my reasons for the said ruling. I found that the following exhibits are admissible for the purpose of the proceedings, namely PP8, PP8A, PP10, PP10A, PP11, PP12 and PP12A, and these provisional exhibits were marked formal exhibits as P8, P8A, P10, P10A, P11, P12 and P12A.

11.The defence did not make any midway submission. After the prosecution closed the prosecution case, I ruled case to answer to both charges.

12.For the defence case, the defence called 2 witnesses, namely Ms. Rachael Brockman, “Vice President, Global People Business Partner” at Dow Jones, the parent company of the defendant and later at another subsidiary of Dow Jones (“DW1”); and Ms Yip Yee Ho, a Labour Officer with the Labour Department (“DW2”).

13.The sole purpose of calling DW2 was to enable the defendant to tender Exhibit D17, a letter received by Labour Department which was, on its face, from the defendant’s former solicitors DLA Piper attaching inter alia a “Response to request for Information: ELR 11-2024-1449” dated 4^th December 2024 and signed by Mr. Andy Lau “duly authorized by the defendant”. The defence sought to rely on the contents of D17.

Prosecution case

14.The prosecution produced 4 sets of Admitted Facts namely Exhibit P1, P1A, P19 and P25. The prosecution also relied on 1 audio recording between PW1 and Deborah Ball (“DB”) on 20^th June 2024 (Exhibit P8), and 2 audio recording on 21^st June 2024 (Exhibit P10 and P12). The defence challenged the admissibility of the said recording and also the respective transcripts of the recording, namely Exhibit P8A, P10A and P12A. The admissibility of P11, the screenshot was also challenged by the defence.

15.In addition to the above evidence, the prosecution called one witness, namely PW1. A summary of the evidence of PW1 was produced by the prosecution and can be found in the “Prosecution’s Summary of Evidence” dated 16^th February 2026.

16.In gist, the prosecution case is that PW1 was a journalist employed by the defendant under a contract of employment dated 3^rd March 2022 exhibit P2, and worked as a journalist at one of the defendant’s publications, “The Wall Street Journal” (“WSJ”).

17.In or around May 2024, PW1 decided to run the office of Chairperson of the HKJA, a registered trade union.

18.On 20^th June 2024, PW1’s involvement with HKJA came to her employer’s attention. PW1 had recorded the conversation with DB, her direct supervisor where she expressed concern about PW1’s HKJA office candidacy (see Exhibit P8 and P8A).

19.On 21^st June 2024, DB called PW1 and demanded that PW1 withdrew from the election to the office of Chairperson of the HKJA. DB stated that this office was not compatible with PW1’s employment at WSJ. DB also stated that permission for PW1 to take up such a role could only be given by New York (see exhibit P10 and P10A).

20.Immediately after the call, apart from demanding PW1 to withdraw from chair election from HKJA, PW1 further received a text message from DB on 21^st June 2024 which asked her to resign from Honorary Secretary (see exhibit P11).

21.Later that day, DB stated that PW1 continued candidacy for office “would not be compatible with PW1’s employment at the Journal” and that “you can’t remain employed with us if you go ahead with this.” (See exhibit 12 and 12A).

22.On 22^nd June 2024, the HR Manager Kerene Ko (“KK”) sent an email to PW1, stating that “you will not receive the company’s approval to pursue this role”. (see exhibit P13).

23.On 17^th July 2024, PW1’s employment was terminated by the defendant. PW1’s case is that the termination was ostensibly on the ground of redundancy.

24.The prosecution case on charge 1 is that the defendant’s disapproval of PW1 candidacy and its threat to terminate PW1 employment on 21^st and 22^nd June 2024 were acts calculated to deter PW1 from exercising her right to become an officer of the HKJA.

25.The prosecution case on charge 2 is that the defendant terminated PW1 employment on 17^th July 2024 because PW1 exercised her right to be an officer of the HKJA.

Defence Case and issue for trial

26.The defence case for charge 1 and charge 2 is stated in paragraph 3 of the defendant’s closing submission.

27.As to the issues for trial, the defence stated that the prosecution has failed to establish the issue of authority, and the central issues for determination are (i) the particularized acts of DB/KK were specifically and duly authorized by the defendant; (ii) such actual authority (or instructions) was given by the directing mind and will of the defendant; and (iii) when giving such actual authority (or instructions), the directing mind and will of the defendant (as opposed to DB/KK themselves) had the “specific intent” required under section 21B; and if any one of the above is not established, the prosecution’s case on both charges would fail because DB/KK’s acts cannot be attributed (either in law or in fact) to the defendant as a corporate entity.

28.These employees were legitimately concerned about the potential conflict not because PW1 joined as Chairperson of HKJA but because what PW1 might do in that position.

29.For charge 1, the defence further stated that the prosecution also needed to establish the relevant acts took place within jurisdiction.

30.For charge 2, the defence also stated that the prosecution has not established beyond reasonable doubt that (i) PW1’ s termination was solely by reason of her exercise of her trade union rights; and not by reason of redundancy.

Legal requirements

31.I have reminded myself of the burden and standard of proof. I bear in mind the burden is on the prosecution to prove the case beyond reasonable doubt. Moreover, each charge will be considered independently and separately. On the other hand, the defendant is not required to prove anything.

32.As regards the evidence given for the defendant, the tribunal of fact should not only have regard to that which is true, but also to those facts in the defence evidence which might be true: Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600. Where there is any reasonable doubt, the benefit should go to the defendant.

33.Insofar as the prosecution relies on any inference to support the charge, such inference is not to be drawn against the defendant unless it is the only reasonable inference available from the direct facts proved : Kwan Ping Bong & Another v R [1979] HKLR 1.

34.The defendant has a clear record and in the circumstances, I give myself the direction in relation to both propensity and credibility.

The gists of the submission of both sides

35.At paragraph 22 of the prosecution’s closing submission, the prosecution submitted that the defendant acted through DB, Mr. Gordon Fairclough (GF) and KK, or that each acted on behalf of the defendant.

36.In addition to that, at paragraph 35 of the said submission, the prosecution submitted that the HKJA is a trade union registered under Trade Unions Ordinance (see exhibit P16). To be the president or chairperson of such a trade union board is “to be or to become a member… an officer of a trade union”, the subject of a section 21B(1) right, and that the plain words of the statement made by KK and DB to PW1, orally and in writing for and on behalf of the defendant in exhibits P8, P10, P11, P12 and P13 were intended and/or calculated to prevent or deter PW1 from exercising that right.

37.The reason as submitted by the prosecution was that the defendant first required PW1 to obtain permission to stand for the office of Chairperson of the HKJA and then PW1 was told “which permission would be refused”. On the face of exhibits P12 and P13, they further stated that “……she would not remain so employed if she stood for or took up that office.”

38.The prosecution submitted that for an employer to require the employee to obtain its permission to take up office can be a deterrent; to forbid, or to threaten dismissal if the right is exercised is an act calculated to deter its exercise.

39.The defence submitted that generally PW1 has been less than honest and forthright with her evidence. The defence reiterated the observations made in Annex B to D’s Abuse Skeleton (5 February 2026) and the defence’s response to the prosecution on 23 February 2026. The defence submitted that a pattern of selective disclosure of matters by PW1 rendered her evidence unreliable.

40.The defence also submitted that PW1’s evidence on the central issues in dispute - the authority of DB/KK and the reason behind her termination - was necessarily limited or based on conjecture. She is not privy to, and has no personal knowledge of, the decision-making processes and operations of the defendant or Dow Jones as an organization.

41.The defence argued that once the content of the June 2024 calls is stripped of hearsay and conjectural assertions not based on proven primary facts, PW1’s subjective interpretation cannot fill the evidential gap on whether the defendant in fact made a corporate decision to deter trade union activity, still less that this was the one and only reason for dismissal.

42.As to redundancy, the defence stated that to PW1’s own knowledge (as confirmed by DW1), PW1’s previous position was never replaced by anyone and thus the position itself was made redundant.

43.The defence also stated that DW1 was called because her HR role required her to know, and to verify from internal systems, the redundancy strategy, records and headcount changes affecting Hong Kong and APAC.

44.The defence stated that DW1’s evidence is relevant because she could speak, from her role and review of company records, to Dow Jones’ redundancy strategy, process and HR practice, and her evidence on redundancy was firmly anchored in contemporaneous HR records which she had checked against the internal system. Such matters were within her remit, since she was obliged to know about the strategy on redundancy as part of her professional role in the company.

45.The defence also stated that the general principles in relation to the drawing of inferences are summarized in the CFA case of Winnie Lo v HKSAR (2012) 15 HKCFAR 16 at 115 :-

“There are three requirements for drawing such an inference. First, it must be grounded on clear findings of primary fact. Secondly, the inference must be a logical consequence of those facts. Thirdly, beyond being logical (since more than one inference might logically be drawn), in a criminal case the inference must be “ irresistible’, that is, it must be the only inference that can reasonably be drawn on the basis of those facts.”

46.Other cases relied on by the defence included Chamberlain v R 51 ALR at pp237-238, Teper v R [1952] AC 480 at pp 489 and Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387 at 185-186.

47.Regarding the issue of authority, the defence in section C of the written submission had given a detailed analysis, and in section D, the defence also submitted their view on the interpretation of section 21B(2) of EO.

48.The defence submitted that section 21B is not an “absolute right” without any qualifications, and that the legislative intent was to protect unjustified interference with the right of the employee to participate in trade union activities which relate to employment issues - such that the employee may have more bargaining powers on employment related issues, such as negotiation of fair wages, securing safer working environments, or ensuring equitable treatment in the workplace. Therefore, the defence’s stance is that it does not create an “absolute right”.

49.The defence submitted that the Bill’s explanatory memorandum stated that the legislative purpose of section 21B of EO was to give effect to certain provisions of the International Labour Convention No.98 (“ILC No.98”), which was to “protect and advance the rights and welfare of employees” via trade unions. The ILC No.98’s preamble also stated it was about “the adoption of certain proposals concerning the application of the principles of the right to organize and to bargain collectively”. Therefore, the defence submitted that the entire purpose of the section is to protect workers’ employment related rights and welfare.

50.The defence also submitted that from the Legco materials, it can be seen that the right is not an absolute or unqualified one. As the Secretary for Social Services (Acting) explaining the Bill to the Legislative Council stated on 17 July 1974 : “ The bill makes it an offence for an employer or his agent either to refuse to employ, to penalize, or to dismiss an employee by reason of an employee exercising his right to be a member or officer of a trade union or to take part in its legitimate activities…”.

51.The defence argued that the qualifications of “legitimate” activities clearly acknowledge that there are limitations to the scope of protection section 21B of EO is intended to offer, and that it followed that where the employee’s conduct is in clear breach of employment contract and is unconnected with employment issues, section 21B cannot (and should not) be used to punish the employer.

52.The defence submitted that the impugned conducts relied on by the prosecution in this case did not suffice as a matter of law to constitute the section 21B(2) EO offences, because they do not constitute unjustified interferences with PW1’s employment related rights and welfare, and therefore did not contravene section 21B(2).

Discussion

53.For the purpose of discussion, I shall set out the summary of the evidence of PW1 and DW1 first before I deal with the issues raised by both parties.

54.PW1 said that she worked for The Wall Street Journal and she explained that The Wall Street Journal is a business unit in Dow Jones, the parent company, and the Hong Kong office is under the subsidiary of Dow Jones Publishing Company (Asia) Inc. She was officially employed by Dow Jones Publishing Company (Asia) and, within this company, there is Wall Street Journal’s Asia employees, and her job was a reporter for the Wall Street Journal.

55.PW1 also said that she first became a member of the HKJA in 2019, and she took employment with the defendant in 2022. She joined the main journalists union and association in Hong Kong, that is HKJA because she was working as a reporter in Hong Kong at that time. She was a member of HKJA on and off between 2019 and 2020 and then in 2020, she joined and became the executive committee and the board member of HKJA, and from 2021 to the present, she stayed on the executive committee. In or about May 2024, she lodged a nomination form to run for the office of Chairperson of HKJA.

56.Regarding her work assignments and product, she would produce them to her supervisors at Wall Street Journal. Her immediate supervisor was Neil Western but during May and June 2024, her immediate supervisor changed to DB.

57.DB was the main person communicating with PW1 about assignments and work, and before 20 June 2024, PW1 would speak to DB on almost daily basis. PW1 would either call or send messages to DB using an application called Signal in the mobile phone that was given to PW1 by the defendant as company phone. PW1 would also communicate with DB by emails.

58.PW1 said that the reasons why Signal was used because messages sent would be encrypted and also once the message was read, it would disappear from the sender’s and the recipient’s phone after a set amount of time, and it was the main communication channel for colleagues. PW1 also said that she could not take a screenshot of the Signal application on her company phone.

59.PW1 also explained that to record a Signal message, she could only use a different phone and the camera on a different phone to record a Signal message.

60.On 20 June 2024, DB called her via PW1’s company phone in the afternoon and the main subject of the call was PW1’s participation in the HKJA executive election that was about to take place on 22 June 2024. PW1 then took her personal phone and opened a voice recording application on her personal phone and she put her personal phone next to her company phone to record what DB was saying to her. She explained that she started the recording as soon as DB mentioned HKJA and ended the recording around the end or after the end of the call.

61.PW1 also produced a set of transcript from the call recording, and the original transcript was in her USB drive with her. PW1 explained that the first call recording of DB was stored on her personal phone where it was recorded.

62.The recording is automatically uploaded on to her personal Google Drive and then PW1 sent it from her personal Google Drive to another Google Drive which she owned and used for work, and no one has access to them except PW1 herself. She had a password for these two Google Drives. She explained that she opened the work Google Drive and downloaded them onto the USB and listened to the files and she found that the files sounded exactly the same as the original recording (See P8 and P8A).

63.After the first call, PW1 sent DB an email that evening(see P9). PW1 recalled that the gist of the first call of DB was DB’s concern of PW1’s participation in the union election. DB described and said it was problematic, and she said she needed to discuss with Wall Street Journal’s management in New York and also with the in-house lawyers at Dow Jones.

64.PW1 also said that the next day, DB called her again on Signal, and DB said that she had a discussion with New York and with her supervisor and DB told PW1 that they would like her to withdraw from the union election. DB also said that outside activity would have to be approved by the company and PW1 did not inform the company earlier for approval.

65.PW1 also explained that she recorded the second call the same way she did for the first call (see P10 and P10A), and the gist of the second call was that DB told her that the Wall Street Journal’s management did not want her to run in the union election and asked her to withdrawn from the election.

66.After the second call, DB sent her a message on Signal (see P11). P11 is a photograph from her company phone and she took it by using her personal phone to take a photo on her company phone.

67.PW1 further explained that Dow Jones is an American company. The headquarter is in New York and has various subsidiaries where different people working for the same business unit are employed. PW1 said that though she was an employee of Dow Jones Publishing Company (Asia) butsometimes, she would have to communicate with or receive instructions from Dow Jones, the parent company, in the US or other subsidiaries under the umbrella.

68.PW1 said that her supervisor DB was employed byDow Jones & Company and DB’s supervisor, Gordon Fairclough who was the World Coverage Chief was employed byanother one of Dow Jones Company, and Gordon Fairclough was the head of World News. PW1 also explained that coverage referred to coverage area, and Business news is one coverage area.

69.PW1 said that after the message (P11), she had another communication with DB that same afternoon via Signal. PW1 recorded the third call with DB the same way she did the first call (see P12 and P12A). PW1 recalled that the gist of the third call was that she told DB that she would continue with the union election, and PW1 was told that DB would refer to Kerene Ko, the HR person and said Kerene Ko would go through the contract with PW1.

70.The defence confirmed that the chain of producing the transcript of the 3 Signal calls and the accuracy of the transcript of the recording of the 3 Signal calls was not in dispute subject to the admissibility of the tapes.

71.PW1 said that she was already the honorary secretary at HKJA before she joined The Wall Street Journal, she recalled that she had a discussion with her supervisor who hired her and at that time her understanding was that The Wall Street Journal had no problem with it.

72.After the third call, PW1 received an email from Kerene Ko (see P13). PW1 said that she was elected chairperson on 22 June 2024 and she took up the office with effect from 1 July 2024.

73.PW1 said that she received the termination letter by email which stated that her employment was terminated on 17 July 2024 after she saw Gordon Fairclough in person. PW1 explained that she believed that the termination was unlawful.

74.PW1 also explained that she reported on the Chinese Car industry but after 22 June 2024, things at her office were rather quiet for her, and she seldom received instruction from DB. PW1 recalled that on 2 May 2024, most of her colleagues were laid off except 4 people including herself.

75.Before the layoffs, her main responsibility was to cover the Chinese car industry but also sometimes news about Hong Kong politics. After the layoffs, DB told her to focus only on news about the car industry.

76.During cross examination, she explained that when she was hired, she was hired to be on the Corporate News Team and she was part of the Hong Kong bureau and after the layoffs in May, she moved to World News Team. She agreed that the News teams in Hong Kong had reduced significantly in size since June 2022 comparing June 2022 and June 2024.

77.She also agreed that some of the roles had been completely eliminated in the News teams and not replaced by anyone. Her understanding was that referring to the layoffs in May, there was a shift in structure from the Hong Kong office to the Singapore office to make Singapore the Asia head office instead of Hong Kong.

78.She confirmed that in May 2024, after the reorganization of the Hong Kong office, the company notified her that she would no longer report on Hong Kong stories but would instead focus on the auto industry, and that the change in her work scope and work nature had already started before the company was aware of her running for chairperson of HKJA.

79.PW1 was shown exhibit D15, she agreed that what was said in the article was what was happening in the company, and that was the approach of the company.

80.PW1 also explained her motives for bringing the private prosecution proceedings to the criminal court. She said that she knew that to terminate an employee for their position in a union is a crime in Hong Kong. She knew that it sometimes happened but very rarely were employers held accountable for such behaviors. Because she herself was facing such situation, she knew that people in her industry would find out about it very soon. As head of a union which defended reporters, she felt she had to take action to hold employers accountable. She believed that this would set an example for not just employers in the news industry but also for any employer in Hong Kong, to let them know that they could not terminate an employee for their union position and that they could not prevent anyone from participating in a union. She also believed that one of the best things that her employer could do is to reverse or undo their mistake, and that was why she asked for reinstatement in her claims in Labour Tribunal.

81.She further explained that the reasons she started the private prosecution proceedings was that the statutory limit was coming up and was going to expire on 20 December 2024, and she had not received any response from the Labour Department or the DOJ about whether they would prosecute.

82.She also explained that she did not authorize her solicitors to compromise criminal proceedings in return for money in or around 26 November 2024, and she gave broad consent and direction to them to pursue her interest.

83.She explained that she had access to the code of conduct applicable to her and she recalled that there is specific requirement that employees of Dow Jones must not violate local laws.

84.During cross examination, PW1 was shown the code of conduct (exhibit D2). She agreed that there was a requirement in the code of conduct stating that “No Dow Jones employees should permit his/her Dow Jones affiliation to be noted in any outside organizations, materials or activities without the approval of the chief-executive officer or the general council unless the employee serves as a representative of Dow Jones or unless the affiliation is noted as part of a broader description of the employee’s identity.”

85.PW1 explained that employees should retain key messages or key points from the code of conduct and not necessarily remember them verbatim. I accept her explanation that this is how she approached to familiarize with the code of conduct.

86.She agreed that to her knowledge in the public domain, HKJA had been described as having no credibility, lack of recognition or representatives, and she accepted that such allegation was made in the public but she maintained thatthose allegation was false.

87.She also agreed that she did not inform The Wall Street Journal of her running for chairperson of HKJA but she disagreed that she told lie to the press during July press conference when she was asked whether her supervisor mentioned what the difference was between the position of her previous role as an executive committee member and the role of chairperson, though she may be incorrect when she spoke with the press.

88.She agreed that on a previous occasion, when she sought to be the temporary spokesperson for HKJA, before she took on that role she spoke to a senior in the company, and she did that because one of the code of conducts was that employees should seek approval when responding to media enquiries, so she asked if it was appropriate to take up the activities as spokesperson specifically because of the rule about responding to media enquiries.

89.She agreed that DB was conveying to her that it was wrong for her to not have informed The Wall Street Journal about running for the chairperson but PW1 did not agreed that she should inform The Wall Street Journal that she wanted to run for chairperson. She did not agree that she deliberately concealed her running for chairperson from her employer, and that she had concealed for 3 weeks already.

90.She explained that she did not accept the defence’s complaint that she concealed from the defendant because she believed that it was her legally protected right to run for a union position, and her employer’s opinion for running for chair did not matter.

91.She explained and said the fact that she did not ask the defendant nor inform them did not speak to her honesty. She also explained that she was running for a union position because she was within her right to not seeking their permission and even if she did ask them, under Hong Kong law, they were not allowed to deny her request.

92.I accepted her explanation because obviously PW1 held a different opinion and attitude as to the requirement of seeking prior approval with the company regarding the issue of running for chairperson of HKJA. Her belief is consistent with her act not informing nor seeking prior approval and I accepted that it had nothing to do with the issue of honesty.

93.She agreed that DB was conveying to her a concern that she would be affiliated to the outside world to The Wall Street Journal and also conveying to her the role of PW1 as the chairperson may create conflict of interest with the company.

94.She agreed that in the press, she never mentioned that the company attempted to reach out to her. Her explanation was that she did not believe the company ever tried to negotiate with her since DB’s attitude was hard and clear.

95.She also explained that there should be no time constraint to the company to talk to her before or after her appointment as chairperson and to express any opinion. She disagreed that there was an urgency for the company to talk to her. She considered that if the company was constrained by time which was directly linked to the results coming out on 22 June 2024, she would assume that the company was trying to interfere with or to impede the results of a union election.

96.On 8 July 2024, she filed an internal complaint through the internal complaint procedure with the company expressly raised the issue of a potential criminal offence of preventing her to conduct trade union activities. She also sent some emails to different law firms before 17 July 2024 to enquire about retaining them, but she did not actually have lawyers until after 17 July 2024.

97.During cross examination, PW1 was asked by the defence a number of questions regarding the WP emails. The defence, apart from attacking the honesty of PW1 for the purpose of Stay application, the defence reiterated and submitted that generally PW1 has been less than honest and forthright with her evidence. The defence also submitted that a pattern of selective disclosure of matters by PW1 rendered her evidence unreliable.

98.PW1 was shown WP email dated 16 August by the defence, the email was a month after the July press conference. She was asked when her lawyer wrote that email and spoke of not their desire to escalate this matter prematurely, it was referring to a claim in Labour Tribunal and making a criminal complaint to Labour Department. Her answer was negative and she said that it only referred to filing a case with the Labour Tribunal which was a civil case though she did have a criminal complaint in mind, but that was not why her lawyer wrote that email because she was expecting prosecution to be brought by the government.

99.She agreed that one of the advantages of using mediation is that the Employment Tribunal maximum compensation will not apply. She was also referred to the WP email dated 23 September 2024 by the defence, and asked that when the said email stated that the potential legal consequences for violation of Hong Kong law, it was threatening the company of triggering the dual-track procedure, namely civil and criminal proceedings. PW1 disagreed.

100.PW1 earlier on explained that the said email was not written by her, the phrase in the said email stated that “potential legal consequence of a violation of Hong Kong’s labour law” could refer to civil violation though she was also aware that there were potential criminal consequences for Dow Jones, and it could happen to Dow Jones whether or not PW1 mediated the civil part of the issue. I agree with the explanation made by PW1 and find that there is nothing improper for PW1,through her lawyer,to write the said email with the settlement proposal to the defendant.

101.PW1 was also asked by the defence as to how she came up with the figure of HK$3 million, and she explained that it was not based on any lawsuit, whether it was in Hong Kong or in the US, or what she can get from civil litigation. She further explained that if she were to get any settlement from Dow Jones, it should compensate the damage that she and HKJA received as a result, and it was with that purpose in mind and she thought nothing about the limitations of the financial limitations of the Labour Tribunal or how muchof her salary that represented, and that she believed in any negotiation or mediation, the parties can settle on any amount they are both happy with.

102.She agreed that what she had explained about the HK$3 million compensation is about compensation for damaging her reputation and that of HKJA and that only after she had received the unequivocal email from the defendant saying HK$3 million was unacceptable, she went to report the matter to Labour Department, making use of the dual-track procedure.

103.She also agreed that one of the reasons she moved to Labour Tribunal was because the defendant refused to pay her HK$3 million, and nowhere in her claim form filed to the Labour Tribunal mentioned she asked for HK$3 million.

104.I accepted her explanation, and found that she was honest and did not hold back anything when explaining how she came up the figure of HK$3 million.

105.The defence put the question to PW1 saying that in the press conference, PW1 said that she had already filled out the claim form and would go to the Labour Tribunal to file a claim. She would give a detailed statement to the Investigation Division of the Labour Department. As a union chairperson, she was requesting the Employment Claims Investigation Division of Labour Department to investigate and prosecute The Wall Street Journal for violation of section 21B of the Employment Ordinance, and the defence said that this was a threat to the company which PW1 disagreed.

106.The defence also challenged PW1 by saying that when PW1 stated in press conference she said that she must not allow some employers to think that they could simply resolve the issue by paying money but the fact was that it was PW1 who was asking the defendant to pay HK$3 million, and PW1 did not tell the press the truth.

107.PW1 explained that even if Dow Jones and she reached a settlement, they would still not be able to resolve the criminal matter. They would still be criminally liable and, even if she waived all claims against Dow Jones, she was still entitled to report a crime to law enforcement.  

108.She explained that she intended to tell the press about the result of a successful settlement if there was one, and that was why she also requested that there be no non-disclosure agreement. She did not see that it would be useful to go into details about the terms that did not happen, and that was why she did not mention it to the press. She denied that she tried to conceal the fact by not mentioning it in any of her press conference.

109.She believed that it was not useful or constructive to talk about negotiation terms in the press conference that ultimately did not materialize. I accepted her explanation and found that the way she handled and answered the questions in the press conference will not affect her credibility and integrity as a witness in this proceedings.

110.She was also asked that when she filed a statement with the Labour Department making a criminal complaint on 13 November 2024, she did not state in the statement the two major concerns that was raised with her by the company, affiliation and conflict of interest.

111.She explained that she did not think all of them were relevant to the Labour Department’s investigation and she answered truthfully based on what she believed was the case and was relevant to the investigation. She also said that the Labour Department was in possession of all her call recordings and transcripts, and if they asked her any question about those issues the defence raised, she would answer to the best of her ability. I accepted her explanation and I do not find that she intended to hide or to conceal anything when she gave the statement to the Labour Department.

112.She recalled that to the best of her knowledge, as far as 14 November 2024, there was no open recruitment for an automobile-industry reporter.

113.During cross examination, she also explained that she did not think employers should be able to absolve themselves from their duty under employment law just by paying financial compensation to employees, and for a lot of corporations, paying fines or paying financial settlements was integrated as part of their operational costs. She disagreed with that approach.

114.She also explained that she and her lawyer never at any point wielded the private prosecution against Dow Jones, and they never made such suggestion, and they have been careful about not leading anyone to think that. She said that from the Labour Department’s response to her or the lack of a prosecution decision, she believed that the government most likely would not prosecute and so she was already preparing for private prosecution and so the reason that there seemed to be a rushed timeframe was not to use it against the defendant or to force them to do anything of such but simply to draw a line so that she and her lawyer were clear that they would not be using criminal action for civil settlement purpose.

115.The defence also put to her that the failure by her to inform the court of any of the events from the time of her termination until 12 December 2024, she was not being full and frank with the court for the purpose of launching the private prosecution summons. She disagreed.

116.From what PW1 had explained, I find that PW1 had all along have both criminal and civil complaint in mind against the defendant, and her action is consistent with her mind not to compromise criminal proceedings in return for money. I find that PW1 was clearly motivated to seeking both “compensation for loss suffered and the wish to see justice done”.

117.I also find that the desire of PW1 for compensation for loss suffered and the wish to see justice done can sit readily alongside one another. I therefore do not find that the private prosecution was motivated by any improper purpose.

118.I also accept her explanation to the reasons why she laid the Complaint on 12 December 2024, which was because of the imminent statutory time-bar, and by that point she had received no response from LD or the Department of Justice.

119.I find that PW1 is honest and reliable, and I do not accept the attack and allegations made by the defence regarding the issue of dishonesty on PW1. However, things and matter that was not within her knowledge or hearsay in nature will not be relied on by me, and I shall explain later.

120.I also find that PW1 is honest and reliable in giving the details as to how she recorded those 3 calls between DB and herself and also the way she captured the screenshot of the Signal message (P8, P10, P11 and P12) and reproduced those 3 calls to transcripts. PW1 had listened to the contents of the 3 recordings and confirmed the contents of those 3 recordings represented what she had heard during the actual call between DB and herself. I find that the chain of evidence of those 3 recordings (P8, P10, P12) and Signal message (P11) are complete and not broken.

121.As to DW1 Rachael Brockman, she was the Vice President of People of EMEA and APAC at Dow Jones. She said that EMEA stands for Europe, Middle East, Africa and APAC stands for Asia-Pacific and they were regions that she oversaw in her current role, and that she is currently based in London office in the UK.

122.She said that she joined Dow Jones in November 2022, and her initial role with the company was the vice president of Global People Business Partner. That role entailed working with executives in her New York office, and she supported them to make decisions about their workforce, like redundancies, location strategies and, in that capacity, she had a team of 5 HR professionals all based in the US who reported to her.

123.She said that in October 2024, she was relocated back to London and she took on her current role and, in her current role, she oversaw HR strategy for all of the countries she listed earlier including Hong Kong.

124.She said that in her current role, she had 10 HR professionals who reported to her, and they were based in London, Barcelona, Singapore, Hong Kong and Japan. They oversaw all HR matters, such as recruitment, employee-relation issues, benefits and contract matter.

125.She said that she also had a senior director of HR that reported to her and that person was based in the Singapore office overseeing the Asia-Pacific region, including Hong Kong on day-to-day matters.

126.She also explained that in her professional capacity as VP of human resources, she had access to all employee personnel records which would include all employment matters as well as disciplinary matters. She did not find any disciplinary records in PW1’s file, and she was not aware of any disciplinary action that had been taken against PW1.

127.She also said that she was obliged to know about company strategy on redundancy. She recalled that the company strategy of redundancy for Hong Kong was decided in early 2024 around the first quarter of 2024.

128.She explained that the decision to make such a big change required a lot of thought and planning and so time was needed to do that, and that the sort of things when planning redundancies was to identify what roles would be eliminated, and also looked at the severance calculations. However, she was not personally involved in the discussions or decisions.

129.She also said that in order to ensure that work continuity was possible, redundancies may happen in phasesso as to ensure the same work got done that day after the redundancy exercise that the business required. In the case of relocation of role, there might be need to hire people before the company could make the redundancies.

130.She was also shown a spreadsheet (exhibit D16). She said that the spreadsheet was not created by her but she had access to employees’ information in Hong Kong, and it was part of her role to know where the employees were and to make sure that the HR team is staffed to deliver HR work.

131.She explained that she had verified the information in the spreadsheet by pulling a report of all of their staff in Hong Kong over a period of time and then she went line by line and number by number to verify the accuracy, and she confirmed that they were accurate.

132.She also confirmed that the pattern shown in the spreadsheet was consistent with what she understood in relation to the redundancy strategy. The list in D16 was also shown to her and she said that the end of the entry in the list was December 2025, with one reporter left, and the current position now in March 2026 in terms of the number of Hong Kong reporters was the same.

133.She also said that she did not create the list but she was able to verify the information and could confirm that the information was accurate by pulling a report from HR system which detailed reasons for termination and termination date and employee name.

134.She also said that the page headed “Dow Jones redundancy in APAC” was not created by her but she did verify its accuracy in the same way. She said that according to the record, PW1's role as a reporter was made redundant on 17 July 2024. She also said that if the termination of employment were for reasons other than redundancy, the employees’ name would not be found on the list.

135.She explained that the newsroom management team determined that they wanted Singapore to be the primary location for newsroom activity, and none of the positions in the list were replaced in Hong Kong.

136.She also confirmed that PW1’s news-reporting role on Chinese electric vehicles was never replaced in Hong Kong, and the reason was that the decision had been made to move the roles to another location.

137.DW1 was also shown exhibit D2, and she said that that was one of Dow Jones’s policies. She said that this policy is the company code of conduct and detailed the guidelines for professional conduct at Dow Jones and applied to all employees. She also confirmed that exhibit D2 was the current version.

138.DW1 said that according to the code of conduct, if Dow Jones was to be affiliated with any other organization, the very most senior people in their company would have to approve it, and that would be the chief executive officer or the general counsel, who is the most senior lawyer in the company.

139.DW1 also explained that Dow Jones used an American way of titling employees and so there was a structure to denote seniority in the business and the levels of management. The levels would be manager, senior manager, director, senior director, vice president, senior vice president, executive vice president and then chief financial officer.

140.She said that Kerene Ko was described as a director but she was not a company director and within her department, she would be more of a mid-level manager role. She also confirmed that PW1’s direct supervisor manager was DB and DB’s direct boss was Gordon Fairclough who was a member of the newsroom management team.

141.She also said that Andy Lau is the associate general counsel, and he managed all legal matters locally for the Asia region.

142.She was shown P13 by the defence, an email purporting from Kerene Ko in June 2024 to Selina Cheng. Her understanding was that the approval referring to in the email was the approval outlined in the code of conduct, that was the approval of the executive management.

143.She also said that there was no action taken against PW1 but as a matter of practice of the company the human resources need to say to PW1 that no approval had been granted, and the email was to put on record that approval had not been granted.

144.DW1 was also shown P14, and she said that P14 was the type of standard redundancy termination letter. She said that it was very common after a redundancy for other employees to ask if any more redundancies would take place. She explained that HR advised all managers not to commit that there would not be any more redundancies because they could not predict what might happen and redundancies happened in many areas of the business throughout the year, and redundancy decisions were ultimately made by the executive management team mostly based in New York office and there were two executives based in Europe.

145.DW1 also said that it was the newsroom management team that determined Singapore was to be the primary location for the newsroom.

146.During cross examination, DW1 said what a line manage was supposed to do according to the code of conduct. She said that she expected the manager to role model the code of conduct and to flag or raise any concerns if there was anything not in line with it, and if the line manager thought or believed that there was going to be breach of the code of conduct, it was the responsibility of the line manager to flag it. That could be to HR, or to legal.

147.She also confirmed that Andy Lau was employed in June 2024 who was an associate counsel managing legal matters locally for Hong Kong.  In practice, the HR team in Hong Kong, Singapore and Japan, their first point of contact would be their employment attorneys in New York. She said that it was common at multinational organizations for people to go to the headquarters first for advice.

148.She also confirmed that Dow Jones took the code of conduct very seriously and all employees were responsible for compliance with all aspects of this code.

149.DW1 also confirmed that Kerene Ko had authority to sign the dismissal letter and the employment letter of PW1 but she did not know whether Kerene Ko had the authority to write on behalf of the company and said to PW1 that PW1 would not receive the company’s approval to pursue her role as chairperson.

150.DW1 said that PW1 was made redundant and her termination was by means of redundancy and she disagreed that PW1’s contract was terminated by the defendant by reason of her exercising her right to be an officer of the trade union, namely chairperson of the HKJA.

151.I find that DW1 is honest and reliable in relation to things that is within her knowledge. However, things and matter that was not within her knowledge or hearsay in nature will not be relied on by me, and I shall explain later.

152.Before I discuss the submissions made by both parties in relation to the recordings, the screenshot and email from Kerene Ko, namely P8, P10, P11, P12 and P13, I shall first deal with the defence exhibit D17(1-9), namely DLA Piper Cover Letter to Labour Department, enclosing Initial statement by Andy Lau dated 4 December 2024.

153.The defence submitted that DW2 was called to admit Andy Lau statement into evidence and that DW2 evidence was formal and uncontroversial. The defence also submitted that D17 contained a clear statement, made on the defendant’s behalf to the Labour Department, and that in the case of a mixed statement, if a defendant’s right not to testify is to remain meaningful, “it is essential that the self-serving parts of the statement made by him are capable of being evidence of their truth.”  Archbold Hong Kong at 15-109.

154.I found that exhibit D17 (1-9) is a “mixed statement” which contains both inculpatory and exculpatory parts: see HKSAR v Yuen Man Tung [2004] 3 HKC 274. Both the inculpatory and exculpatory parts are evidence for the purpose of determining where the truth lies.  However, it is trite law that the court, as the tribunal of fact, is entitled to attach different weights to different parts of a defendant’s out of court statement : see generally Criminal Evidence in Hong Kong, by Bruce & McCoy, at V[1203]-[1250].

155.In the defence’swritten submission, the defence submitted that the charges are against the defendant in its capacity as “the employer” (and not DB/KK). As against the defendant, the defence submitted that the prosecution has fundamentally failed to meet its high burden of proof in adducing sufficient evidence and establishing primary facts to prove both charges.

156.The defence submitted that the central issues for determination in the present case are, for both charges, whether the prosecution has established beyond reasonable doubt both in fact and in law, that the particularized acts as specified in the charges of DB/KK were specifically and duly authorized by the defendant; and such actual authority (or instructions) were given by the directing mind and will of the defendant; and when giving such actual authority (or instructions), the directing mind and will of the defendant (as opposed to DB/KK themselves) had the “specific intent” required under s21B.

157.Previously I had already made a ruling that P8, P10, P11 and P12 are admissible for the purpose of the proceedings, I shall now deal with the specific purpose that can be used by these exhibits, and I shall now give my observations and findings on the contents of these exhibits.

158.The defence submitted that as is conceded by the prosecution, it is not possible to use the contents purported agent’s own representations to establish authority, so the prosecution cannot use what DB herself said or claimed in the transcripts (P8A, 10A, 12A) to prove her authority.

159.The defence further submitted that in the present case, authority and attribution are highly relevant to both charges, and are matters the prosecution needs to prove beyond reasonable doubt, and in relation to Charge 1, the authority issue is central and direct, it is about whether firstly, the acts constituting particulars of the charge in the Summons, i.e. (i) requiring PW1 to obtain permission to run for the HKJA Chairperson position, (ii) refusing such permission, and (iii) stating that she would not remain so employed if she stood for or took up that office, allegedly done by DB and KK - are attributable to the defendant; and secondly, whether the mens rea, i.e. that the acts were “calculated to prevent or deter, an employee from exercising any of the rights”, rested with the defendant’s directing mind and will.

160.The defence stated that the prosecution relied almost entirely on the contents of DB’s conversations with PW1 to conjecture (in the guise of drawing inference) the aforesaid authority of DB from Dow Jones’ New York office being granted, thatthis is wrong as a matter of principle - logically, as it is not possible to infer authority being granted from the agent’s own (self-serving) assertions as to her authority, still less proof to the high standard of beyond reasonable doubt.

161.The defence also submitted that even if it is permissible to look at the contents, the conversation clearly indicates that DB, by virtue of her own position, does not have the requisite authority to express views on the HKJA matter on behalf of Dow Jones, as is consistent with DW1’s evidence and the fact that DB was only a “supervising manager”.

162.The defence at paragraph 39 of the written submission quoted part of the contents of the conversation of the 1^st call on 20 June 2024 to show that what was said by DB indicated that DB was unable to make any decisions immediately on the first call, and what DB had said showed that she did not have any authority from the defendant or Dow Jones unless she consulted with New York and more specifically, the executive-decision makers thereof.

163.The defence also submitted that insofar as the prosecution’s case rests on DB conveying in the 2^nd call and 3^rd call what New York decided, this intended use of these conversations with DB infringes the hearsay rule.

164.The prosecution in gist asked the court to conclude that the only possible inference is that throughout these calls and messages, the defendant was acting through DB or that DB acted on behalf of the defendant.

165.The defence stated that the prosecution had in effect admitted that they are hearsay at sections 116-117 of its submissions dated 15 December 2025, and the prosecution’s only answer to the hearsay point is to rely on the hearsay exception of them being an admission against interest.

166.The defence submitted that the prosecution must prove DB’s authority without relying on the conversations before it can constitute an exception to the hearsay rule.

167.I agree with the observation made by the defence that it is not permissible to infer authority being granted from the agent’s own (self-serving) assertions as to her authority in this case. However, “statement made to a witness by a third party are not excluded by the hearsay rule when they are put in evidence solely to prove the state of mind either of the maker of the statement or of the person to whom it was made. What a person said or heard said may well be the best and most direct evidence of that person’s state of mind” (see section 11-5 Archbold Hong Kong 2026, R v Blastland [1986] AC 41, 54)

168.My view is that the contents of these calls included the messages conveyed by PW1 to DB, and the statement made by DB during the calls. These statements could be used to show the state of mind of DB at the time of the exchange of conversation with PW1. I am of the view that the messages conveyed by PW1 to DB and the state of mind of DB is relevant to the role of DB and the issue of the approval.

169.When DB said the following in P8:

“So no one was aware that you’d put your hand up for that……I know that a couple years ago when we checked when you joined us……we checked and got permission for you to remain the secretary but between that and becoming the head of it and the public face of it is a different sort of kettle of fish for us and it would have been something that you really should have told somebody that you were doing……so Gordan and I are going to have a chat with lawyers in New York this evening”

PW1 replied “I haven’t flagged it with the company because it hasn’t finalized……it’s going to happen tomorrow and it was my plan to wait till that it was confirmed before I told the company about it.”   

DB said “it’s something you should have told us before you put your hand up for that role……we had reviewed whether you could stay as a board secretary when you joined us. We would have to review this before……when did this start…… when did you put your hand up…….how long has it been going on?”

PW1 replied that “maybe around three weeks ago”, and DB said that “we found out from some press coverage….. we’re gonna have a chat with ……the lawyers and with Elena this evening so ……I will call you tomorrow morning or send you a note overnight and we can speak tomorrow about it. When is the vote?” 

PW1 said “it will happen on Saturday afternoon…… if you need to check with legal or Eleanor about this so just keep me posted……the chair role of JA is a spokesperson……takes up the spokesperson role for the organization ……I understand this to be an issue at Dow Jones as well so I think that’s something we can discuss but I don’t have a plan to make any public statement or anything like that”

DB replied that “I’ll come back to you overnight we can talk about that first thing in my morning tomorrow.” 

170.My observation on what can be shown is that DB knew that when PW1 joined the defendant, PW1 got permission from the defendant to stay as a board secretary, and PW1 confirmed with DB that she was now running for election. DB knew that she was not the right person to decide and to give approval and she knew she needed to talk to her supervisor Gordon and also with the lawyers in New York because she believed PW1 needed to obtain prior approval which PW1 had not obtained.

171.What could also be shown is that PW1 had expressed her concerns and made a request to DB for updating PW1 the progress and discussion after DB talked to the lawyers. DB was told by PW1 the date for the vote.

172.PW1 had also sentan email to DB (see P9) telling DB that PW1 believed her work at the HKJA aligned with Dow Jones’ values.

173.When DB said the following in P10 :

“So I wanted to get back to you about what we discussed yesterday with New York……we……outside activities in general have to go through New York……and this would be definitely one of them……And then they certainly require approval from New York”

PW1 said “if I have to withdraw like that it would become the news in Hong Kong for sure”, and towards the end of the conversation DB said “well to be clear if you withdraw then you know well all right you let me know in the next hour or so because I ‘ll have to talk to Gordon shortly after it and then talk to New York.”

174.My observation of what can be shown in P10 is that regarding the state of mind of DB, she believed PW1 needed to obtain prior approval from New York. PW1 also informed her that PW1 was unwilling to withdraw, and DB knew that she needed to report to Gordon and New York.

175.For P11, save and except that PW1 was aware and had received a message in her company phone and PW1 had taken a screenshot of the message, the contents of the message cannot be relied on to prove the truth of the contents per se except that it was sent by DB because DB said in P12 “we ……didn’t have an occasion to review the fact that you were on the board until this came up but as I said in the text message would also like you to remove yourself from the board. We basically want you to have to leave the organization altogether……”

176.When PW1 said the following in P12 :

“I decided on the last day of the nomination period that I would put in my nomination…….I want to go ahead……I can’t withdraw like that.”

DB said “……I mean you have to understand that it’s not compatible with your employment with a journal, I mean it’s part of your contract says you have to seek permission for outside activities…..you can’t remain employment with us if you go ahead with this”

PW1 replied “taking up officer or membership in a union is legally protected in Hong Kong”

DB replied “……if you decide you want to go ahead then I’ll leave it for HR to get in touch with you shortly”

PW1 said “I can join a union because I am employed in the media industry……”

PW1 also said “I would like to go ahead……I know that it’s my right to remain on the board and to run for this position.”

DB replied “then I’ll have Kerene get in touch with now then to look at your contract……you know it’s in taking this role without our permission it’s in violation of the contract.”

PW1 said “……when I say that the taking up the officer role is legally protected right” DB replied “that’s what they will have to get Andy Lau and Kerene involved so let me……speak to them.”

177.My observation of what can be shown in P12 is that regarding the state of mind of DB, she knew that PW1 decided not to withdraw from the election. DB believed that PW1 needed to seek permission and without permission it was in violation of the contract and DB needed to get HR and Andy Lau involved.

178.The prosecution asked the court to conclude that the only possible inference is that throughout these calls and message, the defendant was acting through DB or that DB acted on behalf of the defendant, and this is corroborated by subsequent event in relation to KK. The prosecution submitted that subsequent to DB stating that she would have KK “get in touch”, KK did indeed get in touch just after midnight, expressly on behalf of “the company” (P13).

179.The prosecution further submitted that DB’s direct boss was Gordon Fairclough. PW1 told the court that Gordon Fairclough informed PW1 of her termination in person in Hong Kong, and that DW1 described him as part of the “Newsroom Management” team, he is copied in P13, and is directly referred to by DB in each of the 3 calls (P8, P10, P12).

180.The prosecution also submitted that at section 8 of D17(3), the defendant’s authorized representative Andy Lau had expressly told the Labour Department that KK had been acting as the defendant.

181.Regarding P13, the defence submitted that P13 is properly understood as recording that approval had not been granted for reasons of affiliation/conflict in breach of the Code of Conduct/ Standards of Business Conduct (“COC”/“SOBC”)(collectively “codes of conduct”), which KK as a HR person was obliged to put on record - and no disciplinary or adverse action followed. The defence submitted that there is no admissible evidence that KK was specifically instructed by the defendant’s directing mind and will to send P13 to PW1.

182.The defence also submitted that the prosecution’s case suffered from the lack of evidence showing what DB/KK reported back to the defendant’s executive decision makers. “Deemed knowledge” or “constructive knowledge” has no application; therefore, whatever was said by PW1 to DB cannot automatically be ascribed to the defendant or represent the defendant’s knowledge as a corporate defendant. It also follows that without DB testifying, the Court cannot be sure on the evidence whether everything said by DB to PW1 in fact represented what the defendant intended to convey to PW1.

183.For assessing P13 the email from Kerene Ko, I shall refer to D17(1-9) for further discussion. D17(2-3) is the response to request for information, and Andy Lau was duly authorized by the defendant to provide a statement to the Labour Department. Previously, I found that D17(1-9) is a mixed statement. I shall consider the whole contents of D17 to determine the truth.

184.For the purpose of discussing Charge 1, I shall first deal with the following paragraphs after I had consideredthe whole contents of D17(1-9).

185.Paragraphs 6-9 of D17 (2-3) stated the following:

“6. The Company understands that Ms. Cheng has alleged that she was terminated on the grounds of her trade union membership and activities (contrary to s21B(2)(a) Employment Ordinance, Cap.57) and/or that the Company prevented or deterred her from exercising trade union rights to become a member of a union or to participate in the activities of the union (contrary to s21B(2)(b) Employment Ordinance, Cap.57.) As set out above, the Company disputes that this is the case. To the contrary, the Company was aware that Ms Cheng served on the HKJA trade union’s board of Directors as Secretary when the Company hired her and that Ms. Cheng maintained her membership with HKJA throughout her employment. This undermines Ms. Cheng’s position that the Company took action against her because she was a member of HKJA or at any time tried to prevent her or deter her from joining or participating in a trade union.

7. In June 2024, it came to the Company’s attention that Ms. Cheng was seeking election to be Chairperson of HKJA. Ms. Cheng had not notified the Company of this fact in advance. The Company was concerned that Ms. Cheng may not have complied with the Company’s standards, including its code of Conduct which governs issues such as journalists engaging in partisan political activities and any other activities that may imply journalistic bias. Such Company standards are wholly unrelated to and not directed at trade union activity, but rather at ensuring that employees are not perceived to have bias or conflicts of interest in their reporting. It was also unclear to the Company whether being Chairperson would require activities to be undertaken by Ms. Cheng during her working hours.

8. The Company attempted to have a discussion with Ms. Cheng to discuss her proposal in more detail, but she declined to attend such a meeting. The Company accordingly wrote to Ms. Cheng to inform her that she should have sought approval in advance and that, having failed to do so, the Company would not be granting approval. A copy of the email correspondence with Ms. Cheng is attached hereto as Attachment 2.

9. The Company was disappointed that Ms. Cheng had not discussed her proposed activities with them in advance or been willing to engage in dialogue with the Company. However, the Company did not initiate any action against Ms. Cheng because of such activities, whether disciplinary or otherwise.”

186.The defence submitted that P13 cannot show that the defendant calculated to prevent or deter PW1 from exercising her trade union rights, rather it was merely a communication regarding Dow Jones’ COC/SOBC approval requirements and associated affiliation/conflict concerns by an individual HR personnel copied to PW1’s supervisors, and that P13 read in its proper context only recorded that KK, DB and GF had just learned of PW1’s previously undisclosed intentions, and KK stated that she should have asked for approval beforehand and made clear that approval “will not be received” from the company because of PW1’s behavior in this instance.

187.The defence argued that the role of DB throughout the conversation with PW1 was that according to the Code, DB (as PW1’s line manager) was not merely entitled but obliged to flag such issues to HR if they appeared to arise, and as per DW1’s evidence, HR would need to put on record that there has been a breach of the COC/SOBC. The defence submitted that the whole thrust of the June 2024 HR response was to identify and record a perceived approval/compliance issue concerning PW1’s intended external role and the use of Dow Jones affiliation/conflict of interest.

188.The defence submitted that DW1’s unchallenged evidence was that P13 was “putting it on record that approval has not been granted”, and that the approval referred to was the approval outlined in the Code of Conduct and the approval of executive management.

189.My view is that based on the contents of paragraph 7, 8 and 9 of D17(2), it is admitted by the defendant that the defendant was aware that PW1 was seeking election to be chairperson of HKJA in June 2024. The defendant also admitted that the defendant attempted to have a discussion with Ms. Cheng after the defendant was aware of PW1’s intention to elect to be chairperson of HKJA, and that the defendant wrote to PW1 to inform her that she should have sought approval in advance and that, having failed to do so, the defendant would not be granting approval, and a copy of the email from Kerene Ko to PW1 was attached as attachment 2. The contents of the attachment 2 is identical to the contents of P13.

190.It was further admitted by the defendant that the defendant was disappointed that PW1 had not discussed her proposed activities with them in advance or been willing to engage in dialogue with the defendant. My view is that to engage in dialogue with the defendant, the defendant had to assign some personnel to represent the defendant.

191.The prosecution submitted that at paragraph 8 of D17(2), the defendant’s authorized representative Andy Lau had expressly told the Labour Department that KK had been acting as the defendant.

192.I give full weight to the aforesaid admission. I find that Kerene Ko had the authority from the defendant to write P13 for the defendant to PW1 and that the contents of P13 represented the decision of the defendant.

193.I also find that when the defendant admitted that PW1 had not discussed her proposed activities with them, the word “them” referred to Kerene Ko and DB in P13 because according to the evidence of PW1, the only 2 person approaching PW1 to discuss the matter related to the issue of the approval of the defendant were DB and Kerene Ko.

194.I had set out my observations of P8, P10, P11, and P12 previously. In P8, on 20 June 2024 DB was told by PW1 that PW1 had not told the defendant about her election, and PW1 told DB during the 1^st call her intention of running the election and also the date for the election.

195.Based on the admission in D17 aforesaid, the sole and irresistible inference can be drawn is that DB being the immediate supervisor of PW1 after confirming with PW1’s intention to run for the chairperson and being aware of the fact that PW1 did not tell anyone in the company. DB will definitely inform GF and lawyer in New York, because DB knew she could not decide anything, and she knew which particular person she should inform and report to.

196.In P10, DB was also told by PW1 that she was unwilling to withdraw, and DB knew that she needed to report to Gordon and New York. In P12, DB knew that PW1 decided not to withdraw from the election. DB believed that PW1 needed to seek permission and without permission it was in violation of the employment contract and DB needed to get HR and Andy Lau involved.

197.Those 3 calls took place between 20 June 2024 and 21 June 2024 and shortly after the 3^rd call, Kerene Ko sent the email dated 22 June 2024 to PW1 and carbon copy to DB and Gordon Fairclough of “Newsroom Management”. DW1 described Gordon Fairclough as part of the “Newsroom Management Team”, and DW1 agreed that KK was under the Dow Jones umbrella, and that KK held a “mid-level management role.”

198.Taking into account of my findings of the state of mind of DB revealed in those 3 calls and the signal message and also the aforesaid admissions of the defendant in D17, I find that DB had related the message of PW1, namely PW1 was unwilling to withdraw from the election to her supervisor Gordon Fairclough, lawyers in New York, Kerene Ko, Andy Lau, and that the only irresistible inference could be drawn from the proved facts is that the aforesaid message would reach to the directing mind of the defendant.

199.I am sure that the directing mind of the defendant was informed of the intention of PW1 to run for chairperson prior to the issue of P13, otherwise the defendant would not have concerns over the election issue of PW1, and attempted to have a discussion with Ms. Cheng to discuss her proposal in more detail as admitted in the D17.

200.The contents of the Attachment 2 of D17 is identical to the contents of P13, and the defendant admitted in D17 that the defendant required PW1 to seek prior approval to pursue the role of Chairperson of HKJA.

201.I find that the defendant was well informed before the defendant decided to impose a requirement to PW1 to seek prior approval. The defendant admitted in D17(2) at paragraph 7 that the defendant was concerned that PW1 may not have complied with the Company’s standards.

202.The defendant further admitted that at paragraph 8 and 9 that the Company attempted to have a discussion with Ms. Cheng to discuss her proposal in more detail, but she declined to attend such a meeting. The Company accordingly wrote to Ms. Cheng to inform her that she should have sought approval in advance and that, having failed to do so, the Company would not be granting approval, and that the Company was disappointed that Ms. Cheng had not discussed her proposed activities with them in advance or been willing to engage in dialogue with the Company.

203.Based on the aforesaid admission, I find that the said concern of the defendant is the reason as to why the defendant impose a requirement to PW1 to seek prior approval, and the defendant had through the personnel of the defendant, namely DB conveyed such concern and message to PW1 during 2^nd and 3^rd call with PW1 and also Kerene Ko in P13.

204.Whether the defendant will be in breach of s21B(2) EO as a result of the defendant imposing a requirement to PW1 to seek prior approval before pursuing the role of Chairperson of HKJA will be discussed under the following paragraphs.

205.At paragraph 53 of the closing submission, the defence submitted that PW1’s contravention of the COC/SOBC provisions regarding affiliation and conflicts of interest was the concern expressed to PW1, thus P13 read in its proper context only recorded that KK, DB and GF had just learned of PW1’s previously undisclosed intentions, and KK stated that PW1 should have asked for approval beforehand and made clear that approval will not be received from the company because of PW1’s behaviour in this instance, and that the evidence suggested that KK was simply fulfilling her HR duty to raise and record those matter.

206.The defence submitted that according to the Code, DB was not merely entitled but obliged to flag such issues to HR if they appeared to arise and per DW1’s evidence, HR would need to put on record that there has been a breach of the COC/SOBC, and the whole thrust of the June 2024 HR response was to identify and record a perceived approval/compliance issue concerning PW1’s intended external role and the use of Dow Jones affiliation/conflict of interest.

207.DW1 was asked by the defence if no action was taken, as a matter of practice of the company, why HR, in this case KK, still needed to say to the employee there was no approval, and DW1’s answer was putting it on record the approval had not been granted.

208.However, when the prosecution cross examined DW1 and asked DW1 about the authority of KK, DW1 could only confirm that KK had authority to sign the dismissal letter and the employment letter of PW1 but DW1 did not know whether KK had authority to write on behalf of the company and said to PW1 that PW1 would not receive the company’s approval to pursue her role as chairperson.

209.I attached no weight to the evidence of DW1 when she said that the purpose of P13 was to put on record, because DW1 had no knowledge whether KK had authority from the defendant to write P13. I find that DW1 would not be able to comment the actual purpose of P13, and I reject the submission made by the defence that the evidence suggested that KK was simply fulfilling her HR duty to raise and record those matter as suggested by the defence at paragraph 55 of the closing submission.

210.At paragraph 53 of the defence closing submission, the defence submitted that PW1’s contravention of COC/SOBC provisions regarding affiliation and conflict of interest was the concern expressed to PW1.

211.On affiliation, the defence submitted that there is ample and clear evidence that PW1 permitted her WSJ position to be affiliated with HKJA prior to 20 June 2024, see D5, D6 (Facebook posts in 2022, 2023 where PW1 was expressly named a reporter of WSJ), D7, D8 (HK01 publication with a headline “Wall Street Journal reporter Cheng Kar-yue runs for chairperson…” dated 11 June 2024, and that on conflict of interest, DB was conveying a concern over conflict of interest to her.

212.The defence submitted that PW1 was taken in cross-examination to the clause in the COC which provides that no Dow Jones employee should permit his or her Dow Jones affiliation to be noted in any outside organization’s materials or activities without the approval of the chief executive officer or general counsel, unless exceptions apply, and that PW1 also confirmed many clauses in the SOBC prohibiting actual or the appearance of conflict of interest.

213.Under the topic of proper interpretation of s21B(2) EO, the defence submitted that the prosecution’s argument effectively turns s21B into an “absolute right” without any qualifications. The defence submitted that the section itself was clearly created to protect unjustified interference with the right of the employee to participate in trade union activities which related to employment issues, and that it does not create an “absolute right”.

214.The defence submitted that where the employee’s conduct is in clear breach of employment contract but is unconnected with employment issues, s21B cannot be used to punish the employer.

215.The prosecution submitted that HKJA is a trade union registered under the Trade Unions Ordinance see P16. To be the president or chairperson of such a trade union board is “to be or to become a member…an officer of a trade union”, the subject of as s21B(1) right, and that the only correct interpretation of s21B is the creation of an offence which only punishes unjustified interference with the employee’s trade union rights that related to his employment welfare.

216.The prosecution submitted that for an employer to require the employeeto obtain its permission to take up office can be a deterrent; to forbid, or to threaten dismissal if the right is exercised is an act calculated to deter its exercise.

217.s21B(1), (2) & (3) stated that :

(1)  Every employee shall as between himself and his employer have the following rights -

(a)   the right to be or to become a member or an officer of a trade union registered the Trade Unions Ordinance (Cap. 332);

(b)   Where he is a member or an officer of any such trade union, the right, at any appropriate time, to take part in the activities of the trade union;

(c)   The right to associate with other persons for the purpose of forming or applying for the registration of a trade union in accordance with the provisions of the Trade Unions Ordinance (Cap. 332)

(2)  Any employer, or any person acting on behalf of an employer, who -

(a)  prevents or deters, or does any act calculated to prevent or deter, an employee from exercising any of the rights conferred on him by subsection (1); or

(b)  terminates the contract of employment of, penalizes, or otherwise discriminate against, an employee by reason of his exercising any such right,

shall be guilty of an offence and shall be liable on conviction to a fine at level 6.

(3)  In this section-

Appropriate time means, in relation to an employee taking part in any activities of a trade union, time which either

(a)  is outside his working hours; or

(b)  is a time within his working hours at which, in accordance with arrangements agreed with or consent given by or on behalf of his employer, it is permissible for him to take part in those activities;   

Working hours means, in relation to an employee, any time when, in accordance with his contract with his employer, he is required to be at work.

218.My view is that save and except under subsection (3)(b), the employee needed to obtain the consent or reached an agreement with the employer, there is no such requirement that the employee need to obtain the approval of the employer if it is outside the working hours.

219.In the present case, PW1 had informed DB that the election took place on Saturday afternoon. Throughout all the calls between PW1 and DB and also the representation made by the defendant in D17, there is no allegation or suggestion that the election is within the working hours of PW1, and by reasons of that requirement the defendant required PW1 to seek approval from the defendant.

220.The defendant admitted at paragraph 7 of D17 that it was also unclear to the defendant whether being Chairperson would require activities to be undertaken by Ms. Cheng during her working hours. This admission could show that the concern was related to matters after the successful election of chairperson of PW1 and related to the activities that the defendant was prematurely decided to interfere with the legally protected right of PW1 under s21B EO.

221.My view is that the defendant’s concerns was clearly stated and admitted in D17(2) at paragraph 7 for some other reasons unrelated to working hours, and that the defendant’s decision on the issue of seeking approval was motivated by their concerns which was founded on their wrongful and unjustified application of code of conduct (COC/SOBC) on PW1.

222.I find that the defendant required PW1 to obtain prior approval before PW1 could run for election of chairperson of HKJA is an unjustified deterrent of an employee’s rights under s21B. Because if the employer is allowed to use the company standard or policy to monitor the exercise of the rights of the employee under s21B, the employee’s legal right under s21B would be interfered by the power and wishes of the employer arbitrarily, and the result is that the employer’s power and wishes is being put above the law.

223.In the present case, the defendant alleged that PW1 may not have complied with the Company’s standards, including its Code of Conduct which governs issues such as journalists engaging in partisan political activities and any other activities that may imply journalistic bias.

224.PW1 run for election of Chairperson of HKJA on a specific date if the date is not within her working hours with the defendant is a legally protected right under s21B(1)(a) & (b) without the needs of the agreement from the defendant, namely the right to be or to become an officer of a trade union and the right, at any appropriate time, to take part in the activities of the trade union.

225.The defence submitted that in the Code of Conduct D2(1-6), it is stated that “No Dow Jones employee should permit his or her Dow Jones affiliation to be noted in any outside organization’s materials or activities without the approval of the chief executive officer of Dow Jones or the general counsel of Dow Jones unless the employee serves as a representative of Dow Jones or unless the affiliation is noted as part of a broader description of the employee’s identity.

226.I do not accept that the instances quoted by the defence in the closing submission at paragraph 53 and D5, D6, D7 and D8 can justify the stance taken by the defendant to require PW1 to seek approval. I find that the way PW1 was being described is only a broader description of the employee’s identity.

227.My view is that if PW1 was found by the defendant in violation of the terms of the employment contract by reasons of any acts and/or activities committed by PW1, the defendant was entitled to classify a case of breach of contract and terminated the employment contract or summarily dismissed PW1. However, the defendant did not initiate any action against PW1 as admitted by the defendant in D17(3) at paragraph 9. I do not find the alleged breach or concerns of the defendant could justify the defendant to impose a requirement on PW1 to obtain prior approval for election.

228.The defence also submitted that there is a jurisdictional difficulty in relation to Charge 1 : see D’s Stay Skeleton at sections 100-104, D’s Reply Skeleton at sections 27-33 and D’s Supplemental Submission on Abuse of Process at sections 67-68. The defence argued that there is no express statutory extension of territorial reach for s21B(2) EO. The staring point remains the ordinary territorial principle in criminal law.

229.The defence also argued that DB was outside Hong Kong when the impugned conduct occurred, and that the question is whether the prosecution has shown a substantial measure of the activities constituting the alleged offence occurred within Hong Kong.

230.The defence submitted that the person allegedly speaking to PW1 in the covert recordings was in fact outside of Hong Kong, and PW1 knew this when those critical calls occurred, and that the court should consider carefully whether that acts done by non Hong Kong nationals on non-Hong Kong territory is justiciable in the courts of Hong Kong.

231.The defence submitted that the Employment Ordinance is not intended to regulate the conduct of non-Hong Kongers who were outside Hong Kong at the time of the alleged conduct.

232.The prosecution submitted that it is well-settled in Hong Kong that a telephone call from outside of Hong Kong to a person in Hong Kong is ”a form of instantaneous communication made at one time but in two places, one of those places being Hong Kong.” See HKSAR v Hon Sui Ho Mandy [2009] 3 HKLRD 452 (CA), and that this application of law does not offend against the principles of comity. As Stock VP (as he then was) explained in HKSAR v Krigger [2014] 3 HKLRD 404 CA) :

“Acts done outside the jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if the [actor] had been present at the effect.”

233.I agree with the submission made by the prosecution that the same logic applies in this case to the facts of DB’s telephone and Signal calls and messages in P8 and P10 to P12 and KK’s email P13.

234.I find that the particulars of charge 1 relied on by the prosecution includes requiring PW1 to obtain permission to stand for the office of Chairperson of the Hong Kong Journalists Association, which permission would be refused is already an act calculated to prevent or deter her from exercising her right to become an officer of a trade union and that by reasons of the admission of the defendant in D17, the only irresistible inference could be drawn is that the defendant through DB put a threat to PW1 by stating that PW1 would not remain so employed if she stood for or took up that office. Such threat added to the extent of deterrence of the defendant imposed on PW1.

235.I also find that to prove Charge 1, the said threat put by DB to PW1 did not need to be realized subsequently and that by imposing the requirement of obtaining prior approval before election, the only irresistible inference could be drawn from the proved fact is that the defendant intended to prevent or deter PW1 from exercising her right to take part in the activity of election of HKJA.

236.By reasons of the aforesaid, I find that the prosecution has proved Charge 1 beyond reasonable doubt, and I therefore convicted the defendant on Charge 1 as charged (ESS35334/2024).

237.Regarding Charge 2, the prosecution submitted that the prosecution is required to prove the following elements, namely a contract of employment between an employer and an employee which is not at issue in this case, and that it is an admitted fact that the defendant terminated PW1 by its letter P14 to PW1 dated 17^th July 2024, expressly signed by KK “for and on behalf of Dow Jones Publishing Company (Asia), Inc.” as its “Director, International People Specialist”, and there is no dispute that the termination by the defendant of PW1’s employment was effected by the letter P14.

238.For the element of “by reason of the employee exercising a right in s21B(1), the prosecution submitted that the court will look first at the context and the contemporaneous evidence of motive for this “reason element”. The prosecution submitted that the context and prime reason for this termination was given by DB and KK’s in their prior statements to PW1, in particular that her “going ahead with “ the chairmanship of the HKJA was incompatible with her employment with the defendant so that she “can’t remain employed with us” if she did and in PW1’s oral evidence of her conversation with GF and KK that morning. The prosecution submitted that she subsequently continued to stand for office and was duly elected.

239.The prosecution relied on the documented statements of DB and KK in relation to Charge 1. The prosecution submitted that the conversation recorded in P12A strongly suggested that this decision was taken overnight on 20^th 21^st June in consultation with Dow Jones’s New York lawyers, leaving KK and Andy Lau to complete the process in Hong Kong while Dow Jones New York staff were to deal with “the fallout” from the termination and its optics.

240.The defence submitted that the defence’s case on Charge 2 is that PW1’s dismissal was a genuine redundancy, taken as part of the 2024 restructuring, and that the evidence plainly raises a reasonable doubt so the prosecution has not proved PW1 was terminated by reason of her trade-union activity.

241.The defence submitted that the defendant made four key points. Firstly, the existence of a company-wide redundancy exercise in and around 2024 was not in dispute. Secondly, there is substantive positive evidence that PW1’s termination was a genuine case of redundancy. Thirdly, the prosecution has not credibly challenged or contradicted D16 and DW1’s evidence that she had verified the information therein to be accurate. Fourthly, the defence invited the court to consider the inherent probabilities and commercial common sense of the case.

242.The defence also submitted that the threshold for the prosecution to prove, relying on inference, that PW1 was terminated solely because of the HKJA Chairperson is high. It cannot be the position that once an employee is part of a Trade Union, that person can never be terminated for other non-trade union related reasons even if the timing was close to the employee’s joining the trade union, or that any such termination must necessarily be attributable to the Trade Union - otherwise all employees joining a trade union would be “immune” from termination even if it were unrelated to his trade union activities.

243.The defence argued that the prosecution claims to rely on “inference”. Therefore, the central question is whether the circumstantial evidence shows an irresistible link or causal connection between two events, namely the HKJA issues explored with PW1 in 20^th to 22^nd June 2024 and her termination on 17 July 2024 - such that the inevitable inference is that PW1’s termination was for her HKJA Chairperson position. The defence submitted that there is no such evidence; the only “evidence” is the fact that these two events took place within the span of a month.

244.The defence further submitted that without anything bridging this gap, the court is left with simply a termination occurring approximately 1 month after the HKJA Chairperson issues was raised, and that these two events, having occurred as a matter of fact, cannot meet the high threshold required to draw an inference in the criminal context. The defence further submitted that the prosecution is effectively inviting the court to use “suspicion” or “suspicious circumstances” as a means of proof.

245.I agree with the observation made by the defence that PW1’s termination in July 2024 must be assessed against the background of the restructuring process that was already underway, rather than in a vacuum.

246.The defence submitted that redundancy is plainly a true reason for PW1’s dismissal which the prosecution must exclude beyond reasonable doubt. This observation is correct because if the defence’s version is true or may be true, namely redundancy is the true reason for PW1’s dismissal, then the defense had raised sufficient doubt to the prosecution case, and the defendant on Charge 2 must be acquitted.

247.The defence submitted that DW1’s evidence provided clear support for a real redundancy exercise affecting Hong Kong in 2024, inter alia, that the strategy in 2024 was to relocate the centre of reporting from Hong Kong to Singapore; that this decision was made at around the end of the first quarter of 2024, since advance planning is required to ensure that work is not interrupted by a redundancy exercise; that P14 was a standard redundancy termination letter; and that clause 5 therein reflected the ex gratia payment associated with redundancy.

248.The defence also submitted that DW1’s evidence was that D16 was prepared by the People Connect Associates within the administrative HR team, and that she had personally verified the information in them against the company’s records.

249.The defence further submitted that a further objective indicator of genuine redundancy is the undisputed fact that PW1’s role was not replaced in Hong Kong and the same applies to the other redundancies in D16, and that if the position itself was being removed as part of a reorganization, and not a “sham redundancy” where the same role would simply be recreated for someone else. I agree with the defence’s observation.

250.PW1’s own understanding as of 14 November 2024 in her statement with the LD at paragraph 26 stated that “I understand that the Company has not recruited anyone to replace me after my departure”. The defence submitted that on 21 January 2026 during trial, PW1 still could not say that anyone had replaced her in her role.

251.The defence's case is that the strategy was to shift the centre of gravity of newsroom operation to Singapore. DW1’s evidence explained, a phased or staggered redundancy process is to be expected, given the business need to maintain continuity and minimize interruptions. The defence stated that D16 showed that redundancies in 2024 continued even after PW1’s termination, which is inconsistent with the prosecution’s portrayal of redundancy as a one-off process.

252.The prosecution relied on PW1’s evidence that she was assured her position was safe, that her sector was important, and that there would be no more layoffs, and that PW1 said that WSJ’s editor in chief sent a company-wide email to address the layoffs in Hong Kong and said in that email that China’s EV industry is one of Asia’s biggest stories. The defence submitted that they were inadmissible hearsay which I agree and I will not attach any weight regarding this part of evidence.

253.DW1 stated that HR advised all managers not to commit that there will not be any more redundancies, since they cannot predict what might happen, and redundancies happen in many areas of the business throughout the year. I accept DW1’s explanation because her explanation accords with business common sense.

254.I also agree with the observation made by the defence that even if coverage of the China EV industry is important to Dow Jones, that is not inconsistent with PW1 being made redundant, as DW1 testified, the management team determined that they wanted Singapore to be the primary location for newsroom activity, and the China EV reporting role had been moved to another location i.e. Singapore.

255.The defence submitted that the far more likely inference is that PW1’s role was selected as part of that restructuring, and that the termination followed from that decision rather than being a retaliatory reaction to the HKJA issue.

256.The defence further submitted that the central question is whether the circumstantial evidence shows an irresistible link or causal connection between two events, namely, the HKJA issues explored with PW1 in 20 to 21 June 2024 and her termination on 17 July 2024 - such that the inevitable inference is that PW1’s termination was for the reason of her HKJA Chairperson position.

257.The prosecution submitted that the termination of PW1 was not made in accordance with the process of redundancy seen in D16 and D17. The 7 employees who were terminated on grounds of redundancy were all terminated in one batch on 1^st June 2024 and had been given one month’s notice back in May, and PW1 received no such notice in May nor even on 1^st June, and her termination did not take place until July and was then immediate, with payment in lieu of notice.

258.My view is that the employer is perfectly entitled either to give one month’s notice or payment in lieu of notice. I agree with the defence’s observation that payment in lieu of notice is in any event a statutory right afforded to all employers in Hong Kong. I accept DW1’s evidence that redundancy planning decisions depend upon management’s assessment of, inter alia, how to implement headcount reductions without interrupting work. This accords with business common sense which I cannot ignore.

259.As to redundancy, the prosecution does not dispute that there was a company-wide redundancy plan which led to the termination of many of PW1’s colleagues in Hong Kong on 2^nd May 2024 which is also supported by PW1’s evidence.

260.Against this background and my aforesaid observation, I am of the view that the defence version stated that PW1’s position was removed as part of the 2024 restructuring exercise and not simply replaced in HK may be true, and the defence had raised sufficient reasonable doubt to the prosecution case on Charge 2. I therefore acquitted the defendant on Charge 2 (ESS35335/2024).

Mr. Nigel Kat, Senior Counsel, leading Mr. Azan A Marwah and Mr. Nicklaus J Pannu-yuon, instructed by Messrs. Lee Law Firm, for the Prosecution

Mr. Benson YM Tsoi, Senior Counsel, leading Ms. Cherie CL Ho and Mr. Joshua Z Wang instructed by Messrs. Dentons Hong Kong LLP, for the Defendant

Appendix I

Ruling on without prejudice emails

1.  For the purpose of the Stay Application made by the defence, the defence seeks to rely on the without prejudice emails between the parties’respective legal representatives which was marked C1 from page 178-244 (“WP emails”) in the Defendant’s Bundle for Stay Application.

2.  The defence argued that the defendant is not barred from without prejudice privilege from relying on the WP emails to establish abuse by PW1 in the Stay Application. The prosecution objected.

3.  My ruling is that WP emails can be used against PW1 and admitted in the present proceedings for non-hearsay purpose. The following is my reasons.

4.  The prosecution submitted that the starting point in law for the admissibility of inter partes communications made without prejudice is that they are privileged unless exceptional circumstances arise to justify their disclosure, in light of the strong public interest to encourage the amicable settlement of disputes through frank and open negotiations : R v K [2010] Q.B. 343 at para 67-68 :

“67. If evidence of statements made in the course of “without prejudice” discussions is not admissible, therefore, it must be because there exists a rule of law to that effect. The arguments for the existence of such a rule is that public policy requires that statements made in the course of negotiations with a view to resolving disputes should not be capable of being used against the maker in proceedings of any kind. If that were not the case, it is said, no one would be willing to negotiate frankly and openly for fear that what he said might be used against him on another occasion……

68. The need to be able to speak freely in the expectations that what is said will remain confidential is also the basis for legal professional privilege and the importance attached to it in law is demonstrated most strikingly by the well-known case of R v Derby Magistrates’ Court, Ex p B [1996] AC 487……”

5.  The prosecution submitted that R v K is also the authority for one narrow, particular exception to the rule when in criminal proceedings commenced by the State, that is so long as that evidence is admissible, the shield of privilege would usually be pierced, and that the protection of without prejudice communications must not be employed to hide “crime or unambiguous impropriety” : R v. K para 65

“65 It is clear from the judgments in Muller v Linsley Mortimer [1996] PNLR 74 and the Unilever case [2000] 1 WLR 2436, that, even if the precise scope of the exception is uncertain, the rule will not be allowed to operate as a cloak for crime or other unambiguous impropriety. However, the authorities support the view that that exception is to be applied with considerable caution and only where the person making the statement has abused the protected nature of the occasion, for example by making threats……”

6.  The prosecution further submitted that in the present case, the defendant is the counterparty of PW1 in the without prejudice communications at issue. Neither the defendant nor PW1 have the right to breach the privilege against each other.

7.  The prosecution stated that in any event there is no “crime or unambiguous impropriety” that would have justified any unilateral breach of privileges.

8.  The defence however argued that in R v. K, it was the Crown that was attempting to rely on the without prejudice materials, and the situation is different from the present case where the defence is seeking to rely on relevant without prejudice materials namely WP emails to defend itself against criminal proceedings including the right to stay abusive proceedings.

9.  The defence submitted that the public interest in upholding the right to a fair trial must be even stronger than that in prosecuting crime, such that the admissibility of relevant WP material for defence use is a fortiori.

10.  The defence submitted that without prejudice privilege is simply not a known concept in criminal law proceedings, and without prejudice privilege does not apply in criminal proceedings.

11.  The defence further submitted that the test is that firstly the defence need to establish the relevancy of WP emails to the issue, namely the abuse of process.

12.  The defence argued that PW1 would not have initiated the criminal proceedings if she had been sufficiently paid, therefore WP emails are relevant to show PW1 made extortionate demands in negotiations, including an indirect ulterior motive of financial gain.

13.  Once WP emails are relevant to the issue of the abuse of process, then they are simply admissible, and it would be a very strange and odd situation where the court can exclude relevant materials or evidence when the defence is trying to put them in. There is simply no such discretion for the court to exclude them.

14.  The defence further argued that for the court to rule whether the defence is able to rely on WP emails, a three-stage test is sufficient for the present purpose.

15.  Firstly, relevance to the facts in issue, namely motive and abuse of process, and the prosecution is unable to say that WP emails are not relevant to the issue. Second test is that whether there is an exclusionary rule that excludes without prejudice communications. Thirdly, whether the court has exclusionary discretion to exclude these communications.

16.  The defence stressed that the court had no discretion to exclude what the defence wants to put in if it is relevant unless there are some exclusionary rule.

17.  The common law has never recognized a power to exclude defence evidence which is relevant, and the common law discretion bounded on the duty of the judge or magistrate to ensure that every accused person has a fair trial.

18.  The defence stated that R v. K concerns admissions of a defendant being used against him in a subsequent criminal trial. Because the court was dealing with the prosecution evidence, therefore the balancing exercise of public interest is required to ensure that the accused had a fair trial.

19.  The defence submitted that in the present case, since we are not dealing with prosecution evidence, so the test about unambiguous impropriety which is a balancing factor in deciding the discretion has no place in this application.

20.  The defence submitted that R v. K did not leave the question open, because R v. K was talking about if the crown, or the prosecution, is using the without prejudice communication as an admission against the defendant, then the extra layer of the court’s discretionary, exclusionary power comes in because it is against the defendant, used by the prosecution, and that is precisely why R v. K then said, in that situation, the court needs to look at whether to exercise its discretion to exclude that evidence.

21.  The defence reiterated that as general principle, it is well established that a judge, as part of his inherent power and overriding obligation in every case to ensure that the accused receives a fair trial.

22.  During the oral submission, the prosecution commented on the three-stage test suggested by the defence. The prosecution’s stance is that they accepted that the first test should be relevance. However, the prosecution disputed the second and third test raised by the defence.

23.  The prosecution submitted that there is an exclusionary rule where the parties are the same and have engaged in without prejudice communications, and the authority that deal with it is R v. K.

24.  The prosecution further submitted that even R v. K is different and may be distinguished because it does not deal with without prejudice discussions which do not amount to admissions of a crime or abuse, and that the court still carries out the balancing exercise between the competing interests.

25.  The prosecution made it clear that there is no authority where it is a private prosecutor who has an interest in preserving the without prejudice nature of the communications and that is the core difference.

26.  In the written submission made by the prosecution at paragraph 71 and 72, the prosecution stated that R v. K is authority for one narrow, particular exception to the rule when in criminal proceedings commenced by the State. The prosecution stated that so long as that evidence is admissible, the shield of privilege would usually be pierced, and that one reason for this exception is the protection of without prejudice communications must not be employed to hide a “crime or unambiguous impropriety.”

27.  The prosecution argued that the same is not true for a dispute that gives rise to both civil and privately-brought criminal proceedings, such as the present case and that neither the defendant nor PW1 in the present case have the right to breach privilege against each other.

28.  The prosecution submitted that one of the key questions that this court needed to decide is whether or not without prejudice privilege has any place in criminal proceedings brought by a private prosecutor.

29.  The court also needed to decide whether or not on a balance of the two public interests, namely in protecting confidentiality and in the prosecution of a crime whether the interests of justice is served by exclusion or inclusion of the WP emails.

30.  The main issue suggested by the defence is that no case ever said the court has the power to exclude defence evidence at all when they are relevant. Because the exclusionary discretion arose from the obligation to ensure the defendant’s right to a fair trial, therefore, it is the power to exclude evidence against him but not the power to exclude evidence that he wants to use to exonerate himself.

31.  The defence commented that the approach the prosecution invited the court to take would be both contrary to basic legal principles, unprecedented and wrong in law.

Discussion

32.  In a criminal trial, defendant’s right to a fair trial is fundamental.

33.  The defence submitted that WP emails is relevant to the central issues raised by the defence in the Stay application. I agreed and I find that WP emails are relevant to the allegations raised by the defence against PW1 in the Stay application.

34.  The prosecution submitted that one of the key questions that this court needed to decide is that whether or not without prejudice privilege has any place in criminal proceedings brought by a private prosecutor.

35.  I agree with the defence submission that without prejudice privilege is simply not a known concept in criminal law proceedings, and without prejudice privilege does not apply in criminal proceedings.

36.  However, even if without prejudice do apply in this case, the question raised by the prosecution is two fold. My view is that WP emails to be used by the prosecution against the defendant and WP emails to be used by the defendant to attack the prosecution witness are founded on different legal principles.

37.  In the present case, the focus is on the defendant to achieve a fair trial. With this in mind, I decide the question raised by the prosecution that if without prejudice privilege has a place in criminal proceedings, whether or not on a balance of the two public interests, namely in protecting confidentiality and in the prosecution of a crime whether the interests of justice is served by exclusion or inclusion of the WP emails in the present case.

38.  My view is that the public interests in protecting the fundamental right of the defendant in a criminal trial, namely to ensure a fair trial will definitely outweigh the protecting of confidentiality of the terms of negotiation which had not yet been concluded.

39.  I also agree with the observation made by the defence that once WP emails are relevant to the issue of the abuse of process, then they are simply admissible, and it would be a very strange and odd situation where the court can exclude relevant materials or evidence when the defence is trying to put them in.

40.  I also agree with observation made by the defence that there is simply no such discretion for the court to exclude relevant materials or evidence raised by the defendant, and if it does have such discretion, I will exercise discretion to include them instead of to exclude them.

41.  I therefore made a ruling that WP emails can be used against PW1 and admitted in the present proceedings for non-hearsay purpose.

Appendix II

Ruling on Stay of Proceedings

1.  The following is my reasons for the ruling of the defence’s application for a permanent stay of proceedings.

The Grounds of Application

2.  The defence applied for a permanent stay of proceedings on the ground of abuse of process. The defence summarised this ground into three points in the written submission :-

3.  The First Point – the private summonses should be quashed / set aside by reason of non-compliance by PW1 with her duty of candour (duty of full and frank disclosure) in failing to disclose any of the events after PW1’s employment termination in her ex parte application for these summonses.

4.  The Second Point – the evidence shows PW1’s bringing of the private prosecution was clearly motivated by an improper purpose.

5.  The Third Point – the other factors which collectively should cause the Court to stay the proceedings on the ground that the summonses are “abuse of process or otherwise improper”, including:- (i) conflict of interest vis PW1 employing the same lawyers to represent her in her civil extortionate demands against the Company and this private prosecution; (ii) the fact that these lawyers may be witnesses themselves to these demands; and (iii) the fact that these lawyers may themselves be party to the non-compliance of PW1’s duty of full and frank disclosure.

6.  Further, PW1 also breached her duty of candour in relation to the general issues, by (i) referencing workplace discrimination at §§14-15 of the complaint, which were never substantiated in evidence, thereby creating the false impression that the HKJA issue had a continuous impact on defendant’s treatment of PW1 right up to the point of her termination, (ii) non-disclosure in relation to redundancy matters which were presented to the Labour Department (“LD”), and (iii) non-disclosure regarding the Speaker being outside jurisdiction at the time of 21-22 June 2024.

Summary of Submissions by both parties

The Defence submission

PW1’s breach of her duty of candour

7.  The defence submitted that for non-compliance by PW1 with her duty of candour (duty of full and frank disclosure) to be made out, it needed not be established that the non-compliance was deliberate or motivated by malice, nor that the undisclosed information would have made a difference to the Court’s decision. All that is required is that:-

8.  PW1 did not comply with her duty to disclose all “material which is potentially adverse to the ex parte application, or might militate against the grant, or may be relevant to the judge’s decision, including any matters which indicate that the issue of a summons might be inappropriate.”

9.  And that “a summons should be quashed if it is shown that the inaccurate and/or non-disclosure by the prosecutor might, rather than would, have made a difference to the judge’s decision”  – this means a difference to the Judge’s exercise of his judicial function – not only as to whether to issue the summonses, but also whether to call upon the proposed defendant to attend and make representations.

10.  The defence submitted that the applicable principles are set out in the CA authority of Kwok Tak Ying v HKSAR [2021] 4 HKLRD 841 (CA), which approves the English decision of R (Kay and another) v Leeds Magistrates’ Court [2018] 4 W.L.R. 91.

11.  The defence observations are as follows:-

(1)  As the application for theissue of summonsesis ex parte, the private prosecutor and his/her lawyers are under a duty of candour in presenting his/her case (Kay §§24, 37, Kwok Tak Ying §53).

(2)  It is said that “the grant of summonses, typically conducted ex parte, can have far reaching consequences. Compliance with the duty of candour is the foundation stone upon which such decisions are taken… its importance cannot be overstated” (Kay §38).

(3)  This duty of candour is described as being “one of “full and frank disclosure” which necessarily “includes a duty not to mislead the judge in any material way” and which requires the disclosure to the court of “any material which is potentially adverse to the application” or “might militate against the grant” or which “may be relevant to the judge’s decision, including any matters which indicate that the issue … might be inappropriate”… “In effect a prosecutor seeking an ex parte order must put on his defence hat and ask himself what, if he were representing the defendant or third party with a relevant interest, he would be saying to the judge, and, having answered that question, that is what he must tell the judge.” (Kay §§25-26, c.f. Kwok Tak Ying §53). The position is therefore similar to the duty of disclosure in an ex parte injunction application in the civil context.

(4)  A failure on the part of the applicant to comply with such a duty may well amount to an abuse of process (Kwok Tak Ying §53).

(5)  As to the consequences of non-compliance, case law suggests that if it can be shown that the inaccurate and/or non-disclosure might have made a difference to the judge's decision to issue the summons, it ought to be quashed (Kay §§27-28). This refers to a difference in the Judge’s exercise of his judicial function (Kay §20) – comprising not only whether to issue the summons, but also whether the Court should first call upon the proposed defendant to make representations before deciding whether a summons is appropriate (Kay §22(6), Kwok Tak Ying §35(6)).

(6)  There is no requirement that the non-disclosure need be deliberate for it to cause the setting aside of the summons, see R. (Morjaria) v Westminster Magistrates’ Court [2024] 1 Cr. App. R. 19, where a non-deliberate breach of the duty was "a grave and weighty factor” in the setting aside, upheld by the KB Court (§§30, 47), and Jiang Enzhu v Lau Wai Hing Emily [2000] 1 HKLRD 121 at p.140.

12.  The defence stated that matters in relation to which the applicant owes the duty of candour are wide, such that it is “inappropriate to attempt to lay down an exhaustive catalogue of matters”, and the magistrate “must be able to inform himself of all relevant facts” (Kay §21). The areas in which the applicant has a duty of candour include at least:-

(1)  The potential presence of an improper ulterior purpose, potential abuse of process, and whether the summons would otherwise be improper, considering the whole of the relevant circumstances (Kwok Tak Ying §§35(2)-(3), & the decision in Morjaria); and

(2)  Matters going to the establishment of a prima facie case of the offence(s) in question, which is not a low threshold, and requires the magistrate to “apply a judicial mind to the materials before him and examine them critically” and “conduct a rigorous analysis of the relevant legal framework to ensure that all elements of the alleged offence are established” (Kwok Tak Ying §§35(1), 45).

13.  The defence submitted that, PW1 has seriously breached her duty of candour across both areas – having not drawn almost any of the material facts potentially adverse to her case to the Court’s attention at the ex parte stage.

14.  The defence submitted that the potential “presence of an improper ulterior purpose” was clearly a relevant factor for the Court to consider.

15.  The defence submitted that there was a complete failure by PW1 to bring to the Court’s attention any of the post-termination matters relevant to her improper/ulterior motive in bringing these proceedings, in relation to her HK$3m demand which must be disclosed (Kwok Tak Ying §§35(2)-(3)).

16.  In order to perform this “judicial function” the Court can only rely on the materials presented by the private prosecutor at the ex parte stage. In this case, the “potentially adverse materials” which PW1 failed to disclose to the Court include the following :-

17.  The “without prejudice” communications between PW1 (via her lawyers) and defendant’s representatives where her demand of HK$3m was made and the timing in which such demands were made, including the 48 hours leading up to her ex parte application.

18.  The defence submitted that the HK$3m demanded on 23 September 2024 is extortionate, because the figure is around 15 times the value of PW1’s later Labour Tribunal (“LT”) claim of HK$193,170.07 and 48.4 months of PW1’s salary - going far beyond the scope of PW1’s civil claim, statutory caps, or any orthodox measure of loss.

19.  The defence argued that this evidence was at the very least “relevant” to the issue of motive / improper purpose (which in turn was a matter the Court was duty bound to consider). The fact that these communications were undisclosed at the ex parte stage therefore meant PW1 failed to put all relevant evidence before the Court.

20.  The defence also submitted that the contents of PW1’s statements / representations to the LD and LT were all relevant evidence for the Court to consider in conjunction with the above. Because the contents of these documents would have revealed that she did not disclose her demand of HK$3m against the Company at any stage; and she may have misled the LD/LT when she declared she did not intend to settle out of Court or participate in mediation.

21.  The defence also submitted that the following facts could also show that PW1 had ulterior purpose to institute private prosecution, which included the following.

22.  PW1 only reported the matter to LD/LT after the Company had refused to accede to her HK$3m demand, and that PW1 waited for months to report the matter, as her attempts to obtain that sum from the Company failed.

23.  PW1 held press conferences in July, and then in November 2024 when she filed her criminal complaint to LD, escalating the matter with press conferences, to try to force the Company back to the negotiating table. She failed to disclose to the Court that she held these press conferences in relation to the employment dispute.

24.  The Court was not made aware of the contents of her November press conference being untrue and/or inconsistent with her statements to LD/LT and inconsistent with her “without prejudice communications”.

25.  PW1 admitted in evidence before this Court that her demand of HK$3m was intended for both of herself and HKJA for damage to their “reputation” (when HKJA was not even a party to the employment dispute between PW1 and the defendant).

26.  The defence submitted that PW1’s intention to get money for HKJA from the incident is an ulterior purpose i.e. a purpose which is not intended by the protection offered under s.32P of the Employment Ordinance and was completely out with its purpose.

27.  The defence submitted that each and every one of the above was relevant evidence for the Court to consider the issue of whether the summonses were initiated with an ulterior purpose and whether they should be allowed to be issued at all.

28.  The defence stressed that the irresistible inference is that the criminal proceedings were initiated only because the defendant refused to pay HK$3m, which was used to put pressure on the defendant to settle - these are all improper/ulterior motives that can potentially render the prosecution abusive.

29.  The defence also submitted that PW1 failed to disclose the communications between herself and the LD/LT – comprising (i) the 3 statements she made to the LD; (ii) emails with the LD; and (iii) her statement made to the LT.

30.  The defence stated that these documents show PW1 did not disclose her HK$3m demand against the defendant at any stage, further indicating the potential existence of an improper motive that PW1 was keen to conceal from the authorities.

PW1’s Improper Purpose

31.  The defence submitted that to show that the private prosecution was motivated by an improper purpose, the Court will have to consider that PW1’s HK$3m demand was both extortionate and extra-legal. It forms the crucial backdrop to the commencement of this private prosecution, as it reveals that she had all along acted for ulterior purposes in relation to this dispute.

32.  The defence also submitted, the timeline of events that have occurred showing that PW1 used the threat of criminal proceedings as leverage to try to force defendant to meet her demands. The ultimate deciding factor in PW1’s launching of the private prosecution was therefore not an assessment of public interest, but the failure of her private negotiations and the fact that defendant did not eventually meet her demands within 48 hours of her intended ex parte application.

33.  The defence argued that this private prosecution was not brought in the public interest at all, but as a weapon in a private financial demand.

34.  However, the defence accepted that mixed motives are not sufficient to constitute abuse, and what is required is “an oblique motive which is so dominant and so unrelated to the proceedings that it renders them an abuse of process.

35.  The defence further submitted that where a private prosecution is used to seek a collateral advantage and to put pressure on the defendant in relation to civil proceedings or pay money, such conduct constitutes abuse justifying a stay.

Other Grounds of Abuse

36.  The defence submitted that per Kwok Tak Ying §46a magistrate should be “alert to the inherent potential conflict of interest that a private prosecutor may have in the proceedings”.

37.  There is the conflict inherent in PW1 using the same legal team both to advance her civil and extortionate financial demands and to conduct this private prosecution.

38.  There is a real possibility that members of PW1’s legal team are themselves witnesses to the making and context of the HK$3m demand, as well as the linkage between that demand and the threats of “escalation” and “potential legal consequences”.

39.  The defence argued that there has been serious non-compliance with the prosecutor’s duty of candour at the summons stage, and PW1’s lawyers are not merely bystanders.

40.  The defence submitted that at the ex parte stage, PW1 painted a misleading picture of the continuing effects of her HKJA chairperson nomination right up to termination to the Court. Without these events, the link between the concerns expressed over PW1’s HKJA chairperson position on 21-22 June 2024 and the termination on 17 July 2024 (being almost a month apart) is much less clear – and this goes to the existence of a prima facie case for Charge 2.

41.  The defence also submitted that PW1 inexplicably did not present any of the important facts in relation to her possibly being made redundant to the Court, which she gave to the LD.

42.  The defence also complained that PW1 failed to specify that the speaker was outside Hong Kong at the time of the covert recordings and the Signal message, and that the Court may not have jurisdiction over Charge 1.

The Prosecution submission

43.  The defendant‘s application for a stay of proceedings was opposed by the prosecution. The prosecution submitted that the burden of proof for each of the grounds relied on by the defendant rests with the defendant, and the standard of proof is on a balance of probabilities.

44.  The prosecution stated that the defence asserted that (i) improper dominant purpose, (ii) breach of duty of candour, and (iii) a conflict of interest in relation to the prosecution legal team amounted to an abuse of process.

45.  For the ground of Improper purpose, the prosecution submitted that mixed motives, including personal gain, are not unlawful or uncommon. The improper purpose relied upon must have been the predominant purpose for bringing the proceedings. Merely having mixed motives in parallel proceedings is not sufficient to amount to an abuse of process.

46.  The prosecution submitted that to obtain a permanent stay of proceedings, a defendant must first establish that these proceedings are brought in bad faith (such as where an improper motive is found to be the dominant purpose of the complaint), if ‘oblique’ or indirectly, that it is unrelated to the proceedings, and that the motive was such as to render the conduct of proceedings “truly oppressive”.

47.  In the case of R (Morjaria) v Westminster Magistrates’ Court, where the English Divisional Court agreed that “the motive to settle the civil proceedings had to be either the primary motive for the criminal prosecution or a dominant oblique motive.

48.  In that case, the prosecution stated that the test was met because “…the prosecutor was using the criminal proceedings, not as a means to obtain “punishment for criminality, but rather as leverage to achieve the recovery of money from the defendants”, and that the evidence showed it was the private prosecutor’s “overwhelming, primary and dominant motive in bringing the criminal proceedings was to seek to force settlement”.

49.  The prosecution submitted that in the present case, PW1’s motive for bringing these proceedings was to bring about the public punishment of the defendant for its criminality, as an example to others and vindicating journalists’s right to association.

50.  The prosecution stated that the defence alleged PW1‘s motive for bringing this prosecution was extortion, namely “using the criminal proceedings, not as a means to obtain punishment for criminality, but rather as leverage to achieve the recovery of money from the defendant”.

51.  The prosecution pointed out that the principal material concerned are without prejudice correspondence between lawyers in this case. The prosecution submitted that on their face, none of the materials referred to by the defence (whether or not admitted for hearsay purpose) includes an express or clear threat against the defendant to use criminal proceedings to extort payment. On the contrary, they are worded not to do so.

52.  The prosecution stated that the defendant‘s application in fact required the Court to draw the inference to find an implicit threat of that nature. That in turn required the Court to find that such a threat is, on the balance of probabilities, the only reasonable inference to draw.

53.  The prosecution stressed that according to the evidence of PW1, her evidence was clear that she sought in good faith to settle on the basis of her assessment of the damage done to herself and her union.

54.  The prosecution submitted that the approach of the Court of Appeal in Taktouk may usefully be considered and applied to the evidence of purpose or motive in this case :

i)  PW1 had suffered genuine and significant loss, both privately and publicly in her role with both WSJ/Dow Jones and the HKJA (her trade union). She was clearly motivated to seeking both “compensation for loss suffered and the wish to see justice done”.

ii)  Her offer of settlement (whether improper or not) does not render these proceedings oppressive. The prosecution stated that there could be oppression to defendant if this prosecution had been commenced with no evidence but there is evidence aplenty which calls for explanation in this case.

iii)  The prosecution stressed that this private prosecution is based upon strong prima facie evidence of direct attempts by the defendant company to prevent PW1 from participating in the trade union. It cannot be categorised as “tainted by mala fides or spite”.

55.  For the ground of breach of duty of candour, the prosecution stated that the defence essentially complained the prosecution failed to disclose several matters to falling into the following categories :

i)  Matters going to “improper dominant motive;

ii)  Matters going to territorial jurisdiction; and

iii)  Matters going to the discrimination and redundancy.

56.  The prosecution submitted that all of the materials the subject of complaint were disclosed to the defence prior to trial, and that the bulk of the materials are correspondence between the parties which has always been in the defendant’s hand. The defence is at liberty to deploy them at trial without difficulty.

57.  The prosecution stressed that any particular item was not disclosed when it could or should have been at the time the summonses were first sought, cannot taint the fairness of the subsequent trial.

58.  The prosecution further submitted that the charges against the defendant are serious allegations and there is an obvious public interest in having them tried not least because they go to fundamental rights of PW1 and her registered trade union.

59.  There is a weighty consideration in favour of allowing the proceedings to continue notwithstanding any breach of the duty of candour as it was in the case of Siddiqui.

Discussion

60.  It is not disputed that I have a discretion to stay these proceedings if the defendant is unable to have a fair trial on the basis that to proceed with an unfair trial would be an abuse of the court’s process.

61.  In the present case, the defence confirmed during the hearing that their complaints are not based on any argument that the defendant is unable to have a fair trial. It is submitted by the defence that the court would still stay the proceedings even a fair trial is possible, and that where there has been an abuse of power of a kind that renders the trial of the accused an affront to the court’s sense of justice and propriety, the court would stay the proceedings even a fair trial is possible.

62.  To determine the merits of the Stay application, the evidence of PW1 is required to be considered, because the defence had made a number of complaints against PW1.

63.  Both the prosecution and the defence had prepared a summary of the evidence of PW1 and included the said summary in their written submission. The defence had also prepared a table in the written submission setting out their complaint against the truthfulness of PW1 and listed out the inconsistencies observed by them.

64.  The defence argued that PW1 did not inform the court of any of the intervening matters between termination and the criminal complaint, including press conferences, the HK$3 million demand, and the repeated settlement approaches, and that PW1 did not provided the relevant settlement and demand emails to the Department of Justice.

65.  The defence stated that by PW1‘s own description, LD grievance have a “dual-track procedure……meaning civil and criminal“, and that PW1 first insisted that Lee Law Firm”s (“LFF”) email to defendant dated 16 August 2024, which referred a “desire not to escalate this matter” and a request “made in anticipation of potential litigation”, meant only a civil case with LT. But later PW1 conceded that given her knowledge of the dual-track procedure, litigation and escalation in that context meant involving both civil and criminal aspects.

66.  The defence argued that the email of 23 September 2024 from LFF warned of the “potential legal consequences” of a violation of Hong Kong labour laws, and that in court PW1 explained that the warning only referred to civil consequences, but at that stage, PW1 had not yet commenced any “dual track“ complaint with the LD.

67.  Therefore, the defence submitted that when the email spoke of  “potential legal consequences”, it was clearly threatening the defendant with triggering the dual-track procedure.

68.  To conveniently deal with the issues raised by the defence, I shall first discuss the allegation of  “improper purpose” suggested by the defence. The main allegation is that PW1’s motive for bringing this prosecution was extortion i.e. “using the criminal proceedings, not as a mean to obtain punishment for criminality, but rather as leverage to achieve the recovery of money from the defendant”.

69.  Apart from PW1’s evidence in court, the principal materials concerned are WP correspondence between lawyers. The prosecution argued that none of the WP emails includes an express or clear threat against the defendant to use criminal proceedings to extort payment.

70.  After careful consideration of the contents of the WP emails, I agree with the observation made by the prosecution. Nevertheless, the defence also asked the court to consider whether any inference can be drawn, and the defence submitted that such a threat can be construed from the WP emails after taking into account of the evidence of PW1.

71.  The defence suggested that the contents and timing of the WP emails showed that the HK$3m demand was closely linked to the dual-track (i.e. civil and criminal) procedure that PW1 testified she understood about grievances to involve.

72.  To consider the point made by the defence, I shall briefly set out some of the event that took place before the filing of the private summons.

73.  On 12 November 2024, PW1 filed her complaint with the LD and provided a statement to them on 13 and 14 November 2024. After filing her claim with the LD, at her November Press Conference PW1 mentioned her wish for public justice to be done, and for prosecutorial action to be taken against the defendant.

74.  On 25 November 2024, PW1 wrote to LD requesting an indication as to whether any criminal prosecution would be proceeded with, and received a holding reply. LD indicated their cognizance of the time-bar.

75.  On 26 November 2026, PW1 filed her claim form with the LT. On 2 December 2024, PW1 wrote to LD again and highlighted the violation of the Employment Ordinance. LD responded that they were seeking legal advice from DOJ, and provided a holding reply.

76.  On 12 December 2024, PW1 filed her complaint with the Court. The Court issued the summonses on 20 December 2024, being 1 day before the statutory time-bar for prosecution of the offences.

77.  On 20 December 2024, LD replied stating that they would not proceed with prosecutorial action against the defendant.

78.  The defence argued that the irresistible inference is that the criminal proceedings were initiated only because the defence refused to pay HK$3m, which was used to put pressure on the defence to settle.

79.  The defence submitted that the HK$3m is an extortionate figure demanded by PW1 on 23 September 2024 and is around 15 times the value of PW1’s later LT claim of $193,170.07 and 48.4 months of PW1’s salary - going far beyond the scope of PW1’s civil claim, statutory caps, or any orthodox measure of loss.

80.  The defence also submitted that the contents and timing of the WP emails would also show that the HK$3m demand was closely linked to the dual-track (i.e. civil and criminal) procedure that PW1 testified she understood labour grievances to involve - such that the criminal proceedings were initiated with an ulterior motive to exert pressure.

81.  The defence further submitted that in 26 November 2024 email, PW1 demanded HK$3m or reinstatement, and said if the defendant can demonstrate “flexibility”, then “we can put this matter behind us and move forward positively - signaling an end to the entire dispute, and reinforcing that, had the defendant acceded to PW1’s extortionate civil demands, the criminal proceedings would not have happened.

82.  During cross examination, PW1 was asked how she came up with the figure of HK$3m, she explained that “it was not based on any lawsuit…whether it was in Hong Kong or in the US, or what I can get from civil litigation, because I wanted to have …if I were to get any settlement from Dow Jones, it should compensate the damage that I and my union received as a result. And so when I came up with this figure it was with this purpose in mind.”

83.  In 26 November 2024 WP email, PW1’s lawyer stated that the defence can either accept their initial demand or reinstate Ms. Cheng to her former position and issue a formal apology. PW1’s lawyer in the said WP email also stated that it matters not if a mediator is unfamiliar with Hong Kong law, as they can all agree on what relief would be available to Ms Cheng should she prevail in the LT.

84.  The prosecution submitted that it was defendant first sought to settle all claims and complaints arising from PW1’s employment by the termination letter (P14) on 17 July 2024.

85.  My view is that the defendant is free to propose terms of settlement that suited their purpose in the termination letter. Equally, there is nothing wrong for PW1 to propose or counter propose terms that suited her purpose while discussing settlement. Whether PW1 may or may not be able to recover a sum of HK$3m in LT will be determined by the merits of her claims in LT.

86.  For the present purpose, the true question is whether PW1 is using the criminal proceedings to gain leverage in her negotiations with the defendant.

87.  I am of the view that PW1 is perfectly entitled to make complaint to LD notwithstanding the fact that there may or may not be any outstanding civil claims of PW1 against the defendant. Once reported to LD, it will be decided by LD or the government as to whether they should investigate and proceed to criminal proceedings.

88.  The defence submitted that on 10 December 2024, PW1, through her lawyer, pushed for an urgent mediation within the next two days, stating (while failing to disclose the reason) that “it may become impossible for us to resolve the matter if we fail to do the mediation on the suggested date”.

89.  The 11 December 2024 email to the defendant then said “it is in your client’s best interest to do it tonight or to settle it according to the terms of our initial demand”. The defence submitted that this can only mean that had the defendant acceded to PW1’s initial demands, the criminal complaint would not have been launched.

90.  In the written submission, the prosecution cited the evidence given by PW1 during cross examination which stated that “We never at any point wielded the private prosecution against Dow Jones. We never made such suggestion. So, I think we have been careful about not leading anyone to think that. And so, by that point in time. I understand from the Labour Department’s response to me on the lack of a prosecution decision that the government most likely will not prosecute. And so, at that point, I was already preparing for private prosecution.”And so, the reason that there seemed to be a rushed time frame was not to use it against the defence or to force them to do anything as such. But simply to draw a line so that we are clear that we would not be using criminal action for civil settlement purpose.

91.  The prosecution in the written submission further submitted that the lawyer of PW1 was explicit by stating in the WP email that “Despite this step, my client is still very much committed to exploring mediation. However, we must set clear boundaries to ensure that any mediation is distinctly separate from the criminal proceedings, as my client can in no way attempt to leverage the criminal charges to gain an advantage in settlement negotiations. Similarly, your client cannot lawfully demand that the criminal prosecution be dismissed as part of any settlement proposal”.

92.  The prosecution submitted that PW1 was clearly motivated to seeking both “compensation for loss suffered and the wish to see justice done”. I agree with the prosecution’s observation.

93.  The evidence of PW1 quoted by the prosecution in the summary of evidence stated that PW1 would not have launched a private prosecution had the Government prosecuted instead. PW1 would have launched a private prosecution regardless of whether she was paid HK$3m or was reinstated, and she wished for the prosecution to set an example for employers in Hong Kong.

94.  She also explained that the reasons why she laid the Complaint on 12 December 2024, was because of the imminent statutory time-bar, and by that point she had received no response from LD or the Department of Justice.

95.  PW1 after filing her claim with the LD on 12 November 2024, at her November Press Conference PW1 mentioned her wish for public justice to be done, and for prosecutorial action to be taken against the defendant. This is a clear message that she trusted that prosecutorial action would be taken against the defendant by the government.

96.  I accept that because of the imminent statutory time-bar, PW1 had no choice but to issue a private prosecution. I also accept her explanation that the rushed time frame was not to use it against the defence or to force them to do anything as such.

97.  My view is that the message conveyed by PW1 at the November Press conference was consistent with the reminder given by her lawyer in the WP email. PW1’s lawyer in the WP email explicitly stated the following :

“Despite this step, my client is still very much committed to exploring mediation. However, we must set clear boundaries to ensure that any mediation is distinctly separate from the criminal proceedings, as my client can in no way attempt to leverage the criminal charges to gain an advantage in settlement negotiations. Similarly, your client cannot lawfully demand that the criminal prosecution be dismissed as part of any settlement proposed.”

98.  I accept the prosecution submission that the desire of PW1 for compensation for loss suffered and the wish to see justice done sit readily alongside one another. I therefore do not find that the private prosecution was motivated by any improper purpose.

99.  For the ground of breach of duty of candour, the defence submitted that the magistrate must be able to inform himself of all relevant facts, and the areas in which PW1 has a duty of candour include at least (i) the potential presence of an improper ulterior purpose and matters going to the establishment of a prima facie case of the offence(s) in question.

100.  The defence submitted that PW1 has seriously breached her duty of candour across both area - having not drawn almost any of the material facts potentially adverse to her case to the Court’s attention at the stage of the ex parte application.

101.  One of the main complaints of the defence is that PW1 failed to disclose the WP emails to the Court. To consider whether private summons should be issued by the court, I do not find that the WP emails are relevant for the court to consider the test of prima facie case.

102.  In addition to that, since by reading the contents of the WP emails, no threat against the defendant to use criminal proceedings to extort payment can be found, I find that no breach of duty of candour of PW1 in not submitting the WP emails when the private summons was filed.

103.  The defence also complained that PW1 failed to disclose the communications between herself and the LD/LT - comprising (i) the 3 statements she made to the LD; (ii) emails with the LD; and (iii) her statement made to the LT. The purpose of disclosing these documents to the court as suggested by the defence is to show that PW1 did not disclose her HK$3m demand against the defendant at any stage, and that PW1 failed to disclose she held July and November press conferences.

104.  I do not find that the non-disclosure of the aforesaid documents are relevant for the court to consider the test of prima facie case. I find that no breach of the duty of candour of PW1 in not submitting the aforesaid documents when the private summons was filed.

105.  My view is that taking into account of the contents of all the aforesaid documents including the WP emails, the court will not query the motive of PW1 when the private summons was filed.

106.  I do not accept the submission made by the defence that it can at least be said that if PW1 had properly complied with her duty, the court at the very least might not have issued the summonses for both Charges. I do not accept that PW1 may already be using her LD complaint as leverage.

107.  The defence also submitted that per Kwok Tak Ying, a magistrate should be “alert to the inherent potential conflict of interest that a private prosecutor may have in the proceedings”. The defence accepted that a person engaging the same lawyer(s) for different purpose is not per se prohibited in law.

108.  I do not find that there is any conflict of interest as suggested by the defence for PW1 using the same legal team both to advance her civil claims and to conduct the private prosecution.

109.  The defence also submitted that there is a breach of duty of candour in relation to the general issues, namely the speaker was not within jurisdiction at the time of Charge 1 and workplace discrimination and redundancy.

110.  The defence argued that PW1 failed to specify that certain WSJ personnel was outside Hong Kong at the time of the covet recordings and the Signal message, such that the court may not have jurisdiction over Charge 1.

111.  The prosecution’s answer to this point is stated in the Prosecution’s Stay Skeleton, and the prosecution rely on HKSAR v Hon Sui Ho Mandy [2009] 3 HKLRD 452 that a phone call takes place in both the sending and receiving jurisdictions. The defence had responded to this in the defense’s Reply Skeleton.

112.  The defence submitted that the court need not decide the legal point at this juncture, but the defence argued that this is at least potentially adverse to PW1’s case on Charge 1. My view is that since the mode of communication between PW1 and certain WSJ personnel was disclosed by PW1 when the private summons was filed, the information for considering the merit of prima facie case is sufficient.

113.  The defence also submitted that the LD, when being provided with the additional information/materials in relation to the redundancy, and the Code of Conduct and Standards which were not provided to the court, ultimately decided not to prosecute on 20 December 2024 after seeking legal advice from the DOJ, and that this breach of PW1’s duty of candour, when considered together with that in relation to her potential ulterior motive, are sufficient to justify the setting aside of the summonses.

114.  These additional information/materials were provided by the defendant to LD to explain the defendant’s case and position as against PW1’s complaint. I do not find that without submitting these additional information/materials by PW1 to the court, PW1 had breached her duty of candour.

115.  Notwithstanding the various complaints made by the defence, it is clear from the authorities and beyond argument that there is a strong public interest in the prosecution of crime and in ensuring that those charged with serious criminal offenses are tried. Ordering a stay of proceedings, which in criminal law is effectively a permanent remedy, is thus a remedy of last resort. As Lord Bingham of Cornhill observed in Attorney General’s Reference (No.2 of 2001)(at [24G]) :

“The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances.”

116.  The prosecution submitted that the approach of the court in the case of Siddiqui is of assistance. I agree with the prosecution submission that even if there were breach of the duty of candour, the charges under s21B are serious allegations and there is an obvious public interest in having then tried not least because they go to fundamental rights of PW1 and her registered trade unions and that there is a weighty consideration in favor of allowing the proceedings to continue after brought into play the balancing exercise identified by Lord Steyn in R v Latif [1996] 2 Cr. App. R 92 101;[1996]WLR 104, 113 :”in a case such as the present the judge must weigh in the balance the public interest in ensuring that those that are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies any means.”

117.  In Ng Chun To, the Court of Appeal added that, “the public interest lies in the guilt or innocence of the accused being fairly and openly determined at trial. For this to be displaced, powerful reasons must exist for concluding that such a trial, although fair, would nonetheless constitute an intolerable abuse of the court’s process. The instances where such an argument has any prospect of success must necessarily be very rare.” 

118.  This power to stay proceedings shall not be used for punitive or disciplinary functions: “The discretion to stay is not a disciplinary jurisdiction and ought not to be exercised in order to express the court’s disapproval of official conduct.”

119.  In all the circumstances, the applications for a permanent stay of proceedings are refused, and I decline to grant the stay of proceedings applied for and order that the trial do continue.

Appendix III

Ruling on admissibility of PP

1.  The prosecution seeks to rely on a number of exhibits in the proceedings which were marked provisional, namely PP8, PP8A, PP10, PP10A, PP11, PP12, PP12A, PP17 and PP18. The defence objected to the admissibility of the aforesaid provisional exhibits.

2.  PP8, PP10, PP12 are the recording of the 3 calls (“the 3 recordings”) between PW1 and DB on 20 and 21 June 2024, and PP8A, PP10A and PP12A are the transcripts of the respective calls (”the 3 transcripts”). PP11 is the screenshot taken by PW1 of the Signal message. PP17 and PP18 are the copy printout allegedly downloaded from a website.

3.  Both parties confirmed that the notice of application to Stay proceedings and for preliminary ruling, paragraph 12, dated 27 November 2025; and the defence skeleton argument for application to Stay proceedings and for preliminary ruling, paragraph 5 and paragraph 105 to 142 dated 4 December 2025; and the prosecution’s skeleton submission Stay of proceedings, preliminary issue and admissibility of evidence, paragraph 13 and paragraph 109 to 123 dated 15 December 2025 and the defence reply skeleton for application to Stay proceedings and for preliminary rulings, paragraph 34 to 38 dated 18 December 2025 were adopted as part of their respective submission.

4.  During the oral submission, I had made it clear to both parties that regarding the 3 recordings, I ruled the admissibility of the contents of the 3 recordings and the live evidence of PW1 collectively, and I had not yet made a ruling on whether any particular statement in the 3 recordings is admissible or not and the contents of the 3 recordings is still subject to subsequent argument by both parties as to the intended use of a specific statement in the 3 recordings, and my following ruling is just restricted to dealing with whether the provisional prosecution exhibits could be admitted to the proceedings for considering that evidence further.

5.  My ruling is that the following exhibits were admissible for the purpose of the proceedings, namely PP8, PP8A, PP10, PP10A, PP11, PP12 and PP12A. I therefore mark them as formal exhibits namely, P8, P8A, P10, P10A, P11, P12 and P12A. The rest of the provisional exhibits of the prosecution, namely PP17 and PP18, were inadmissible and should be removed. The following is my reasons.

6.  In the notice of application to Stay proceedings and for preliminary ruling, the defence applied for the following rulings concerning the admissibility of the covert recordings of PW1 as evidence :-

(1)  whether the chain of evidence of the recording is proven;

(2)  Whether their contents are inadmissible due to the hearsay rule;

(3)  Whether their contents (hearsay or not) can be used against the defendant, in light of the fact that the Court is left with no proof that the individual(s) speaking had actual authority to speak for or to bind the defendant (as a corporate entity) during the telephone conversations or their communications with PW1; and

(4)  Whether their contents are inadmissible parol and/or opinion evidence which cannot be used against the defendant (as a corporate defendant) for establishing the mental or conduct elements of the offences against it.

7.  The aforesaid requests were re-iterated at paragraph 5 of the defence skeleton argument for application to Stay proceedings and for preliminary ruling dated 4 December 2025.

8.  During the oral submission, the defence maintained that the Court is required to determine the chain of evidence of the covert recordings. The defence maintained the argument that the chain is insufficient. Based on my finding of the evidence of PW1 in my verdict, I do not accept that the chain is insufficient.

9.  The defence submitted that the present use of the covert recordings is objectionable in a number of ways. First, PW1 is seeking to use what was said by the Speaker (whilst not adduce any admissible evidence of whether she had actual authority to represent the defendant) against the defendant.

10.  The defence further submitted that PW1’s intended use of these previous conversations with the Speaker infringes the hearsay rule. This is because, unless the truth of the contents of the Speaker’s previous statements is relied upon, the fact that the Speaker made those statements is not relevant to the defendant (it may be otherwise against the Speaker herself).

11.  The defence argued that proving that (i) the Speaker did discuss with the New York office and various persons, (ii) the New York office did convey the disapproval and warnings about PW1’s HKJA Chairperson position as represented in the transcripts, and (iii) the New York office did tell the Speaker to convey the message to PW1 on 21 June 2024 all requires accepting the truth of the contents of the transcript, vis what the Speaker told PW1 in the covert recordings, and involves double hearsay in relation to what the Speaker (who is not testifying) represented was said by others in New York, and that this evidence of previous statements made by the Speaker is therefore incapable of being admissible evidence against the defendant.

12.  The defence argued that the conversation in the 3 recordings must be taken as a whole, and one cannot selectively ignore the hearsay parts when those form part of the context of the conversation. The defence also submitted that the matters raised by the defence should be taken in totality to hold the entirely of the 3 recordings inadmissible if they cross the chain of evidence hurdle.

13.  The defence also submitted that parol evidence is not admissible with regard to anything not immediately within the knowledge of the witness, and that much of what was said by the Speaker is opinion evidence, being matters of speculation and inference.

14.  The defence further submitted that the covert recordings should be ruled inadmissible, or at the very least, those parts thereof that constitute opinion evidence should not be admitted as evidence.

15.  It is also argued by the defence that actual authority is required to bridge the attribution gap between conduct by natural persons and the corporate defendant. In the present case, there is no proper evidence before this court that the Speaker in the covert recordings had such actual authority from the defendant, namely that they are properly authorized by the defendant’s corporate organs or its articles to convey the matters in the 3 recordings, such that they are not admissible evidence as against the defendant.

16.  The defence submitted that attribution for corporate defendant requires proof of actual authority, and apparent/ostensible authority would not suffice, and that the court will look primarily to those persons who are acting as the “brains” rather than as the “hands” of the employing company - this is a reference to Denning LJ’s observation in H.L. Bolton (Engineering) Co Ltd v T.J. Graham & Sons Ltd [1957] Q.B. 159 (cited in Tesco Supermarkets) that “A company may in many ways be likened to a human body. It has a brain and nerve centre which controls what it does. It also has hands which hold the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are directors and managers who represent the directing mind and will of the company, and control what it does…”. The reference to “manager” is therefore to the directing mind of the company and not merely any supervisor within the defendant.

17.  The defence further submitted that the prosecution must prove DB’s authority without relying on the conversations before it can constitute an exception to the hearsay rule.

18.  Regarding PP11, the defence submitted that it was a screenshot of a screenshot and that the defence was not able to challenge its veracity or authenticity so the court should not allow such evidence to be admitted.

19.  Regarding PP17 and PP18, these are internet printouts, and the prosecution is relying on the truth of the contents to say who DB is from the printout. The defence complained that the prosecution cannot take a shortcut and print out things on the internet.

20.  During the oral submission, the prosecution agreed that the prosecution could not use the contents of the 3 recordings to establish authority of DB. The prosecution submitted that the court can look at the other evidence around it, and consider what DB said was within the scope of authority.

21.  The prosecution also accepted that the citation of Lord Denning’s observation in the case of Bolton Engineering is a helpful guide. The prosecution submitted that once the court is satisfied that DB has a position of responsibility in the company and the function she was exercising in those conversations and the way in which she exercised that function and considering the background and surrounding evidence including the email P13, the court will be able to decide whether DB was acting within the authority of the defendant.

22.  The prosecution also submitted that without relying on the truth of the contents of the 3 recordings, the court is entitled to consider the subject matter that DB represented to PW1 in the 3 recordings to decide whether DB was acting within her scope of authority of the defendant.

Discussion

23.  One of the main issues for the trial is about the issue of authority, and some of the central issues suggested by the defence for determination included (i) the particularised acts of DB/KK were specifically and duly authorized by the defendant and (ii) such actual authority (or instructions) was given by the directing mind and will of the defendant.

24.  The 3 calls and Signal message are conducted between PW1 and DB by company phone, and DB as the immediate supervisor of PW1 at the material time discussed with PW1 subject matters related to the election of HKJA which PW1 intended to run for and also the issue of approval by the defendant. These subject matters are in my view related to the employment issue of PW1 with the defendant so it was not a conversation about personal matter or causal conversation that had nothing to do with the defendant.

25.  In the 3 recordings, there were statements exchanged by PW1 and DB. The role of DB as receiver of the message conveyed by PW1 and speaker in the 3 recordings is relevant to the determination of the type of authority DB had, including DB’s state of mind as speaker and receiver. Statement made to a witness by a third party are not excluded by the hearsay rule when they are put in evidence solely to prove the state of mind either of the maker of the statement or of the person to whom it was made. What a person said or heard said may well be the best and most direct evidence of that person’s state of mind” (see section 11-5 Archbold Hong Kong 2026, R v Blastland [1986] AC 41, 54)

26.  In addition, any matters within the remit of DB demonstrated in the 3 recordings will be admissible for the purpose of drawing inference of the type of authority DB had.

27.  My view is that a company may in many ways be likened to a human body. Apart from Brain, nerve centre and hands, there are also eyes and ears to assist the directing mind and will of the defendant to make decisions, therefore the role played by DB in those 3 calls and Signal message are also important and relevant for the purpose of considering the elements needed to be proved by the prosecution and also the trial issues raised by the defence.

28.  By reasons of the aforesaid, I ruled that PP8, PP8A, PP10, PP10A, PP11, PP12 and PP12A were admissible for the purpose of the proceedings.

29.  The defence complained that the prosecution was going to rely on the truth of the contents of PP17 and PP18, that these provisional exhibits were copies allegedly downloaded from a website which the source was disputed by the defence, and that the intended use of the contents of these printout infringed the hearsay rule. I agreed with the observation made by the defence and I therefore ruled these 2 provisional exhibits inadmissible for the purpose of the proceedings.