HCMP 2917/2015
HCMP 2918/2015
HCMP 2925/2015
HCMP 2929/2015
HCMP 2931/2015
(Heard together)
[2018] HKCFI 2027
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NOs 2917, 2918, 2925, 2929, 2931 OF 2015
_________________
| BETWEEN | | |
| | SECRETARY FOR JUSTICE | Applicant |
and |
| | SIEW YUN LONG | Respondent in HCMP 2917/2015 |
| | (蕭雲龍) | |
| | MAN FOR ON | Respondent in HCMP 2918/2015 |
| | (文伙安) | |
| | YUNG YIU SING | Respondent in HCMP 2925/2015 |
| | (翁耀聲) | |
| | CHAN PAK TAO | Respondent in HCMP 2929/2015 |
| | (陳柏陶) | |
| | LOU TIT MAN | Respondent in HCMP 2931/2015 |
| | (劉鐵民) | |
| _________________ |
| | (Heard together) | |
| Before: Hon Andrew Chan J in Court |
| Dates of Hearing: 15, 18, 23, 28, 29, 30 and 31 May 2018; and 4, 5, 6, 13 and 25 June 2018 |
| Date of Judgment: 31 August 2018 |
_________________
JUDGMENT
_________________
Introduction
1. This is another criminal contempt application made by the Secretary for Justice for the committal of the five respondents in relation to events which took place on 25 November 2014 in the portion of Argyle Street between the junction of Nathan Road and Portland Street, a section of “the Area”.
2. One of the reliefs sought in this application is to commit the respondents to prison and / or fined for criminal contempt by interfering with and / or impeding the due execution on 25 November 2014 of the injunction order made by Hon Au J on 10 November 2014 (“the Injunction Order”) by refusing to leave the obstructed area concerned by the Injunction Order despite repeated warnings.
3. The grounds for the application are set out in the Amended or Re‑Amended Statement of Facts in respect of each respondent. It is alleged by the applicant that each of the respondents:
(1) was in the Area for an extended period of time and ought to have heard the repeated requests and warnings made by the bailiffs and / or police officers prior to their arrest;
(2) had ample opportunity to leave the Area prior to their arrest but decided against going so;
(3) the actions taken by each of the respondents constituted an intentional breach of the Injunction Order; and
(4) the deliberate acts of each of the respondents together with the determination to flout the Injunction Order by obstructing or resisting the bailiffs and / or police officers in executing the Injunction Order.
Backgrounds
4. Most of the background facts pertaining to this application can be found in paragraphs 2 to 28 of my previous judgment relating to the same event in the Secretary for Justice v Cheng Kam Mun, HCMP 2916/2015 which I shall not repeat.
5. In addition to the abovementioned background facts, it is also pertinent to note that under paragraph (iii) of the Injunction Order[1], the Defendants in the underlying civil action were also restrained from doing an act whereby the Plaintiff may be hindered or obstructed in the free use of the Area.
6. Given the fact the Plaintiff was a public light bus company, it simply means that all the Defendants were required to leave that part of the Argyle Street when requested by the Plaintiff’s solicitors or bailiffs, so that public light bus operated by the Plaintiff could pass without any hindrance.
Legal Issue
7. It was contended by Mr Pun SC and Mr Wong, counsel for Mr Siew Yun Long and Mr Lou Tit Man, in their closing speeches again that the breach of an injunction per se would only amount to civil contempt and hence no punitive sanction should be attached. This issue has been dealt with in one of my other previous judgments relating to another event which took place on 26 November 2014, one day after the present case, where again bailiffs and police officers were deployed to disperse protestors of the same movement occupying sections of Nathan Road (the Secretary for Justice and Chu Pui Yan and others, HCMP 778/2015). Save and except subparagraph (iv) of paragraph 56 which is not relevant to the present application, the rest of that paragraph are equally applicable to this case.
8. In short, one simply cannot ignore the factual matrix and the history of all the events which led to the granting of the Injunction Order and the extensive media coverage that followed. On the day in question, standing in the middle of Argyle Street were a huge presence of local and international media and a large contingent of police officers. If the respondents did as what the applicant had alleged, that in my view was sufficiently flagrant or serious to warrant the imposition of punitive sanction.
9. In addition, both Mr Pun SC and Mr Wong submitted that the conducts of their respective clients during the clearance operation, on the scale of seriousness, were well below that of Mr Wong Ho Ming and therefore could not amount to criminal contempt. In Mr Siew’s case, he was doing no more than taking photographs, whereas in Mr Lou’s case, he was just assisting others in the removal of obstacles and was prevented from leaving the Area afterwards because of the crowded and chaotic circumstances at the time.
10. In my view, there is no point in making comparison. The rhetorical question one has to ask is why this court should measure each respondent’s conducts against another respondent’s conducts, probably the worst one, in another case. Surely it is the conducts of each individual respondent against the legal requirements for criminal contempt that this court must consider. I shall return to their individual circumstances when I consider each of their cases.
11. In this case, most of the evidence can be found from the video footage taken by various police officers at the scene. Because of these video footage, very little had been turned on the credibility of witness and evidence are, generally speaking, not disputed.
12. It was further submitted that since the bailiffs’ duties were confined to the removal of obstructions in the Area and that once they had been removed at around 2:03 pm, the continued mere presence of the respondents could not possibly constitute criminal contempt.
13. I do not agree. Firstly, the obstructions referred to by Mr Pun SC and Mr Wong were the five major obstructions depicted on a sketch drawn by DPC Chai Wai Keung. During the hearing, DPC Chai told the court that he undertook the task of drawing up the sketch after reviewing all the video footage. According to the evidence of Acting Assistant Chief Bailiff Mr Yu Tak Shun, these five obstructions had been cleared at around 2:03 pm and all the obstructions in the Area had been cleared by 2:45 pm the latest.
14. Having looked at all the relevant video footage, it seems clear to me that Mr Yu Tak Shun was only partially correct. He was correct in giving the timing as to the removal of the five major obstructions generally. There were other obstructions in the Area too. Although major obstructions such as tents, canopy and elevated platforms had been cleared by the Plaintiff’s agents and / or the protestors by 2:45 pm, video footage also depicted that substantial amount of obstacles and debris remained in the Area. Without clearing those debris, the Plaintiff was still being prevented from the free use of Argyle Street[2].
15. After the removal of the major obstructions and whilst the bailiffs were pushing forward along Argyle Street towards Portland Street, their advance was blocked by the presence of a large crowd of protestors. At most, the bailiffs had only been able to cover two third of the area between Nathan Road and Portland Street. As a result of the refusal on the part of the protestors to leave, police assistance was eventually sought at 2:35 pm. The bailiffs then withdrew behind the police check line. In other words, the bailiffs’ effort was forced to a complete halt and their mission on that day could hardly be described as accomplished.
16. Having taken over the clearance operation, the police attempted to push forward but again they were blocked by the protestors. After a final warning, the police began their arrest at approximately 3:05 pm. Video footage depicted wooden boards, plastic sheets and all kinds of miscellaneous items had been discarded along Argyle Street when the police moved forward. The Plaintiff’s agents were seen to pick up some of these discarded items along Argyle Street. Cleaning workers were seen to be deployed in sweeping and cleaning the roads before they were reopened for vehicular traffic. I am therefore unable to accept that the mere presence of the respondents after 2:45 pm had not caused any obstruction or interference with the duties of the bailiffs or police officers and hence could not amount to criminal contempt.
17. It is true that the bailiffs’ duties on that day were directed to assist the Plaintiff’s agents to effect the removal of the obstructions in the Area, but that had not been completely cleared until 3:35 pm when the Plaintiff’s solicitors were finally satisfied with the outcome of the clearance operation.
18. Secondly, one must not overlook the requirement stated in paragraph 5 above.
19. In the Secretary for Justice v Wong Ho Ming CACV 259/2017 [2018] HKCA 173, the Court of Appeal held [in paragraph 89] that where a party to a court order obstructed or interfered with the bailiff in executing the order, whether or not the order contained a provision authorising the bailiff to do so, the party committed a criminal contempt. It was further held that for such a criminal contempt, it was sufficient to prove as mens reas that the party intended to do the acts which constituted the actus reus of the contempt; no specific intent to interfere with the administration of justice was required.
20. In the present application, all the five respondents were parties to the court order as the Injunction Order was directed at persons unlawfully occupying and remaining on the public highway in the Area. They were therefore the defendants and not any third parties to the underlying civil action. What the Court of Appeal said in Wong Ho Ming (supra) about mens rea and actus reus are equally applicable to all the respondents in the present application. With that in mind, I now consider whether each of the five respondents’ acts and movements on the material day amounted to criminal contempt.
HCMP 2917/2015 Siew Yun Long
21. In Mr Siew’s case, his presence in the Area for an extended period of time had never been disputed. It was argued however that he was there simply taking photographs as a documentary reporter and was not engaged in any form of protests or acts which were inconsistent with his capacity.
22. Video footage indeed captured Mr Siew was holding a camera throughout the day and had been doing no more than taking photographs until his arrest at 3:10 pm.
23. During the hearing, Mr Siew elected not to give evidence. That is his right and no adverse inference has been drawn. Mr Siew also has a clear record. He however called one witness Mr Lam Kin Hang, an independent journalist, to testify. Mr Lam essentially told us that he had seen Mr Siew taking pictures throughout the “Occupy Central Movement” and had, in the past, read articles written by Mr Siew on the social media relating to social issues.
24. It is worth noting that Mr Siew did not claim himself to be a journalist or had attended the Area in that capacity. Nor any such suggestion had been put forward by Mr Pun SC on his behalf. His true intention in remaining in the Area for over five hours was revealed in Exhibit D13, a note posted by Mr Siew on his Facebook account dated 27 November 2014. Two roles could be discerned of his presence in the Area, namely both as a documentary reporter (紀錄者) and a protestor (抗爭者). Mr Siew also made it clear in the note that he did not like to use the identity of “journalist” as an excuse to avoid being apprehended by the police.
25. The bailiffs, the Plaintiff’s solicitors and the police between 9:20 am and 2:30 pm had altogether made numerous announcements advising people to leave the Area as their presence obstructed and interfered with the clearance operation. Mr Siew was seen standing in front of the barricades during the last five announcements. I have no doubt that Mr Siew was fully aware of the content of those announcements and the need to leave the Area.
26. It is also clear from the video footage that Mr Siew had no intention of leaving the Area until the last minute. He wanted to play his part both as a protestor and also as a witness to record in his mind historical important events through his camera lens. I therefore do not accept the contention advanced on his behalf that Mr Siew was a documentary reporter before his arrest and a protestor after. This is an assertion too convenient to make.
27. As pointed out in Chu Pui Yan (supra), the presence of individual protestor also lent support to other fellow protestors and as is common in mass protests, fellow protestors banded together to fight for their beliefs. The presence of Mr Siew with a large crowd in clear defiance of the Injunction Order made the job of the Plaintiff’s agents, the bailiffs and the police officers in clearing all the barricades and obstructions substantially more difficult. In fact, video footage clearly showed that the Plaintiff’s agents and the bailiffs were in no position to clear the obstructions that day. Inevitably, police assistance had to be sought.
28. After the police’s warning, Mr Siew’s continued presence in the Area was a clear intention of him flouting the Injunction Order. His presence was not only inherently likely to, but factually calculated to, delay if not to frustrate, the bailiffs and the Plaintiff’s agents’ efforts. In my view, his conducts amounted to a serious interference with the due administration of justice. Having considered all the circumstances, I am satisfied beyond doubt that Mr Siew is guilty of criminal contempt.
HCMP 2918/2015 Man For On
29. Mr Man elected not to testify or call any witness in the hearing. Again, no adverse inference has been drawn. Mr Man also has a clear record. In Mr Man’s case, video footage depicted his presence in the Area between 2:44 pm and 3:06 pm. In particular, he was present in the crowd during the police’s final warning where, in my view, there could not be any question of him unaware of the contents and requests of the police. By then the police check line had advanced to near the Portland Street exit of Mongkok MTR station. As the police advanced, so as the police’s PA system. When the police gave their final warning, the protesting crowd booedand seemingly the opposition crowd cheered and clapped. No doubt people present, irrespective of their sides, were aware of the contents of the police warning. In fact, sections of Argyle Street occupied by the protestors had reduced significantly. Given what I have said about the presence of the media and the police, it is simply inconceivable or incontestable that any individual protestor was not aware of the police’s request.
30. Following the police’s final warning, some protestors standing around Mr Man could be seen from leaving the Area. Yet Mr Man was seen making his ways towards the front of the police check line[3]. Mr Man could have left as late as 2:54 pm. He then stood in front of the police check line with his back towards the police, an indication of his defiance. Shortly before his arrest, the crowd was warned to leave the Area, Mr Man however did not move[4].
31. Although Mr Man was caught on video footage for a relatively short period of time, it is clear that he had no intention of leaving the Area despite all the opportunities available to him. His presence together with other protestors had made the job of the clearing and removing the obstructions substantially more difficult. His presence was not only inherently likely to, but factually calculated to, delay if not to frustrate, the bailiffs and the Plaintiff’s agents’ efforts. I therefore have no doubt that Mr Man’s conducts amounted to a serious interference with the administration of justice. He is therefore guilty of criminal contempt.
HCMP 2925/2015 Yung Yiu Sing
32. Similarly, Mr Yung elected not to testify or call any witness in the hearing. Again, no adverse inference has been drawn. Mr Yung also enjoys a clear record. In Mr Yung’s case, video footage depicted his presence in the Area between 9:54 am and 3:10 pm. Mr Yung was seen to be present in the Area from the second announcement onwards. He was standing in close proximity to the bailiffs and the police officers where the latter were making their broadcast. He was seen holding a loudhailer throughout the day and assisting others to make broadcast to the crowd. It is clear from the video footage that Mr Yung had no intention of leaving the Area whatsoever. The slogan on the back of his T‑shirt (寧鳴而死，不默而生) indicated his intention and described his involvement beyond doubt.
33. After the first police warning, Mr Yung had ample opportunities to leave the Area but decided against doing so. Mr Yung could have left the Area as late as 2:57 pm with ease[5]. His decision to remain at the front whilst holding a loudhailer demonstrated his determination to stay in the Area[6]. Again, his presence was not only inherently likely to, but factually calculated to, delay if not to frustrate, the bailiffs and the Plaintiff’s agents’ efforts. I therefore have no doubt that Mr Yung is guilty of criminal contempt.
HCMP 2929/2015 Chan Pak Tao
34. Mr Chan elected not to give evidence or call any witness in the hearing. Again, no adverse inference has been drawn. Mr Chan has a clear record. In Mr Chan’s case, video footage depicted his presence in the Area between 11:16 am and 3:10 pm. Mr Chan was seen wearing a black helmet, a pair of black goggles, a yellow scarf (covering his face) and a red T‑shirt. Despite the gear that he was wearing, his identity and presence in the Area was not disputed during the hearing.
35. Mr Chan was seen to be present from the third announcement (11:24 am – 11:33 am) onwards. He was seen standing in close proximity to the bailiffs and the Plaintiff’s solicitors as they were giving their announcements.
36. During the fourth announcement (11:56 am – 12:00 pm), Mr Chan was again present when the police informed the crowd about the clearance operation and that those present were advised not to obstruct the bailiffs in their execution of duties and to leave the Area via Portland Street. Mr Chan must have heard the announcements.
37. Mr Chan chose to remain. His intention to stay could be gleaned from not only Mr Chan’s presence but also the gear which he was wearing on that day. No doubt he wished to stay till the last minute and was expecting a potential confrontation with the police. After the first police warning, Mr Chan had ample opportunities to leave the Area but decided against doing so[7]. Mr Chan could be seen moving to the front even as late as 3:03 pm[8].
38. Given the length of time that Mr Chan chose to remain in the Area and his actions, I have no doubt that Mr Chan together with other fellow protestors decided deliberately to defy the Injunction Order and made the job of the clearing and removing the obstructions substantially more difficult. His presence and conducts were not only inherently likely to, but factually calculated to, delay if not to frustrate, the bailiffs and the Plaintiff’s agents’ efforts. I therefore have no doubt that Mr Chan’s conducts amounted to a serious interference with the administration of justice. He is therefore guilty of criminal contempt.
HCMP 2931/2015 Lou Tit Man
39. Mr Lou elected to give evidence in the hearing. In considering his evidence, I bear in mind that he has a clear record. Mr Lou essentially told the court that he only came to know about the material terms of the Injunction Order at around 1 pm on the material day and that by the time he wanted to leave the Area, he was no longer able to do so as he was blocked by the crowd.
40. Having heard Mr Lou’s evidence, I do not believe he is telling the truth and reject his testimony.
41. In Mr Lou’s case, video footage depicted his presence in the Area from approximately 9:26 am to 3:07 pm. Mr Lou was seen to be present, during most of the announcements made by the Plaintiff’s solicitors, the bailiffs and the police, either in front of the barricades or in close proximity to the Plaintiff’s agents and bailiffs. As early as 9:42 am, Mr Lou was seen shouting along with other protestors in demanding a genuine universal suffrage albeit his mouth was covered with a mask.
42. During the fourth announcement, Mr Lou was seen holding a yellow banner likewise that demanded genuine universal suffrage and standing on an elevated platform, the centre stage of the protest at the time, next to one fellow protestor who was making a broadcast to the crowd and seemingly demanding answers from the Plaintiff’s solicitors. In that announcement, the police informed the crowd, in no equivocate terms not to obstruct the bailiffs in their duties and to leave the Area via Portland Street. Mr Lou should have no difficulty in understanding the demand.
43. At approximately 1 pm, Mr Lou was seen standing at a short distance away from the Plaintiff’s solicitors who at the time was relaying the terms of the Injunction Order to the crowd once again. Even according to Mr Lou’s evidence in court which I have my strong reservation, he was fully aware of the fact that request had been made by the police for the protestors to leave the Area.
44. Mr Lou was then seen at 1:11 pm, wearing a pair of labour gloves in assisting the removal and dismantle of the elevated platform. The fact that Mr Lou was permitted in standing on the elevated platform with the yellow banner and assisting in the dismantle of the platform suggest to me that he could not have happened to be present in the Area by coincidence because he lived nearby as a street sleeper. Together with other protestors, wooden racks forming the elevated platform were taken away from the middle of Arygle Street. Had Mr Lou wanted to leave the scene, he could have done so after removing the wooden racks. Video footage however depicted his return to the Area despite all the opportunities opened to him to do otherwise.
45. At approximately 2:51 pm, Mr Lou was seen having a cake in the forefront of the police check line with his back facing the police. One can see the lady who distributed the cake to Mr Lou had no difficulty in manoeuvring herself through the crowd. Even as late as this juncture, Mr Lou could have left the Area with ease for in front of him was only a loose pack of protestors and journalists, yet he chose to stay. Not long, he was arrested by police officers at around 3:10 pm.
46. Mr Lou might not have been a rowdy protestor, however, his participation on the material day was by no means superficial. Given the length of time that Mr Lou chose to remain in the Area, the extensiveness of his involvement and his knowledge about the intended clearance operation, I have no doubt that Mr Lou together with other fellow protestors decided deliberately to defy the request made by the Plaintiff’s solicitors, the bailiffs and the police. His presence and conducts with other fellow protestors made the job of the clearing and removing the obstructions substantially more difficult, if not impossible. His acts and conducts were not only inherently likely to, but factually calculated to, delay if not to frustrate, the bailiffs and the Plaintiff’s agents’ efforts. I have no doubt that Mr Lou’s conducts amounted to a serious interference with the administration of justice. He is therefore guilty of criminal contempt.
| | (Andrew Chan) |
| | Judge of the Court of First Instance |
| | High Court |
Mr Victor Dawes, SC, Mr Jin Pao, SC, Mr Derek Chan, SC and Mr Lavesh Kirpalani instructed by Department of Justice, for the Applicant in HCMP 2917, 2918, 2925, 2929, 2931 of 2015
Mr Hectar Pun, SC and Mr Deng Jundi Earl instructed by Messrs JCC Cheung & Co assigned by DLA for the Respondent in HCMP 2917/2015
Mr Lawrence Lok, SC and Ms Christine YU instructed by Messrs Ho, Tse, Wai & Partners assigned by DLA for the Respondents in HCMP 2918, 2925, 2929 in 2015
Mr Wong, Yu‑yat, Anson, instructed by Messrs Bong Ng assigned by DLA for the Respondent in HCMP 2931 in 2015
[1] Paragraph 6 of my previous judgment of HCMP 2916/2015
[2] Police Video TW29
[3] Police videos LMC4, LMC10 and HH18
[4] Police videos C‑047‑13, LMC10 and HH18
[5] Police Video C‑047‑13
[6] Police Video TW29
[7] Police Video TW29
[8] Police Video KT33