Case Detail

HCMP 2917, 2918, 2925, 2929 & 2931/2015

[2022] HKCFI 2471

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS

NO 2917, 2918, 2925, 2929 AND 2931 OF 2015

-----------------

BETWEEN
	SECRETARY FOR JUSTICE	Applicant
and
	TANG LIN LING	Respondent

-----------------

Before:

Hon Andrew Chan J in Court

Date of hearing:

4 June 2018 at 10.08 am

Present:	Ms Maggie P K Wong, on fiat, for the applicant
	The respondent, in person

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D E C I S I O N

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COURT: The present proceedings is brought against the respondent, Miss Tang Lin-ling, for criminal contempt committed in the face of the court by deliberately taking photographs inside Court 28 of the High Court on 23 May 2018.

It is alleged that the abovementioned conduct committed by the respondent constitutes serious interference to the due administration of justice and therefore amounts to a criminal contempt of the court.

The Secretary for Justice participates in the present proceedings not as prosecutor, but as guardian of the due administration of justice.

All the evidence in this proceedings was presented by Ms Maggie Wong, legal representative of the Secretary for Justice.

It is not disputed that on 23 May 2018 High Court Miscellaneous Proceedings No 2917, 2918, 2925, 2929 and 2931/2015 (collectively referred to as the underlying proceedings) were listed for hearing. The underlying proceedings relate to, by coincidence, criminal contempt allegedly committed by a number of participants of the Occupy Central Movement in Mong Kok, Kowloon.

Four witnesses had been called by the Secretary for Justice to give evidence in this matter. The respondent in this case, after declining Legal Aid, also chose to defend herself and elected to give evidence herself.

Evidence from the first three witnesses called by the Secretary for Justice can be summarised as follows:

At about 9.30 am on 23 May 2018, Mr Sik Chee-ching, Mr Joshua Kanjanapas and Mr Leung Fuk-chi followed their respective pupil masters (Mr Victor Dawes, senior counsel, and Mr Jin Pao) arriving at court number 28 of the High Court in preparation of the underlying proceedings. Mr Dawes and Mr Pao represented the Secretary for Justice in the underlying proceedings.

As the underlying proceedings might attract media attention and possibly large public presence, seating arrangements had been put in place to limit the number of public entering the courtroom.

Mr Sik, Mr Kanjanapas and Mr Leung, on their arrival at the High Court, all managed to obtain an admission ticket to gain entry into the court. Upon entering the court they sat on the third row on the left-hand side of the public gallery. There are four seats on the third row. Mr Sit sat on the second seat, Mr Leung on the third, and Mr Kanjanapas on the fourth. The first seat, ie, the aisle seat, was not occupied at the time.

Shortly afterwards the respondent entered the courtroom and sat next to Mr Sik. According to Mr Sik, when he was sitting and waiting for the commencement of the underlying proceedings, he was annoyed by the vibrating noise emanating from the respondent’s mobile telephone (an iPhone). He then looked across and saw the webpage of WeChat movements appearing on the respondent’s mobile phone. Two photographs appeared on the webpage, one depicting an admission ticket and the other one depicting the front entrance of Court 28.

At around 9.55 am Mr Sik saw the respondent hold up her mobile telephone to the level of her chest and take two pictures of the court. As the underlying proceedings were about to commence, Mr Sik did not report the matter to anyone.

During the proceedings, Mr Sik kept hearing vibrating noise emanating from the respondent’s mobile phone. Again, when he looked across he saw the WeChat movements screen appearing.

At about 11 am the underlying proceedings were adjourned for a break. When Mr Sik stood up along with others to bow, he saw the respondent hold up her mobile phone again. She took on this occasion a picture of the court. According to Mr Sik, all of them, ie, the three pupils, witnessed the latest photo taking.

Outside the courtroom, they informed Mr Dawes about the incident. After learning the incident, Mr Dawes then returned to the court and reported the matter to the court clerk.

Mr Sik also told us that the respondent’s mobile telephone was then later confiscated by the court.

Mr Sik’s account in relation to the taking of photographs before the 11 am break was independently supported by both Mr Kanjanapas and Mr Leung’s evidence, to which I am not going to repeat. Both Mr Kanjanapas and Mr Leung gave similar accounts regarding the second incident. Mr Kanjanapas also gave us a demonstration regarding the respondent’s acts and movement.

The last witness called by the Secretary for Justice was Detective Police Constable 7992, Mr Lau Cheuk-san. At 3.30 pm on 25 May 2018 Mr Lau and his team arrived at the High Court. At 5.25 he took 15 photographs of the court. Signs prohibiting the taking of photographs could be seen outside and inside court number 28. At 5.53 pm he received the respondent’s mobile telephone from the staff of the judiciary.

At 4.15 pm on 29 May 2018, Mr Lau, together with Detective Police Constable 8039, examined the respondent’s mobile telephone and found three photographs relevant to the present proceedings.

The respondent chose to testify. Miss Tang told us that on the material day she came to the court simply to observe the court’s proceedings, since the underlying proceedings involved issues of public importance and riot. She wanted to learn about the Hong Kong legal system, for she had recently obtained her legal qualification in mainland.

According to the respondent, when cases involving public interest or affecting people’s livelihood, the transparency of the proceedings became paramount and it would induce and maintain the public confidence in the justice system if the proceedings could be as open as possible.

With respect in her heart, she entered the courtroom. Inside the court she, however, saw people sitting in the public gallery playing with their mobile phones. In fact, she noticed that people kept using their mobile telephones and typing on their notebook computers throughout the proceedings. When the court was in session, the respondent did not use her mobile phone at all. Her mobile phone, according to her, was connected with an earphone and therefore could not possibly generate any sound or noise. Further, her mobile phone had been switched to airplane mode without any outside network connection. In summary, her mobile telephone was dead silent.

As to the allegation that she had taken photographs before the commencement of the underlying proceedings, the respondent said that as the matter took place some time ago, she did not have much recollection and awareness of the incident. That also applies to the second incident, ie, the taking of another photograph shortly after the court was adjourned. According to the respondent, she had almost forgotten about the second incident, nevertheless she told us that she accepted the result of the police investigation.

The respondent stressed that she held great respect to this court and had no intention to commit any contempt of the court. She had no intention to obstruct or interfere with the administration of justice, nor did she intend to hinder the progress of the underlying proceedings.

According to the respondent she did see signs prohibiting the use of mobile phones, but people carried on using their mobile phones inside the court regardless. People also ate and drank inside the courtroom despite signs prohibiting such behaviour. As to the signs prohibiting the taking of photography inside the courtroom, the respondent claimed that she was not aware of the existence of any such signs.

As to whether she had uploaded photographs onto her WeChat account, the respondent again told us that she had forgotten about that too.

Discussion

The respondent is alleged to have committed criminal contempt. The responsibility in proving that lies with the Secretary for Justice. The standard, of course, is one of the criminal standard.

Having heard the evidence given by Mr Sik, Mr Kanjanapas and Mr Leung, I have no hesitation in accepting their evidence. Their evidence was clear and direct. All three of them were able to give detailed accounts of what they witnessed. I have no doubt they were telling the truth. More importantly, their evidence was supported by objective photographic exhibits, photographs extracted by the police from the respondent’s mobile telephone. The three photographs retrieved and recovered bear the timestamps which correspond with Mr Sik’s account of the respondent’s conduct. The three relevant photographs depict parties to the underlying proceedings, including counsel, respondents, court interpreter, court clerk and court reporter.

As to the evidence given by the respondent, I reject her evidence, in particular her assertion that she had forgotten about the taking of any photographs on 23 May. The alleged incident took place only slightly more than a week. If the respondent was telling the court the truth about her academic achievement, that she is in her mid-30s and had scored a top mark of 395 points from the 2017 mainland legal qualification exam, and with a Master’s Degree in Finance from the University of Sydney, her memory could not be that disappointing.

In my view, the respondent chose to ignore the realities; the reality of her taking photographs in court, the reality of signs clearly prohibiting the taking of photographs inside courtroom.

I, however, accept that the respondent had not deliberately intended to hinder the progress of the underlying proceedings. I say so because she chose to take her photographs either before or after the court was in session. Further, I also accept that she indeed simply wished to come to court to learn about our legal system and observe the judicial process. I also accept that she did not have any ulterior motive in either obstructing or interfering with our administration of justice.

In order to find the respondent guilty of criminal contempt, it is necessary to prove both the requisite actus reus and mens rea of the charge. So what are they in the present case given the respondent was found to have no specific intention to obstruct or interfere with the administration of justice?

As pointed out in paragraph 91 of the judgment of the Secretary for Justice v Wong Ho Ming CACV 259/2017 (2018 HKCA 173):

“Under the Hong Kong Common Law on mens rea for criminal contempt:
(a) There is no starting point that for every form of criminal contempt, a specific intent to interfere with the administration of justice is required.
(b) Nor is there a rigid rule that for every form of criminal contempt, only a basic intent to perform the acts which constituted the actus reus of the contempt is required.
(c) Whether a specific intent or a basic intent is required depends on the actual form of contempt before the court and the public policy consideration involved...”

In the present case the alleged criminal contempt concerned the deliberate taking of photographs inside the court. The prohibition or the restriction was directed at none other than the court users, be they the lawyers or members of the general public. The respondent in the present case, being a member of the general public who wished to observe the court’s proceedings, was bound by the prohibition/restriction.

In order to find the respondent guilty of criminal contempt it is in this case sufficient to show her basic intent to perform the act coupled with the act itself. Translating that into the present case, it is sufficient to show that the respondent intended to take photographs inside the court and did take photographs and that her action of taking photographs was inherently likely to prejudice or interfere with the due administration of justice.

It is beyond doubt that the respondent did take photographs inside the court, three altogether. These three photographs were taken about one hour apart on two occasions. They were not taken accidentally or inadvertently. The respondent was seen by Mr Sik to take out her mobile telephone and to hold it at her chest level before she pressed the bottom on the screen. It was, in my view, a conscious effort.

Her action in taking photographs was not only inherently likely to, but factually prejudice or interfere with the due administration of justice. The underlying proceedings were suspended and later came to a complete halt. Time and a great deal of resources had to be spent in dealing with the respondent.

With all that in mind, I am sure the respondent is guilty of criminal contempt.

(Proceedings from 10.31 am not required)

Court adjourns - 11.15 am

4 June 2018

HCMP 2917, 2918, 2925, 2929 & 2931/2015

[2022] HKCFI 2467

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS

NO 2917, 2918, 2925, 2929 AND 2931 OF 2015

-----------------

BETWEEN
	SECRETARY FOR JUSTICE	Applicant
and
	TANG LIN LING	Respondent

-----------------

Before:

Hon Andrew Chan J in Court

Date of hearing:

4 June 2018 at 10.40 am

Present:	Ms Maggie P K Wong, on fiat, for the applicant
	The respondent, in person

Offence:

Contempt of Court

---------------------------------

Transcript of the Audio Recording
of the Sentence in the above Case

---------------------------------

COURT: The respondent was found guilty of criminal contempt in the face of the court after a contested hearing. On 23 May 2018 the respondent was witnessed to have taken three photographs inside Court 28 of the High Court. As to the circumstances of her unlawful action, they can be found in my reasons for my decision and I am not going to repeat them.

This is the first criminal contempt case to have come before the High Court regarding unlawful taking of photographs inside the court. In terms of sentence there is no authority to follow in Hong Kong.

Taking photographs using mobile phones in court has become a problem and concern especially in criminal cases. The reason for this concern is obvious. In the High Court where a criminal trial is determined by a jury, taking photographs of the jurors, whether accidentally or deliberately, inevitably causes concern and unease among jurors. Jurors are also distracted from their task. They may be worried about reprisals. Jurors are very sensitive about that. The court must protect them from any form of unnecessary interference.

Once a jury has been empanelled they are protected and insulated from the general public as far as possible; they use separate staircases and lifts, they have their own waiting rooms. All these facilities are provided to ensure their privacy and safety.

Coming to court to listen to evidence, sometimes rather unpleasant evidence, and to determine the guilt of an accused may already be an intimidating experience itself. Any additional intimidation, such as their identities being revealed in social media, must be eliminated and guarded against.

Apart from jurors, all kinds of witness may also come to court to testify. Witnesses may come to court to testify under witness protection scheme. So witnesses who come under the witness protection scheme may come here to expose unlawful activities of drug syndicates or triad organisations. Co-accused may also testify against other accused in homicide cases. Victims of sexual assault may also come to testify in the High Court. Their identities and appearance on occasions must remain anonymous.

The anonymity of these witnesses and their safety are important issues. As such, illegal photography in court has every tendency to prejudice or interfere with the administration of justice.

In today’s world, photographs taken inside the court can easily be passed on to others through electronic means. The dissemination of these photographs is fast and is often non-retrievable. Once these photographs are in the hands of the bad elements, they can be misused. Photography in court must therefore be deterred.

Apart from the mischiefs mentioned above, in sentencing illegal photography in court, one must also bear in mind the nature of the proceedings, the disruption caused to the court and the potential misuse of the photographs in question.

In this case, although jury is not involved in the underlying proceedings, the underlying proceedings are highly politically charged. Video footage depicted fighting broke out between rival factions in the middle of large police presence. Two photographs taken by the respondent depict some of the respondents in the underlying proceedings, albeit because of the distance they are not readily identifiable.

As to the disruption of the court, that is self-evident. The underlying proceedings involving, I believe, eight counsel came to a complete halt. It is not difficult to imagine the costs being thrown away and this is all taxpayers’ money. In addition, two days had to be spent by this court in conducting the inquiry. The disruption is therefore considerable and expensive.

As to the misuse of those photographs, evidence has indicated that some photographs had already been uploaded onto the respondent’s WeChat account. Although there is no evidence to suggest that they are in bad hands, such risk cannot be completely ruled out.

To the respondent’s credit, she did show some remorse and tendered her apology to the court when giving evidence. As indicated, I also accept that she had no specific intention to interfere or obstruct the administration of justice. Her intention may well be simply to show off to her friends her presence in a Hong Kong court.

Having considered all the circumstances of the matter, a clang of the prison gate sentence may well be sufficient or justified in this case.

For the respondent’s act of criminal contempt she is sentenced to 7 days’ imprisonment. This, however, must not be taken that more severe punishment will not be passed in appropriate cases.

It is worthy to note sentence of 12 months’ imprisonment had been passed in the United Kingdom to a contemnor for taking illegal photography in court.

In conclusion, the respondent is sentenced to 7 days’ imprisonment for her act of criminal contempt.

This is all I wish to say about your sentence. I understand there is an application from the Secretary for Justice regarding costs.

HCMP 2917 ‑ 2922/2015,
2924 - 2932/2015 &
575/2018
(Heard together)

[2018] HKCFI 2396

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NOs 2917 to 2922,

2924 to 2932 OF 2015 AND 575 OF 2018

_________________

	IN THE MATTER of an application by the Secretary for Justice for leave to apply for an Order of Committal
	and
	IN THE MATTER of civil proceedings in HCA 2086/2014

________________________

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)
	LAI YU SING	Respondent in HCMP 2919/2015
	(黎宇聲)
	LAW WAI YAN	Respondent in HCMP 2920/2015
	(羅慧茵)
	CHAN JEFFREY	Respondent in HCMP 2921/2015
	(陳子勳)	& HCMP 575/2018
	CHAN WAI FUNG	Respondent in HCMP 2922/2015
	(陳瑋鋒)
	CHU SUI YING	Respondent in HCMP 2924/2015
	(朱瑞英)
	YUNG YIU SING	Respondent in HCMP 2925/2015
	(翁耀聲)
	WONG KA YEE	Respondent in HCMP 2926/2015
	(黃嘉義)
	KONG KAM TO	Respondent in HCMP 2927/2015
	(江金桃)
	CHAN AO TIEN	Respondent in HCMP 2928/2015
	(陳遨天)
	CHAN PAK TAO	Respondent in HCMP 2929/2015
	(陳柏陶)
	CHAN WING WAH	Respondent in HCMP 2930/2015
	(陳榮華)
	LOU TIT MAN	Respondent in HCMP 2931/2015
	(劉鐵民)
	LEUNG HON LAM	Respondent in HCMP 2932/2015
	(梁翰林)

_________________

(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; and 11, 12 and 13 September 2018

Date of Sentence: 26 October 2018

Date of Reasons for Sentence: 26 October 2018

__________________________

REASONS FOR SENTENCE

__________________________

HCMP 2917/2015 Siew Yun Long

1. The respondent in this case Mr Siew Yun Long was at the material time 29 and has been working as a freelance documentary photographer since 2014. He was found guilty after trial.

2. His acts and conducts on the material day had been described in my judgment handed down on 31 August 2018 to which I shall not repeat. Essentially Mr Siew was found to be present in the Area for an extended period of time, from 9:57 am to 3:10 pm. Apart from taking photographs and staging in the protest, he was not seen to be involved in any other activities. Mr Siew was not affiliated to any political party. He also enjoys a clear record.

3. Given the limited role Mr Siew played on the material day, a suspended sentence combined with a fine will be sufficient in his case. In view of the fact that Mr Siew was found guilty after trial, he will be fined a sum of $15,000 and given an imprisonment term of 6 weeks but suspended for 12 months. Mr Siew will have 3 months to pay the sum. In default, he will go to prison for 6 weeks.

4. The effect of the sentence being suspended is that if Mr Siew during the suspension period, commits any offences which involve a breach of the peace, the 6weeks’ custodial sentence imposed today may be activated and that he may be liable to serve the 6 weeks’ sentence. Hopefully, this serves as a sufficient deterrence. The effect of the sentence being suspended also applies to other respondents who are similarly given a suspended sentence below.

HCMP 2918/2015 Man For On

5. The respondent in this case Mr Man For On was 53 at the material time and is currently unemployed. He worked as a skilled worker before June 2018. Mr Man has no political affiliation and enjoys a clear record. He was found guilty after trial.

6. His acts and conducts on the material day had been described in my judgment handed down on 31 August 2018. In Mr Man’s case, he was found to be present in the Area for approximately 20 minutes, shortly before his arrest by the police.

7. Apart from refusing to leave the Area, Mr Man was not involved in the organisation of the protest. He also did not struggle with the police when being arrested.

8. Given the limited role Mr Man played, a suspended sentence combined with a fine will be sufficient in his case. Since Mr Man was found guilty after trial, he will be fined a sum of $15,000 and given an imprisonment term of 6 weeks but suspended for 12 months. Mr Man will have 6 months to pay the sum. In default, he will go to prison for 6 weeks.

HCMP 2919/2015 Lai Yu Sing

9. The respondent in this case Mr Lai Yu Sing was in his mid‑50s and a salesman at the material time. He left his employment soon after his arrest by the police. He has been living on his savings since then.

10. Mr Lai admitted his liability. He was found to be present in the Area shortly before his arrest despite repeated warnings given. Apart from refusing to leave the Area, Mr Lai was not involved in the organisation of the protest. He was not affiliated to any political party and has a clear record.

11. Given the limited role played by Mr Lai, he will be fined a sum of $10,000 and given an imprisonment term of 1 month but suspended for 12 months. Mr Lai will have 6 months to pay the sum. In default, he will go to prison for 1 month.

HCMP 2920/2015 Law Wai Yan

12. The respondent in this case Ms Law Wai Yan was 25 and worked in the media industry at the material time. She left the industry in 2017 and is now working as a chef in London. Her average monthly income after tax is HK$13,000.

13. Ms Law admitted her liability. She was found to be present in the Area shortly after 12 noon and between 2 pm and 3 pm before her arrest. Other than refusing to leave the Area, Ms Law was not involved in the organisation of the protest. She did not resort to any violence or struggle with the police. Ms Law has a clear record and was not affiliated to any political organisation.

14. Given the limited role played by Ms Law, she will be fined a sum of $10,000 and given an imprisonment term of 1 month but suspended for 12 months. Ms Law will have 3 months to pay the fine. In default, she will go to prison for 1 month.

HCMP 2921/2015 and HCMP 575/2018 Chan Jeffrey

15. The respondent in this case Mr Chan Jeffrey was at the material time 42 and is currently a recipient of comprehensive social benefits due to his mental conditions.

16. Mr Chan admitted his liability. He was found to be present in the Area between 10:10 am and 3:05 pm. Apart from taking photographs and videos and refusing to leave the Area, Mr Chan was not engaged in any other activities. He has a clear record and was not affiliated to any political organisation. He was not involved in the organisation of the protest.

17. Given the limited role played by Mr Chan and his personal circumstances, he will be given an imprisonment term of 1 month but suspended for 12 months with no additional financial penalty.

HCMP 2922/2015 Chan Wai Fung

18. The respondent in this case Mr Chan Wai Fung was 17 and a student at the material time. Currently he is working as a waiter on part‑time basis, making several thousand dollars a month.

19. Mr Chan admitted his liability. He was found to be present in the Area shortly before his arrest. Mr Chan was not affiliated to any political party and has a clear record. He was also not involved in the organisation of the protest.

20. Given the limited role played by Mr Chan, he will be fined $10,000 and given an imprisonment term of 1 month but suspended for 12 months. Mr Chan will have 6 months to pay the sum. In default, he will go to prison for 1 month.

HCMP 2924/2015 Chu Sui Ying

21. The respondent in this case Ms Chu Sui Ying was 41 and a social worker at the material time. Currently she is unemployed but actively looking for jobs in the social service industry.

22. Ms Chu admitted her liability. She was found to be present in the Area between 11:47 am and 3:10 pm. Whilst being present in the Area, she spoke to the crowd and questioned the involvement and / or the legality of the police in the clearance operation. Essentially Ms Chu challenged the authority of the police and refused to leave the Area despite being asked to do so on a number of occasions. Having said that, Ms Chu did not resort to any violence. Nor did she put up any resistance when being arrested by the police. Ms Chu was not affiliated to any political party and has a clear record.

23. Given the limited role played by Ms Chu, she will be fined $10,000 and given an imprisonment term of 1 month but suspended for 12 months. Ms Chu will have 6 months to pay the sum. In default, she will go to prison for 1 month.

HCMP 2925/2015 Yung Yiu Sing

24. The respondent in this case Mr Yung Yiu Sing was 19 and a social work student of the Hong Kong College of Technology at the material time. He now works for a non-governmental organisation as an officer on a part‑time basis, earning $4,000 a month on average. He was found guilty after trial.

25. Mr Yung was found to be present in the Area between 9:54 am and 3:10 pm. He was seen holding a loudhailer and assisting others to make broadcast to the crowd throughout the day. Mr Yung has a clear record and was not affiliated to any political party. In mitigation, it was submitted that the T-shirt Mr Yung wore was designed by the Social Work Department of his college whereas the loudhailer was on loan from the Hong Kong Federation of Students.

26. The role played by Mr Yung was not confined to mere presence. He assisted others in making broadcast to the crowd which in turn caused wholly unnecessary delay in the clearance operation. It is however accepted that when being arrested, Mr Yung did not put up any resistance. Bearing in mind the sentences imposed on others who had committed similar activities, Mr Yung will be fined $15,000 and given an imprisonment term of 2 months but suspended for 18 months. Because of his limited financial resources, Mr Yung will have 10 months to pay the sum. In default, he will go to prison for 2 months.

HCMP 2926/2015 Wong Ka Yee

27. The respondent in this case Ms Wong Ka Yee was 53 at the material time and presently works as an osteochiropractic manipulative provider on part-time basis. She manages to make several thousands each month.

28. Ms Wong admitted her liability. She was found to be present in the Area between 2:38 pm and 3:09 pm. She also has a clear record and was not affiliated to any political organisation. Ms Wong was also not involved in the organisation of the protest.

29. Given the limited role played by Ms Wong, she will be fined $10,000 and given an imprisonment term of 1 month but suspended for 12 months. Ms Wong will have 6 months to pay for the sum. In default, she will go to prison for 1 month.

HCMP 2927/2015 Kong Kam To

30. The respondent in this case Ms Kong Kam To was 52 and a housewife at the material time. Ms Kong lives on her daughter’s $4,000 contribution each month.

31. Ms Kong admitted her liability. She was found to be present between 11:47 am and 3:08 pm and refused to leave despite repeated warnings. This is however not the first time that Ms Kong has found herself in trouble with the police. Ms Kong has one assaulting police officer record back in 1996 when she was fined $500 in the Magistrate’s Court.

32. Having said that, there was no allegation of her using any violence on the material day. Ms Kong was also not involved in the organisation of the protest. Nor was she affiliated to any political party.

33. Given the limited role played by Ms Kong, she will be fined a sum of $10,000 and given an imprisonment term of 1 month but suspended for 12 months. Ms Kong will have 6 months to pay the sum. In default, she will go to prison for 1 month.

HCMP 2928/2015 Chan Ao Tien

34. The respondent in this case Mr Chan Ao Tien was 22 and a student at the material time. Currently he is a teacher, earning $16,000 a month.

35. Mr Chan admitted his liability. He was found to be present between 2:33 pm and 3:06 pm and refused to leave despite repeated warnings. Mr Chan was not affiliated to any political organisation. Nor did he resort to any violence on the material day. Mr Chan has a clear record and was not involved in the organisation of the protest.

36. Given the limited role played by Mr Chan, he will be fined $10,000 and given an imprisonment term of 1 month but suspended for 12 months. Mr Chan will have 3 months to pay the sum. In default, he will go to prison for 1 month.

HCMP 2929/2015 Chan Pak Tao

37. The respondent in this case Mr Chan Pak Tao was 25, a casual worker at the material time. Mr Chan was found guilty after trial. His acts and conducts on the material day had been described in my judgment handed down on 31 August 2018. Essentially Mr Chan was found to be present in the Area for an extended period of time and refused to leave despite repeated warnings. Mr Chan was not affiliated to any political organisation. Nor did he resort to any violence on the material day despite the gear that he was wearing. He has a clear record.

38. Given the limited role that played by Mr Chan, he will be fined $15,000 and given an imprisonment term of 6 weeks but suspended for 12 months. Mr Chan will have 3 months to pay the sum. In default, he will go to prison for 6 weeks.

HCMP 2930/2015 Chan Wing Wah

39. The respondent in this case Mr Chan Wing Wah was 45, a transportation worker at the material time. Due to ill health, Mr Chan currently lives on $3,660 social benefit from the Social Welfare Department.

40. Mr Chan admitted his liability. He was found to be present in the Area between 11:44 am and 3:09 pm and refused to leave despite repeated warnings. Mr Chan was not affiliated to any political organisation. Nor did he resort to any violence on the material day. He also has a clear record.

41. Given the limited role played by Mr Chan and his personal circumstances, he will be given an imprisonment term of 1 month but suspended for 12 months with no additional financial penalty.

HCMP 2931/2015 Lou Tit Man

42. The respondent in this case Mr Lou Tit Man was 69, unemployed at the material time. Mr Lou was born an orphan in Philippine. He came to Hong Kong at the age of 11. At the age of 19, Mr Lou became a street sleeper. Since then, he had been doing odd jobs till his 50’s. Currently he is receiving assistance from non-governmental organisations and the church. He was found guilty after trial.

43. His acts and conducts on the material day had been described in my judgment handed down on 31 August 2018. Essentially Mr Lou was seen to be present in the Area throughout the day. As mentioned in my judgment, his involvement was deep and extensive, beyond mere presence.

44. Mr Lou was seen standing on an elevated platform in the middle of Arygle Street and holding a yellow banner demanding universal suffrage when broadcast was being made to the crowd. He was also seen in rendering assistance to the seemingly organiser of the protest in the removal of the elevated platform. After its removal, Mr Lou was seen returning to the Area and continuing his defiance by standing at the forefront of the police check line till his arrest by the police. Despite his extensive involvement, it is however accepted that Mr Lou did not engage himself in any unlawful and violent act. Nor did he put up any resistance when being arrested by the police.

45. The role played by Mr Lou was similar to Mr Cheng Kam Mun. Unlike Mr Cheng Kam Mun, Mr Lou was found guilty after trial. The appropriate starting point for his sentence therefore is set at 4 1/2 month imprisonment. In view of his age and unblemished record in the past, his sentence can be adjusted slightly downwards to one of 4 months’ imprisonment. Other than that, I do not see any other mitigating factors. As such, Mr Lou is sentenced to 4 months’ imprisonment for the contemptuous acts he committed on the material day.

HCMP 2932/2015 Leung Hon Lam

46. The respondent in this case Mr Leung Hon Lam was 17 and a student at the material time. He is now studying higher diploma in civil engineering at the Hong Kong Institute of Vocational Education.

47. Mr Leung admitted his liability. He was found to be present in the Area shortly before his arrest. Mr Leung has a clear record and was not affiliated to any political party. He was not involved in the organisation of the protest.

48. Given the limited role played by Mr Leung and his personal circumstances, he will be given an imprisonment term of 1 month but suspended for 12 months with no additional financial penalty.

Costs

49. The respondents do pay to the applicant the costs of and occasioned by these proceedings including all costs reserved on an indemnity basis, with certificate for 3 counsel. The respondents’ own costs, except Mr Lai Yu Sing, be taxed in accordance with Legal Aid Regulations.

	(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

Mr Hectar Pun, SC and Mr Deng Jundi Earl, instructed by Messrs JCC Cheung & Co, assigned by Director of Legal Aid, for the Respondents in HCMP 2917, 2920, 2921/2015 and 575/2018

Mr Lawrence Lok, SC and Ms Christine Yu, instructed by Messrs Ho, Tse, Wai & Partners, assigned by Director of Legal Aid, for the Respondents in HCMP 2918, 2925, 2928, 2929, 2932/2015

Ms Sabrina Leung, instructed by Messrs Sanny Kwong & Co, for the Respondent in HCMP 2927/2015

Ms Jacquelyn Ng, instructed by Messrs Sanny Kwong & Co, for the Respondent in HCMP 2930/2015

Mr Albert Wong, instructed by Messrs Kenneth Lam, assigned by Director of Legal Aid, for the Respondents in HCMP 2922, 2926/2015

Mr Wong, Yu‑yat, Anson, instructed by Messrs Kenneth Lam, for the Respondent in HCMP 2924/2015

Mr Wong, Yu‑yat, Anson, instructed by Messrs Bond Ng Solicitors, assigned by Director of Legal Aid, for the Respondent in HCMP 2931/2015

The Respondent in HCMP 2919/2015 appeared in person

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

HCMP 2916-2932/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NOS 2916-2932 OF 2015

_______________

	IN THE MATTER of applications by the Secretary for Justice for leave to apply for Order of Committal
	and
	IN THE MATTER of civil proceedings in HCA 2086/2014

_______________

BETWEEN
	SECRETARY FOR JUSTICE	Applicant
	and
	CHENG KAM MUN (鄭錦滿)	Respondent in HCMP 2916/2015
	SIEW YUN LONG (蕭雲龍)	Respondent in HCMP 2917/2015
	MAN FOR ON (文伙安)	Respondent in HCMP 2918/2015
	LAI YU SING (黎宇聲)	Respondent in HCMP 2919/2015
	LAW WAI YAN (羅慧茵)	Respondent in HCMP 2920/2015
	CHAN JEFFREY (陳子勳)	Respondent in HCMP 2921/2015
	CHAN WAI FUNG (陳瑋鋒)	Respondent in HCMP 2922/2015
	AU YUK KWAN (歐煜鈞)	Respondent in HCMP 2923/2015
	CHU SUI YING (朱瑞英)	Respondent in HCMP 2924/2015
	YUNG YIU SING (翁耀聲)	Respondent in HCMP 2925/2015
	WONG KA YEE (黃嘉義)	Respondent in HCMP 2926/2015
	KONG KAM TO (江金桃)	Respondent in HCMP 2927/2015
	CHAN AO TIEN (陳遨天)	Respondent in HCMP 2928/2015
	CHAN PAK TAO (陳柏陶)	Respondent in HCMP 2929/2015
	CHAN WING WAH (陳榮華)	Respondent in HCMP 2930/2015
	LOU TIT MAN (劉鐵民)	Respondent in HCMP 2931/2015
	LEUNG HON LAM (梁翰林)	Respondent in HCMP 2932/2015

_______________

(Heard together)

Before: Hon Chow J in Chambers (open to public)

Date of Hearing: 14 December 2016

Date of Decision: 16 December 2016

___________________

D E C I S I O N

___________________

INTRODUCTION

1. The issue that I have to decide is whether to give a direction that all affidavits or affirmations filed on behalf of the Secretary for Justice shall stand as the evidence in chief of the deponents at the trial of these committal proceedings provided that the deponents do attend the trial to be cross-examined on their affidavits or affirmations by the respondents.

2. The above direction is sought by Mr Victor Dawes SC on behalf of the Secretary for Justice as the applicant in these proceedings and supported by Mr Gerard McCoy, SC on behalf of his clients in HCMP 2916, 2922, 2923 and 2926 of 2015, but objected to by (i) Mr Earl Deng on behalf of his clients in HCMP 2917, 2920 and 2921 of 2015, (ii) Mr Man Ho Ching (adopting the written submissions prepared by counsel, Ms Christine Yu) on behalf of his clients in HCMP 2928, 2929, 2931 and 2932 of 2015, and (iii) the respondents in HCMP 2918 and 2925 of 2015. The remaining respondents adopt, I understand, a neutral position on this matter.

DISCUSSION

3. The background facts to these proceedings are well known to the parties and I do not propose to set them out again in this decision.

4. On behalf of the Secretary for Justice, Mr Dawes submits that the direction sought should be given for the following reasons:-

(1)   The court has clear power to give such direction in view of the confirmation by the Court of Appeal in Secretary for Justice v Cheung Kai Yin [2014] 4 HKLRD 367, at paragraph  35, that the Rules of the High Court are generally applicable to proceedings for criminal contempt.
(2)   A similar direction was given in what are referred to as the “Taxi Cases” by consent, and there is no rational basis for not giving the same direction in the present group of cases.
(3)   The current estimated length of trial of 40 days is put forward on the basis that the affidavits or affirmations of the deponents will stand as their evidence in chief. If the deponents are required to give oral evidence in the traditional manner, it is estimated that an additional 15 to 20 days will be required for the trial.
(4)   There is no clear or intelligible reason why the deponents should be required to give evidence in chief in the traditional manner. None of the respondents has indicated which paragraphs of their affidavits or affirmations, or which areas of their evidence, are likely to be disputed. Neither has any of them been able to explain what tactical or other advantage he or she may obtain by requiring the deponents to give evidence in chief in the traditional manner.
(5)   Lastly, the mere fact that the credibility of a witness may be in issue does not necessarily mean that his or her witness statement should not be allowed to stand as his or her evidence in chief (see Bam Ganesh v Hussain Maroof, CACV 47/2007, 16 July 2008, at paragraph 18 per Le Pichon JA).

5. In my view, of the 5 reasons advanced by Mr Dawes, the important ones are the third and fourth reasons mentioned above. The fact that the court has power to give the direction sought is not a reason for the exercise of such power. Also, the fact that a similar direction was given in the Taxi Cases by consent cannot of itself be a good or sufficient reason for giving the same direction in the present set of cases. I accept, however, that the efficient administration of justice and the promotion of the underlying objectives of the Civil Justice Reform are good reasons for giving the direction sought by the Secretary for Justice. These considerations are, in my view, as relevant to proceedings for criminal contempt as they are to ordinary civil litigations.

6. I shall deal with a number of objections to the direction sought by the Secretary for Justice which have been raised by Mr Deng, Mr Man and some of the respondents acting in person.

7. First, it is said that the Secretary for Justice should, instead of seeking the direction, put forward agreed facts to the respondents for their consideration and use his prosecutorial discretion to identify witnesses who are necessary to prove his case so as to limit the number of witnesses required to give evidence at the trial. While I agree that it would be helpful for the Secretary for Justice to propose agreed facts with a view to them being agreed by the respondents and to limit the number of witnesses as much as possible so that the trial may be shortened, I do not consider these matters to be valid grounds to object to the direction now being sought by the Secretary for Justice. Irrespective of whether the affidavits or affirmations shall stand as the evidence in chief of the deponents, there is no obstacle to the agreement of undisputed facts or the limitation of witnesses.

8. Second, it is said that the respondents are not required to disclose or give any indication of their defence, because these are proceedings for criminal contempt with penal consequences. Hence, the Secretary of Justice’s fourth reason mentioned above has no force or validity. Granted that the respondents are entitled, as a matter of right, not to disclose their defence, it is a matter entirely for them to decide whether to exercise such right. If they choose to exercise the right of silence, the court can only make a decision on the basis of the materials and arguments now before the court, and determine whether, in the interest of justice, the affidavits or affirmations of the deponents filed on behalf of the Secretary for Justice should be allowed to stand as their evidence in chief.

9. Third, it is argued that the present cases and the facts in issue are identical to summary offences of a criminal nature, and safeguards in the criminal trial process to ensure the integrity and fairness of the system should be followed. I have been referred to a number of Australian authorities which explain the rationale behind the usual rule or practice of requiring witnesses to give their evidence orally in criminal trials. It is a fact, however, that the respondents are not currently being charged with any summary offences. It is also now clear that the present contempt proceedings are civil causes or matters (see Secretary for Justice v Cheung Kai Yin [2014] 4 HKLRD 367, at paragraph 35). As I see it, in considering whether to allow the affidavits or affirmations of the deponents to stand as evidence in chief, what is critical is not whether the present committal proceedings should be treated as being civil or criminal in nature, but whether the respondents will suffer any real prejudice as a result of the direction and whether the fairness of the trial will be compromised. It is, in my view, important that the direction will have no effect on the right of the respondents to fully cross-examine the deponents on their affidavits or affirmations. It has not been suggested or shown that any particular prejudice will be suffered by the respondents as a result of the direction, or that the trial process will be rendered unfair by permitting the deponents to adopt their affidavits or affirmations as their evidence in chief.

10. Lastly, it is argued that requiring the witnesses to give evidence in chief orally will promote the public interest of transparency of the proceedings. I am given to understand by Mr Dawes (which I consider to be a fair observation) that a large part of the case for the Secretary for Justice will be presented by video evidence and not the oral evidence of witnesses. It is clear to me that the trial of these applications will be fully reported in the media. I do not believe that the transparency of the proceedings will be compromised by giving the direction sought by the Secretary for Justice.

11. In my view, whether the direction sought by the Secretary for Justice should be given is ultimately a matter of case management. I consider that I ought to arrive at a result which would promote the efficient administration of justice while seeing that the respondents will not suffer any real prejudice in the conduct of their defence. I believe that a proper balance can be achieved by giving the direction sought by the Secretary for Justice but subject to an express proviso that the trial judge may direct the evidence in chief of any particular witness (in whole or in part) to be given orally.

Disposition

12. I give the following directions:-

(1)   all 17 applications now before me shall be heard together;
(2)   the Secretary for Justice shall have leave to fix dates for the trial of the 17 applications in consultation with counsel’s diary, with 40 days reserved;
(3)   there shall be a pre-trial review to be held on a date not earlier than 10 weeks and not later than 6 weeks prior to the commencement of the trial, with 1 hour reserved; and
(4)   subject to such direction as may be given by the trial judge that the evidence in chief of any particular witness (in whole or in part) shall be given orally, the affidavits or affirmations filed by the Secretary for Justice in these 17 applications shall stand as the evidence in chief of the deponents provided that they attend the trial to be cross-examined by or on behalf of the respondents.

13. I also make an order nisi that the costs of the application be in the cause, with certificate for 2 counsel where applicable.

14. The respondents’ own costs, in so far as they are legally aided, are to be taxed in accordance with legal aid regulations.

(Anderson Chow)
Judge of the Court of First Instance
High Court

Mr Victor Dawes, SC and Mr Jin Pao, instructed by Department of Justice, for the applicant in HCMP 2916-2932 of 2015

HCMP 2916, 2922-2923, 2926 of 2015
Mr Gerard McCoy, SC and Mr Albert N B Wong, instructed by Kenneth Lam, assigned by Director of Legal Aid, for the respondents

HCMP 2917, 2920-2921 of 2015
Mr Earl Deng, instructed by JCC Cheung & Co, assigned by Director of Legal Aid, for the respondents

HCMP 2928-2929 and 2931-2932 of 2015
Mr Man Ho Ching, of Ho, Tse, Wai & Partners, assigned by Director of Legal Aid, for the respondents

HCMP 2924 of 2015
Mr Kenneth Lam, of Kenneth Lam, for the respondent

HCMP 2927, 2930 of 2015
Kong Kam To and Chan Wing Wah, the respondents, in person, absent

HCMP 2918 of 2015
Man For On, the respondent, in person, present

HCMP 2919 of 2015
Lai Yu Sing, the respondent, in person, present

HCMP 2925 of 2015
Yung Yiu Sing, the respondent, in person, present

HCMP 2917, 2920-2923, 2926, 2928-2929, 2931-2932/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS

NOS 2917, 2920-2923, 2926, 2928-2929, 2931-2932 OF 2015

_______________

	IN THE MATTER of applications by the Secretary for Justice for leave to apply for Order of Committal
	and
	IN THE MATTER of civil proceedings in HCA 2086/2014

_______________

BETWEEN
	SECRETARY FOR JUSTICE	Applicant
and
	SIEW YUN LONG (蕭雲龍)	Respondent in HCMP 2917/2015
	LAW WAI YAN (羅慧茵)	Respondent in HCMP 2920/2015
	CHAN JEFFREY (陳子勳)	Respondent in HCMP 2921/2015
	CHAN WAI FUNG (陳瑋鋒)	Respondent in HCMP 2922/2015
	AU YUK KWAN (歐煜鈞)	Respondent in HCMP 2923/2015
	WONG KA YEE (黃嘉義)	Respondent in HCMP 2926/2015
	CHAN AO TIEN (陳遨天)	Respondent in HCMP 2928/2015
	CHAN PAK TAO (陳柏陶)	Respondent in HCMP 2929/2015
	LOU TIT MAN (劉鐵民)	Respondent in HCMP 2931/2015
	LEUNG HON LAM (梁翰林)	Respondent in HCMP 2932/2015
_______________
	(Heard together)

Before: Hon Chow J in Chambers (open to public)

Date of Hearing: 29 April 2016

Date of Decision: 6 May 2016

___________________

D E C I S I O N
___________________

INTRODUCTION

1. I have before me a total of 5 summonses taken out by the respondents seeking, in each instance, an order that the leave (“the Second Leave”) granted by this court on 11 November 2015 to the Secretary for Justice (“the Secretary”) to apply for an order of committal against the respondents be set aside.

2. In what follows, references to “Order” and “rule” shall, unless the context indicates otherwise, be references to the Rules of the High Court.

PROCEDURAL BACKGROUND

3. The present contempt proceedings arose out of events occurring at the westbound carriageway of Argyle Street between the junction of Tung Choi Street and Portland Street on 25 November 2014 in connection with the execution of an injunction order granted by Au J on 10 November 2014 and sealed on 14 November 2014 in HCA 2086/2014 (“the Injunction Order”).

4. The background facts leading to the lapse of the earlier leave (“the First Leave”) granted by this court on 20 March 2015 to the Secretary to apply for an order of committal against the respondents have been set out in my earlier decision in Secretary for Justice v Cheng Kam Mun [2015] 1 HKLRD 41 given on 1 September 2015. I do not propose to repeat them in this decision.

5. Following the court’s decision in Cheng Kam Mun, on 6 November 2015, the Secretary applied, ex parte, for fresh leave to apply for an order of committal against the respondents pursuant to Order 52, rule 2(2).

6. On 11 November 2015, this court granted fresh leave (ie the Second Leave) to the Secretary to apply for an order of committal against the respondents.

7. On 25 November 2015, the Secretary, pursuant to the Second Leave, issued an originating summons under Order 52, rule 3(1) against each of the respondents.

8. Also on 25 November 2015, the Secretary for Justice issued, in respect of each of the respondents, a notice of appointment to hear the originating summons pursuant to Order 52, rule 3(2).

9. The respondents now seek to challenge the Second Leave granted by this court. In summary, the following grounds have been raised by some or all of the respondents in support of their applications:-

(1) The Secretary is time-barred from initiating committal applications on conduct which could have been prosecuted by way of a statuary offence under section 23 of the Summary Offences Ordinance, Cap 228 (“Section 23”).
(2) Alternatively, the court should, in the exercise of its discretion, set aside the Second Leave on the ground of frustration of legitimate expectation.
(3) The time limit imposed by Order 52, rule 3(2) for entering the originating summons for hearing is mandatory. Once the court has granted leave to an applicant to apply for an order of committal against a respondent and such leave has lapsed, the court lacks jurisdiction to deal with the same matter anymore.
(4) The lapse of the First Leave means that it is an abuse of process for the Secretary to re-commence committal proceedings against the same respondents.

10. In what follows, I shall deal with each of these grounds separately.

1^ST GROUND: IMPLIED TIME BAR

11. According to Mr Gerard McCoy SC, there is an implied time bar, namely, 6 months from the date when the matter of complaint of criminal contempt arose, for the Secretary to apply for leave to apply for an order of committal against the respondents. This time bar, it is said, arises from the “principle of legality” and/or the Hong Kong Bill of Rights having regard to the following circumstances:-

(1) The conduct of the respondents complained of by the Secretary could equally be prosecuted as an offence under Section 23.
(2) As a matter of fact, the Secretary did originally charge the respondents for an offence under Section 23 in the magistrates’ court.
(3) The Secretary subsequently decided not to pursue the Section 23 charge and elected to proceed with committal proceedings, recognising that the respondents could not be punished “twice on the same acts”.
(4) A person who is charged with a Section 23 offence is entitled to certain statutory protections, including (i) a time limit of 6 months for commencement of prosecution under Section 26 of the Magistrates Ordinance (Cap 227), and (ii) a penalty limit of a fine of HK$1,000 and imprisonment for 6 months under Section 23.
(5) Accordingly, the same protections should be available to the respondents who could have been, and were originally, charged with an offence under Section 23, even though the Secretary has later elected to pursue committal proceedings against them.

12. On this argument, the lapse of the First Leave is irrelevant. The time bar of 6 months would apply even if the leave application made on 6 November 2015 was the first time that the Secretary sought leave to apply for an order of committal against the respondents.

13. I do not accept that the Secretary is subject to the suggested time bar of 6 months for seeking leave to apply for an order of committal under Order 52, rule 2(2), whether generally or in the particular circumstances of these cases. In my view, Mr McCoy’s argument overlooks two fundamental points. First, the offence created by Section 23 and the offence of criminal contempt are completely different in so far as their purposes, essential ingredients and sanctions are concerned. In particular:-

(1) The purpose of Section 23 is to proscribe conduct amounting to “resisting or obstructing a public officer or other person lawfully engaged in a public duty”, whereas the purpose of the offence of criminal contempt is for “the protection of the administration of justice and the maintenance of the court’s authority”: see Arlidge, Eady & Smith on Contempt (4^th Ed, 2011), paragraph 3-6.
(2) In relation to their essential ingredients, Section 23 catches conduct amounting to resisting or obstructing a public officer or other person lawfully engaged, authorized or employed in the performance of any public duty or any person lawfully assisting such public officer or person therein (which may have nothing whatsoever to do with the execution of any court order or the administrative of justice), whereas conduct constituting a criminal contempt can take a variety of forms occurring in a variety of circumstances which can be far removed from what is mentioned in Section 23. Since the parties have not made submissions on the precise essential ingredients of the offence of criminal contempt, I shall leave that matter for future consideration as and when it becomes necessary to do so.
(3) Lastly, the sanction following a conviction of an offence under Section 23 is limited to a fine of HK$1,000 and imprisonment for 6 months, whereas the sanction for criminal contempt is not so limited.

14. The second fundamental point is that under Article 63 of the Basic Law, prosecutorial decisions are vested in the Department of Justice free from any interference. Generally speaking, it is entirely a matter for the Secretary to decide what criminal charge to pursue against a person whose conduct could be prosecuted for a number of different offences carrying difference consequences. The court has power to restrain an abuse of process, but it would only be in the most exceptional circumstances that the court would consider a prosecutorial decision made by the Department of Justice as amounting to an abuse.

15. In the present cases, the Secretary’s reasons for deciding to pursue the criminal contempt route were set out in the skeleton submissions of the Deputy Director of Public Prosecutions (“DDPP”) dated 7 January 2015 in HCA 2086/2014 and more fully in paragraph 5 of the DDPP’s skeleton submissions dated 7 January 2015 in HCA 2104/2014 (relating to another set of contempt proceedings), as follows:-

“(1)The main gravamen of the conduct leading to the arrests was open disobedience of the Court Injunction Order, thereby undermining (a) the due administration of justice, (b) the respect for the authority of the court, and (c) therefore the Rule of Law …
(2) The Rule of Law ought to be upheld.
(3) In the interest of justice, it is more appropriate to bring the APs back before the court whose order s/he openly disobeyed to be dealt with by the Court as the court may deem appropriate.
(4) The Rule of Law, and the authority of the Court, are best safeguarded and seen to be safeguarded this way.”

16. Whether the respondents’ conduct amounted to an open disobedience of the Injunction Order or constituted a criminal contempt are matters to be tried in due course (in respect of which I express no view at present), but I am unable to see how the Secretary’s decision to proceed with contempt proceedings for the aforesaid reasons, which appear to be based on public interest considerations, can be said to amount to an abuse of the court’s process or, as put by Mr McCoy, a “colourable device to circumvent time limits to arrive at the possible outcome of a deprivation of liberty” (see paragraph 9 of Mr McCoy’s written submissions).

17. Neither can I see any valid basis to import the time bar prescribed by Section 26 of the Magistrates Ordinance into the criminal contempt regime. In Gascoyne v Custom and Excise Commissioners [2003] Ch 292, Neuberger J (as he then was) had to consider whether it would be an abuse of process for the Commissioners of Custom and Excise to commence condemnation proceedings in the High Court (which was not subject to any time limit) when he could have instituted condemnation proceedings in the magistrates court, which would have been subject to a time limit of 6 months which had expired. Rejecting the defendant’s complaint of abuse of process, Neuberger J stated as follows:-

“70. … The legislature, for reasons best known to itself, has given the commissioners the option of bringing condemnation proceedings either in the magistrates' court or the High Court, and I cannot see any reason, in principle or logic, for applying to High Court proceedings a time bar which plainly only applies to magistrates' court proceedings. Where legislation gives a person, whether a public body or a private individual, the option of taking one of two courses, each of which is subject to its own statutory and procedural rules, it seems to me that it would require the most exceptional circumstances before a statutory procedural rule, which was plainly promulgated in relation to only one of the courses, could be applied to the other course as well.
71. On the other hand, the notion that the commissioners have, almost literally, an infinite period within which to issue condemnation proceedings in the High Court cannot, to my mind, be right. It appears to me that, in any particular case, a time will come when it would be an abuse of their powers, and indeed an abuse of process, for the commissioners to issue condemnation proceedings, that is to say that such proceedings would, if issued, be struck out. It would be inappropriate to try to set out the sort of circumstances which might give rise to such a situation; whether such proceedings are or would be an abuse would have to be decided on the particular facts of the particular case. Plainly, in the great majority of cases, an abuse argument would be based on an unjustifiable or oppressive period of delay, or on some sort of assurance or indication that condemnation proceedings would not be issued in the High Court.”

18. I pause to observe that there is no suggestion, nor is there any ground to contend, in the present cases that the Secretary was guilty of unjustifiable or oppressive delay in making the application for fresh leave on 6 November 2015, or that some sort of assurance or indication had been given by the Secretary that committal proceedings would not be issued in the High Court against the respondents.

19. A similar argument, in the context of the same offence in civilian and military jurisdictions, was raised and rejected by the English Court of Appeal in R v Buchan [2007] EWCA Crim 716 and R v S [2013] EWCA Crim 2519.

20. Although the above cases arose in somewhat different contexts, they illustrate the difficulty of trying to import rules made specifically for one regime for application in another regime.

21. In support of his argument, Mr McCoy places heavy reliance on two cases, one a judgment of the House of Lord in R v Rimmington [2006] 1 AC 459, and the other a judgment of the Supreme Court of New Zealand in Siemer v Solicitor-General [2010] 3 NZLR 767.

22. In Rimmington, the defendants were charged with and convicted of the common law offence of causing a public nuisance, in one case by sending to several different people a total of 538 separate letters and packages containing racially offensive materials, and in the other by sending through the post to an old friend an envelope containing a cheque in repayment of a debt together with a small quantity of salt, which was intended as a humorous gesture or joke but which a postal worker, upon seeing some of the leaked salt, feared might be anthrax and raised an alarm leading to the evacuation of the building and cancellation of the second delivery of the post for that day. In the UK, conduct that was formerly chargeable as the crime of public nuisance at common law had largely become the subject of express statutory provision. Apparently, the prosecutor chose to proceed with the common law offence because (i) by the time that the first defendant was unmasked as the writer of the letters, many of the incidents were so old that there was a bar on any prosecution under statute, and (ii) the sentence available on conviction under statute was regarded as insufficient to mark the seriousness of that’s defendant’s conduct. It was in that context that consideration was given to the question of whether, where conduct was the subject of express statutory provision, it should be charged under the statutory provision and not as public nuisance at common law.

23. On that question, Lord Bingham of Cornhill said the following at paragraphs 30 and 31 of his speech in the House of Lords:-

“30. Where Parliament has defined the ingredients of an offence, perhaps stipulating what shall and shall not be a defence, and has prescribed a mode of trial and a maximum penalty, it must ordinarily be proper that conduct falling within that definition should be prosecuted for the statutory offence and not for a common law offence which may or may not provide the same defences and for which the potential penalty is unlimited… It cannot in the ordinary way be a reason for resorting to the common law offence that the prosecutor is freed from mandatory time limits or restrictions on penalty. It must rather be assumed that Parliament imposed the restrictions which it did having considered and weighed up what the protection of the public reasonably demanded. I would not go to the length of holding that conduct may never be lawfully prosecuted as a generally-expressed common law crime where it falls within the terms of a specific statutory provision, but good practice and respect for the primacy of statute do in my judgment require that conduct falling within the terms of a specific statutory provision should be prosecuted under that provision unless there is good reason for doing otherwise.
31. It follows from the conclusions already expressed in paras 29 to 30 above that the circumstances in which, in future, there can properly be resort to the common law crime of public nuisance will be relatively rare. It may very well be, as suggested by J R Spencer in his article cited in para 6 above, at p 83, that ‘There is surely a strong case for abolishing the crime of public nuisance’. But as the courts have no power to create new offences (see para 33 below), so they have no power to abolish existing offences. That is a task for Parliament, following careful consideration (perhaps undertaken, in the first instance, by the Law Commission) whether there are aspects of the public interest which the crime of public nuisance has a continuing role to protect. It is not in my view open to the House in resolving these appeals to conclude that the common law crime of causing a public nuisance no longer exists.”

24. In the same case, Lord Rodger of Earlsferry stated the following at paragraphs 52 to 54 of his speech:-

“52. When Parliament enacted the statutory offences, it did not expressly abolish the corresponding aspect of the common law offence of public nuisance. Therefore, if - contrary to my view - Mr Rimmington's conduct in writing the letters had amounted to a public nuisance, it would presumably have continued to do so even after the statutory offences were introduced. So a charge could not have been regarded as bad simply because it was framed in terms of the common law rather than in terms of the statute. To put the matter more generally, where Parliament has not abolished the relevant area of the common law when it enacts a statutory offence, it cannot be said that the Crown can never properly frame a common law charge to cover conduct which is covered by the statutory offence. Where nothing would have prevented the Crown from charging the defendant under the statute and where the sentence imposed would also have been competent in proceedings under the statute, the defendant is not prejudiced by being prosecuted at common law and can have no legitimate complaint.
53. Here, however, according to what Mr Perry told the House, the Crown had deliberately chosen the common law offence in order to avoid the time-bar which Parliament had enacted and to allow the judge, if he thought fit, to impose a heavier sentence than the one permitted under statute. The issue bears some resemblance to the issue in R v J [2005] 1 AC 562 . There is no suggestion, of course, that the Crown acted in bad faith. On the contrary, it is easy to understand why they did what they did. In a particular case, such as this, a time-limit which prevents prosecution once a certain time has passed since the act was committed can appear to be arbitrary and to reward an offender for concealing his offences. The sentence available under the statute may also seem inadequate to reflect the gravity of the defendant's conduct. But Parliament has deliberately chosen to intervene and to prescribe a period within which conduct of this kind can be prosecuted summarily under statute. This must be taken to reflect Parliament's judgment that, if the conduct has not been prosecuted within that time, the public interest is now against proceeding. That judgment may be based on various factors. Parliament may, for example, consider that after a certain period everyone should move on and prosecutors should turn their attention to other matters. Police and prosecution resources, it may be thought, are better spent on detecting and prosecuting recent, rather than stale, offences of this kind or recent, rather than old, incidents in a course of conduct. More serious matters should be given priority. Similarly, in the matter of sentence, Parliament has reached a view that certain conduct is appropriately covered by an offence which can be tried only summarily and which should attract no more than a particular level of sentence. Parliament has also fixed the maximum sentence to be imposed in summary proceedings, even where the defendant is convicted of more than one charge. Again, in any particular case, the sentence available under statute may appear to the prosecutor to be inadequate. But Parliament is entitled to place an offence in what it regards as the appropriate level in the hierarchy of offences and to limit the sentencing power of a court where the accused is not tried by jury.
54. It is not for the Crown to second-guess Parliament's judgment as to any of these matters by deliberately setting out to reject the applicable statutory offences and to charge the conduct in question under common law in order to avoid the time-limits or limits on sentence which Parliament has thought appropriate. It may be that, in the light of experience, Parliament's judgment can be seen to have been flawed or to have been superseded by events. Doubtless, the prosecuting authorities have channels through which they can-and perhaps should-draw any such perceived deficiencies to the attention of the Home Secretary. It is then up to ministers and, ultimately, Parliament to decide whether the law should be changed. But, unless and until it is changed, its provisions should be respected and the Crown should not devise a strategy to avoid them.”

25. In my view, the true principle to be derived from the above speeches of Lord Bingham and Lord Rodger is that it is a matter of statutory construction whether the legislature intends, by enacting the relevant statutory offence, that the prosecution should no longer be permitted to prosecute an accused person for a corresponding common law offence where his conduct can also be prosecuted as an offence under statute. It may be that the existence of the statutory offence can be taken as a pointer that the legislature intends that henceforth the prosecution should only proceed under statute. The question is, ultimately, one of statutory construction, and the proper question to ask is whether the legislature intends that the prosecution can only prosecute the accused person for an offence under the statute in the circumstances which have occurred.

26. Three further points are of note arising out of the judgment of the House of Lords in Rimmington. First, the situation in which Lord Bingham said it would ordinarily be proper that conduct falling within the ingredients of a statutory offence should be prosecuted for the statutory offence and not for a common law offence is where the legislature has enacted a specific statutory offence and the conduct complained of can be prosecuted both as the statutory offence and a generally-expressed common law crime. It does not seem to me that Section 23 can be regarded as the specific statutory offence designed or intended to cover the field of criminal contempt involving resisting or obstructing of a public officer or other person engaged in the execution of a court order.

27. Second, the corresponding common law offence still exists notwithstanding the creation of the relevant statutory offence by the legislature. For this reason, it must be the case that there could be occasions where it would be permissible, and indeed proper, for the prosecution to proceed with a charge under common law. As observed by Lord Bingham in the aforesaid quote from his speech, “good practice and respect for the primacy of statute do in my judgment require that conduct falling within the terms of a specific statutory provision should be prosecuted under that provision unless there is good reason for doing otherwise” [emphasis added].

28. Third, where the prosecution has proceeded under common law but the circumstances are such that it ought to have proceeded under statute, it is not the case that statutory protections such as those relating to time bar for prosecution or maximum sentence upon conviction should be imported into the common law offence. If, upon the true construction of the relevant statute, it is held that the prosecution can only prosecute the accused person for the statutory offence, the proper course to take, it seems to me, would be to dismiss the common law charge.

29. It may also be observed that in Rimmington, notwithstanding what was said about the interaction between the statutory offence and the common offence of public nuisance, as a matter of fact, the House of Lords allowed the defendants’ appeals because in one case the conduct of the sender of the racially offensive materials did not amount to the offence of causing a public nuisance, and in the other case the sender of the letter containing the salt lacked the necessary mens rea for the common law offence.

30. Rimmington was considered by the Hong Kong courts in two public nuisance cases concerning the same defendant, (i) HKSAR v Pearce [2006] 3 HKC 105, and (ii) HKSAR v Pearce [2009] 5 HKLRD 1.

31. In the first case, the defendant dressed himself in a “Spiderman” costume and mounted to the podium in a building in Central and hung a banner in front of a large TV screen. His actions drew crowds of onlookers and caused traffic congestion which lasted for about 2 hours. Fire Services set up rescue cushion and part of the road beneath was cordoned off. Vehicular traffic was diverted, and traffic lights were suspended. Police were called in for crowd and traffic control. Access to and from the shops in the building was impeded. Some shops closed and staff of the management company had to shepherd pedestrians along the detour. One of the defendant’s grounds of appeal against his conviction for public nuisance was that he should not have been charged with the common law offence of public nuisance when a statutory offence under section 4(28) of the Summary Offences Ordinance, which prohibited “any act whereby injury or obstruction, whether directly or consequentially, may accrue to a public place …” without lawful authority or excuse and prescribed a more limited penalty upon conviction, was available. Rejecting the defendant’s argument, Beeson J said the following at paragraphs 54 to 58 of her judgment:-

“54. Counsel for the Appellant argued, on the basis of Rimmington, that if a statutory offence existed it should be used, rather than the common law equivalent, unless there was good reason not to do so. However as counsel for the Respondent pointed out the offence had not been abolished and could be charged in appropriate circumstances.
55. Article 63 of the Basic law provides:
‘The Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions free from any interference.’
56. The choice of charge and venue for trial is the responsibility of the Secretary for Justice and his designated officers. The prosecution has a wide discretion as to the charge or charges it may lay and in the absence of bad faith, abuse of process, or perverse decision a court is unable to question the decision. Charges are laid and venues chosen according to prosecution policy and guidelines taking into account the gravity of the offence, the elements that can be proved and other factors such as prevalence, deterrence, community mores etc. The prosecutorial burden is a heavy one and it is for the Secretary for Justice to decide in what manner it is borne. Although the Appellant argued that the charge was inappropriate, it was not suggested that the common law offence was chosen, in the manner deprecated in Rimmington, to circumvent mandatory time limits, or limits on penalties.
57. The Respondent submitted that it was open to the Secretary for Justice to choose the charge, which, in the proper exercise of his discretion, he considered, properly reflected the gravity of the situation it was intended to deal with. Section 4(28) of the Summary Offences Ordinance, Cap. 228 was more commonly used to combat the mischief of hawkers or shop owners encroaching on and obstructing public space in some way, although it could be used, as it was in Yeung May-wan and HKSAR (2005) 8 HKCFAR 137, to deal with obstruction caused by demonstrators.
58. Nothing in the arguments put forward by counsel for the Appellant convinces me that the common law offence should not have been preferred. This ground of appeal fails.”

32. In the second case, the defendant unlawfully climbed onto Tsing Ma Bridge and, during a two-hour demonstration, roamed the six-lane upper deck and between two gantries using a makeshift crossing; hung three banners; spent significant periods without safety harness attached to any anchor; and placed one leg over the safety fencing twice threatening to jump off. Out of concern for the safety of the defendant and others, the authorities closed the entire upper deck, creating traffic jam which stretched 4 km in one direction and 12 km in another. The defendant again raised the objection that he ought to have been charged with the offence of obstruction under the Summary Offences Ordinance instead of the common law offence of public nuisance. Wright J dismissed the defendant’s objection, and said the following at paragraphs 25 to 27 of his judgment:-

“25. The appellant further raised a query why, in the light of the comments of Beeson J in HKSAR v Pearce, he had been charged with the common law offence of public nuisance rather than obstruction contrary to the Summary Offences Ordinance. The creation of a statutory offence does not abolish, of necessity, an existing common law offence, absent express indication: the restriction, if it maybe regarded as such, is against the prosecution charging a common-law offence with the express purpose of circumventing the statutory offence, especially, perhaps, as to either time limits or penalty.
26. Lord Bingham of Cornhill expressed it in this way in R v Rimmington, R v Goldstein [2005] UKHL 63:
‘30 … I would not go to the length of holding that conduct may never be lawfully prosecuted as a generally-expressed common law crime where it falls within the terms of a specific statutory provision, but good practice and respect for the primacy of statute do in my judgment require that conduct falling within the terms of a specific statutory provision should be prosecuted under that provision unless there is good reason for doing otherwise.’
27. It seems to me that good reason for prosecuting the appellant under the common law offence clearly existed in the instant matter…”

33. Returning to the cases at hand, I am unable to discern, from Section 23 or any other provision in the Summary Offences Ordinance, any legislative intention that, in the circumstances obtained here, the Secretary can only proceed against the respondents for an offence under Section 23 instead for criminal contempt in respect of their conduct complained of by the Secretary. I do not believe that the legislature intends, by enacting the offence of resisting or obstructing a public officer or other person lawfully engaged in a public duty under Section 23, that cases involving an open disobedience of an injunction order granted by the High Court (as alleged by the Secretary here) should or could only be prosecuted for the offence under Section 23 instead of the common law offence of criminal contempt. In any event, I consider that the Secretary’s reasons for deciding to pursue the criminal contempt route given by the DDPP (referred to in paragraph 15 above) amount to “good reasons” for prosecuting the respondents for the common law offence of criminal contempt instead of the offence under Section 23.

34. I next turn to consider the judgment of the Supreme Court of New Zealand in Siemer, which Mr McCoy says is “particularly apposite to the facts at hand” (see paragraph 9 of Mr McCoy’s written submissions). The issue in that case was whether a person founded to be in contempt of court and sentenced to 6 months’ imprisonment should have been allowed to elect for a jury trial in his contempt proceedings by virtue of the section 24(e) of the New Zealand Bill of Rights Act 1990, which provided as follows:-

“Everyone who is charged with an offence –
(e) Shall have the right, except in the case of an offence under military law tried before a military tribunal, to the benefit of a trial by jury when the penalty for the offence is or includes imprisonment for more than 3 months …”

35. By a majority, the Supreme Court of New Zealand held that the protection under section 24(e) of the New Zealand Bill of Rights Act 1990 was applicable to a person who was the subject of an application for committal for contempt, and substituted an order committing the appellant to prison for a maximum term of three months.

36. The decision of the Supreme Court of New Zealand in Siemer may support the proposition that the rights which a person charged with a criminal offence enjoys under the Hong Kong Bill of Rights are also available to a person who is the subject of an application for committal for criminal contempt. No relevant right under the Hong Kong Bill of Rights is, however, engaged in the present cases. Although Mr McCoy has referred the court to Articles 10 and 11 of the Hong Kong Bill of Rights, I do not see what right(s) which the respondents may be entitled to under those articles has or have been infringed.

37. On any reading, Siemer cannot support the proposition that a specific time limit of 6 months for commencement of contempt proceedings can be implied, whether generally or in the circumstances obtained in the present cases.

38. In all, I reject the argument that the Secretary was time barred from applying for fresh leave to apply for an order of committal against the respondents on 6 November 2015.

2^ND GROUND: FRUSTRATION OF LEGITIMATE EXPECTION

39. Mr McCoy next argues that the court should, in the exercise of its discretion, set aside the Second Leave on the ground of frustration of legitimate expectation, the relevant expectation being, it is said, the substantive protections of (i) a time bar for prosecution similar to that provided by Section 26 of the Magistrates Ordinance and (ii) a maximum sentence as prescribed by Section 23.

40. Mr McCoy submits that the Secretary’s circumvention of the aforesaid statutory protections, by electing to proceed with contempt proceedings instead of pursuing a Section 23 charge, comes under the third category of frustration of legitimate expectation as articulated by Lord Woolf MR in R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213, at paragraph 57:-

“There are at least three possible outcomes. (a) The court may decide that the public authority is only required to bear in mind its previous policy or other representation, giving it the weight it thinks right, but no more, before deciding whether to change course. Here the court is confined to reviewing the decision on Wednesbury grounds (Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223). This has been held to be the effect of changes of policy in cases involving the early release of prisoners: see In re Findlay [1985] AC 318 ; R v Secretary of State for the Home Department, Ex p Hargreaves [1997] 1 WLR 906. (b) On the other hand the court may decide that the promise or practice induces a legitimate expectation of, for example, being consulted before a particular decision is taken. Here it is uncontentious that the court itself will require the opportunity for consultation to be given unless there is an overriding reason to resile from it (see Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629) in which case the court will itself judge the adequacy of the reason advanced for the change of policy, taking into account what fairness requires. (c) Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.”

41. It is clear from the above judgment of Lord Woolf MR that before any legitimate expectation under the third category can arise, there must first be a lawful promise or practice by the decision maker inducing the expectation. In the present cases, the respondents have not been able to identify any relevant lawful promise or practice by the Secretary either that he would only charge the respondents for an offence under Section 23 and would not apply for an order of committal against them, or that any application for leave to apply for an order of committal would be made within 6 months of the conduct giving rise to the alleged contempt. There is, in my view, no proper basis for the alleged legitimate expectation which could have been frustrated by the Secretary’s decision to seek fresh leave to apply for an order of committal against the respondents on 6 November 2015.

42. Mr Benjamin Yu SC (for the Secretary) has also drawn my attention to the judgment of the Court of Appeal in The Queen v Soo Fat-ho, HCMA 982/1991 (26 June 1992), in which it was held that the concept of “legitimate expectation” has no place in the criminal law, although the court has power to stay proceedings on the ground of abuse of process. In R v Maxwell [2011] 1 WLR 1837, at paragraph 13, Dyson JSC said that the court has the power to stay proceedings in two categories of cases, namely, (i) where it will be impossible to give the accused a fair trial, and (ii) where it offends the court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case. The same principles were stated by Sir Anthony Mason NPJ (with whom the other members of the Court of Final Appeal agreed) in HKSAR v Lee Ming Tee (2003) 6 HKCFAR 336, at paragraph 182. In the present cases, I do not consider that it will be impossible to give the respondents a fair trial, or it will offend the court’s sense of justice and propriety to be asked to determine the Secretary’s complaint of criminal contempt against them in a public trial.

43. In all, I do not accept Mr McCoy’s argument that the court should, in the exercise of its discretion, set aside the Second Leave on the ground of frustration of legitimate expectation.

3^RD GROUND: COURT’S JURISDICTION AFTER LAPSE OF ORIGINAL LEAVE

44. This ground is raised by Mr Lawrence Lok SC and Mr Hectar Pun SC on behalf of their respective clients. In particular, Mr Pun argues that Order 52, rules 2(2) and 3(2) of the Rules of the High Court do not envisage any procedure for making a “second application” for leave after the original leave granted has lapsed due to a failure to comply with the time requirement under rule 3(2).

45. I have dealt with substantially the same argument in my earlier decision in Secretary for Justice v Chau Wan Ying and Others, HCMP 774, 776-781, 783, 784, 787-789, 791-798 of 2015 (8 March 2016), in which I came to the conclusion that the court has jurisdiction to entertain an application by the Secretary for fresh leave in the same proceedings in which the original leave, which had lapsed under Order 52, rule 3(2), was granted. If the court has jurisdiction to grant fresh leave in the existing proceedings in such circumstances, it seems to me obvious that the court must likewise have jurisdiction to grant fresh leave in new proceedings commenced by the Secretary.

46. Despite the submissions of Mr Lok and Mr Pun, I am not persuaded that the aforesaid conclusion reached in Chau Wan Ying is wrong. I am given to understand that my decision in Chau Wan Ying is currently under appeal to the Court of Appeal. Since the issue of jurisdiction will in due course be fully ventilated in the Court of Appeal, I do not propose to deal with this matter any further in this decision.

4^TH GROUND: ABUSE OF PROCESS

47. Mr Lok argues that it is was an abuse of process for the Secretary to apply for fresh leave for committal in new proceedings, in circumstances where (i) the originating summonses in the first set of proceedings have not yet been struck out, dismissed or withdrawn, and (ii) the costs of the first set of proceedings have not yet been paid.

48. In relation to the argument that it is an abuse of process for the Secretary to bring a second action while the first action is still extant and for duplicitous proceedings to be maintained over the same subject matter, Mr Lok relies on the judgment of Recorder Fok SC (as he then was) in Lam Pak Cheung v Lin Zhen Lue [2009] 1 HKLRD 35. In that case, the plaintiff commenced two separate actions against several parties, one by way of an originating summons in July 2006 and the other by writ of summons in November 2007, in relation to the same subject matter. The learned Recorder considered that the two sets of proceedings were materially duplicitous and that the plaintiff or his legal advisers should have realised, having regard to the complexity and nature of the disputes, that the originating summons procedure was inappropriate and the proper course was to issue proceedings by a writ of summons. He further came to the view that the only rational reason for the plaintiff wishing to keep the original action alive was in order to avoid the incidence of an adverse costs order being made in that action (paragraph 57). As such, the plaintiff’s stance in having commenced two overlapping sets of proceedings against substantially the same parties and for substantially the same relief but in seeking to keep the original action alive while prosecuting the second, more appropriate, action was an abuse of the court’s process (paragraph 58). The learned Recorder therefore struck out the first action.

49. Lam Pak Cheung is plainly distinguishable from the present cases. There is no question here of the Secretary seeking to avoid the incidence of any adverse costs orders being made in the earlier contempt proceedings. The court has already made costs orders in those proceedings which, I understand, are currently under assessment. The Secretary sought fresh leave for committal only because the original leave granted had lapsed. The original set of contempt proceedings can no longer be proceeded with in the absence of some further order of the court. I am unable to see how the seeking of fresh leave by the Secretary in such circumstances can be regarded as an abuse of the process of the court.

50. Reliance is placed by Mr Lok on what was said in paragraph 38 of the judgment in Lam Pak Cheung, as follows:-

“It has been held that, where proceedings are in existence based on a particular cause of action, it is prima facie an abuse of process to bring a second action based on the same cause of action and the latter action is liable to be struck out: see Buckland v. Palmer [1984] 1 WLR 1109, applied in Hong Kong in The Pertamina [1986] HKC 78.”

51. It is important to note the words “prima facie” in the above passage in the judgment of the learned Recorder. Whether a plaintiff has abused the court’s process by bringing a second action when there is in existence an earlier action based on the same cause of action must be determined by the court on the particular facts and circumstances of the case. As mentioned above, I do not consider the seeking of fresh leave by the Secretary on 6 November 2015 can be regarded as an abuse of the process of the court.

52. It should also be noted that in Lam Pak Cheung, there was no suggestion that the second, more appropriate, action should be struck out or stayed. What was under consideration was whether the first, inappropriate, action ought to be struck out or stayed (see paragraph 48 of the learned Recorder’s decision). There is no application before me to strike out or stay the first set of proceedings which, as earlier mentioned, can no longer be proceeded with in the absence of some further order of the court. It is thus not necessary for me to decide whether those proceedings ought to be struck out or stayed.

53. In relation to the argument that it is was an abuse of process for the Secretary to apply for fresh leave for committal where the costs of the first set of proceedings have not been paid, I am given to understand that the costs which the Secretary has been ordered to pay have not yet been assessed or agreed. The previous and present proceedings are publicly funded on both sides. There is no question of the Secretary not paying the costs incurred by the Director of Legal Aid on behalf of the respondents in the first set of proceedings once they have been assessed or agreed. I am simply unable to see how it would be right to set aside the present proceedings merely because the unascertained costs of the first set of proceedings have not yet been paid by the Secretary. It cannot possibly be in the interests of any parties, or in the public interests, for the Secretary to delay the fresh proceedings until after the costs of the first set of proceedings have been ascertained and discharged. Neither of the authorities cited by Mr Lok, namely, Investment Invoice Financing Ltd v Limehouse Board Mills Ltd [2006] WLR 985; and Global Bridge Assets Ltd v Sun Hung Kai Financial Ltd [2015] 5 HKLRD 553, can lead to the result contended for by Mr Lok.

DISPOSITION

54. For the foregoing reasons, I dismiss the respondents’ summonses with costs to the Secretary, to be taxed if not agreed with certificate for 2 counsel.

55. The respondents’ own costs are to be taxed in accordance with legal aid regulations.

56. I shall leave it to the parties to agree on the further directions to be given for the future conduct of these proceedings, including the fixing of trial dates pending any appeal against this decision to the Court of Appeal, with liberty to the parties to apply where necessary.

57. Lastly, it remains for me to thank counsel for the assistance that they have rendered to the court.

	(Anderson Chow) Judge of the Court of First Instance
	High Court

Mr Benjamin Yu, SC, Mr Victor Dawes, SC and Mr Martin Ho instructed by Department of Justice, for the applicant in (HCMP 2917, 2920-2923, 2926, 2928-2929, 2931-2932 of 2015)

HCMP 2917, 2920-2921 of 2015

Mr Hectar Pun, SC and Mr Earl Deng, instructed by JCC Cheung & Co, assigned by Director of Legal Aid, for the respondents

HCMP 2922-2923, 2926 of 2015

Mr Gerard McCoy, SC and Mr Albert N B Wong, instructed by Kenneth Lam, assigned by Director of Legal Aid, for the respondents

HCMP 2928-2929 and 2931-2932 of 2015

Mr Lawrence Lok, SC and Ms Christine Yu, instructed by Ho, Tse, Wai & Partners, assigned by Director of Legal Aid, for the respondents

SECRETARY FOR JUSTICE v. CHAN PAK TAO

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