Case Detail

HCMP 774/2015

HCMP 776/2015
HCMP 778/2015
HCMP 780/2015
HCMP 781/2015
HCMP 783/2015
HCMP 784/2015
HCMP 787/2015
HCMP 788/2015
HCMP 789/2015
HCMP 791/2015
HCMP 792/2015
HCMP 793/2015
HCMP 795/2015
HCMP 796/2015
HCMP 798/2015

(Heard together)

[2018] HKCFI 77

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NOs 774, 776, 778, 780,

781, 783, 784, 787, 788, 789, 791, 792, 793, 795, 796, 798 OF 2015

_________________

	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 2104/2014

_________________

BETWEEN
	SECRETARY FOR JUSTICE	Applicant
and
	CHAU WAN YING	Respondent in HCMP 774/2015
	(周蘊瑩)
	CHU WAI LUN	Respondent in HCMP 776/2015
	(朱緯圇)
	CHU PUI YAN	Respondent in HCMP 778/2015
	(朱佩欣)
	KWOK YEUNG YUK	Respondent in HCMP 780/2015
	(郭陽煜)
	SHUM LESTER	Respondent in HCMP 781/2015
	(岑敖暉)
	CHIU CHI SUM	Respondent in HCMP 783/2015
	(趙志深)
	CHAN PO YING	Respondent in HCMP 784/2015
	(陳寶瑩)
	CHEUNG KAI HONG	Respondent in HCMP 787/2015
	(張啟康)
	KWAN SIU WANG	Respondent in HCMP 788/2015
	(關兆宏)
	HUNG CHEUK LUN	Respondent in HCMP 789/2015
	(熊卓倫)
	FUNG KAI HEI	Respondent in HCMP 791/2015
	(馮啟禧)
	CHOI TAT SHING	Respondent in HCMP 792/2015
	(蔡達誠)
	SZETO TZE LONG JASON	Respondent in HCMP 793/2015
	(司徒子朗)
	WONG CHI FUNG	Respondent in HCMP 795/2015
	(黃之鋒)
	MAK YING SHEUNG	Respondent in HCMP 796/2015
	(麥盈湘)
	WONG HO MING	Respondent in HCMP 798/2015
	(黃浩銘)

_________________

Before: Hon Andrew Chan J in Court

Date of Hearing: 15, 27 June, 3, 6, 7, 10 – 13,17 – 21, 24, 26 – 28, 31 July, 2, 9, 22, 24 August, 13 October, 7 December 2017

Date of Reasons for Sentence: 17 January 2018

________________________

REASONS FOR SENTENCE

________________________

1. I deal first with all those who have admitted their liability.

HCMP 774/2015 Chau Wan Ying

2. In Ms Chau’s case, video footage depicted her presence in the Area from about 10:10 am to 11:40 am. She was seen standing behind the police check line near the junction of Argyle Street and Nathan Road and the junction of Shantung Street and Nathan Road. She was warned by police officers to leave but ignored the warning and was eventually arrested by the police. Ms Chau was not involved in the organisation of the protest on the day in question.

3. Ms Chau was 20 at the time and grew up in a single‑parent family. At present, she is pursuing an undergraduate study. A letter of her former teacher was produced. According to her teacher, despite the fact that she came from a modest family, Ms Chau had been a school prefect throughout. In order to alleviate her mother’s financial burden and supplement the family’s income, Ms Chau has since 2016 been providing private tuitions to school children and managed to earn $2,000 each month.

4. It was submitted that Ms Chau did not put up any resistance during her arrest. She was not affiliated to any political party and is now deeply worried that a term of imprisonment might affect her studies and future.

5. It is most unfortunate that Ms Chau did not pay heed to all the warnings given on that day. However, bearing in mind the limited role played by Ms Chau and her family’s financial situation, I believe an exception can be made in her case. In line with the others who have admitted their liability, Ms Chau will be given an imprisonment term of one month but suspended for 12 months with no additional financial penalty.

HCMP 776/2015 Chu Wai Lun

HCMP 787/2015 Cheung Kai Hong

HCMP 792/2015 Choi Tat Shing

6. In respect of Mr Chu, Mr Cheung and Mr Choi, video footage depicted their presence in the Area despite numerous warnings being given. None of them were involved in the organisation of the protest on the day in question, nor had they taken any active part in it. No violence was used by any of the three respondents either.

7. Mr Chu was 21 at the time. After completing his secondary school, he has been working as a cook. At present, he earns $6,500 a month. Mr Chu was not affiliated to any political party.

8. Mr Cheung was 27 and a computer maintenance technician at the time. At present, he only manages to work on part‑time basis with an hourly rate of $70. Mr Cheung was not affiliated to any political party.

9. Mr Choi was 18 at the time and was educated up to form 2. At present he works as a barista at an hourly rate of $36. He is a keen soccer player and has been recruited into the Hong Kong Premier League Reserve Division and wishes to make a career in football. He was not affiliated to any political party.

10. Given their limited roles, each of them will be given an imprisonment term of one month but suspended for 12 months and a fine of $10,000. They all have 3 months to pay and in default they will go to prison for one month.

HCMP 793/2015 Szeto Tze Long Jason

11. In Mr Szeto’s case, he was found not only present in the Area but also holding one loudhailer so that the others such as Mr Wong Chi Fung and Mr Wong Ho Ming could make a broadcast to the crowd. Mr Szeto was 20 and a student at the time. In 2014, he was the Secretary General (External Affairs) of the Student Union of the Chinese University of Hong Kong. Frustrated by the lack of progress in the democratic process, he took part in activities organised by the Hong Kong Federation of Students. It was his belief that civil disobedience was justified in this case. He was not affiliated to any political party.

12. At present, he works for one Legislative Councilor earning $14,000 a month. It was submitted that in anticipation of violence being resorted by both the protestors and the police, Mr Szeto decided to observe the clearance operation. He himself did not challenge the police, the Bailiffs and the Plaintiffs’ solicitors and their agents.

13. Video evidence showed that his role on that day did not confine to mere observation. Mr Szeto was seen holding a loudhailer and assisting others to make broadcast to the crowd, yet that was the full extent of his involvement. In sentencing him, I take all that into account.

14. In view of his involvement, Mr Szeto will be sentenced to 6 weeks’ imprisonment but suspended for 18 months. In addition, he will be fined $10,000. He has 3 months to pay the fine and in default he will go to prison for 6 weeks.

HCMP 781/2015 Shum Lester

15. In Mr Shum’s case, video evidence depicted his presence in the Area for an extended period of time. He stood at the forefront of the police check line together with Mr Wong Chi Fung and Mr Wong Ho Ming almost all the time.

16. Mr Shum was 19 at the time, a student of the Chinese University of Hong Kong. He was also the Vice President of the Student Union of the Chinese University of Hong Kong and the Secretary General of the Federation of Students. He however was not affiliated to any political party.

17. It was submitted that Mr Shum went to the Area on the day firstly to clarify matters which had been troubling him, namely whether protestors amounted to obstacles and the identity of the Plaintiffs’ agents, and secondly to ensure the safety of the protestors in their retreat.

18. It was submitted that Mr Shum had all along respected the court’s decision on granting the injunction and that his grievance was centred on the unwillingness of the government to respond positively to the demand of genuine universal suffrage. It was further submitted that although Mr Shum’s presence might have caused obstruction to the Bailiffs and the Plaintiffs’ agents, he was not violent in his activities and had not put up any resistance during his arrest. He went there simply as a representative of the Hong Kong Federation of Students to observe the clearance and that it had never been his intention to incite other to resort to physical violence. On the contrary, he had been asking protestors not to swear at the police and the police to allow the press to continue their reporting and filming. Most of the time, Mr Shum was simply standing next to the two Mr Wongs, paying attention to their questions.

19. Having viewed the video evidence carefully, I accept what had been said on his behalf. Mr Shum did not himself challenge the Bailiffs and the Plaintiffs’ agents. He stood most of the time quietly and passively next to the two Mr Wongs observing the clearance operation. Apart from standing at the forefront of the police check line, he practically did very little during the clearance operation.

20. Although he was a leading student figure during the “Occupy Movement”, his acts and movements on that day were not much different from any other protestors. The present contempt proceedings were brought against him specifically for his acts and movements on the 26th November 2014. Bearing all those in mind, Mr Shum will be sentenced to one month’s imprisonment but suspended for 12 months and fined $10,000. He has 3 months to pay the fine and in default will go to prison for one month.

HCMP 795/2015 Wong Chi Fung

21. In the case of Mr Wong Chi Fung, at the request of Mr Lok, I adjourned his sentence on the last hearing pending further written submission as to the applicability of S 109A of the Criminal Procedure Ordinance.

22. S 109A provides that no court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate.

23. Mr Lok accepted that in the English case of Morris and Others v Crown Office [1970] 2 QB 114, the English court had held that S 17(2) of the Criminal Justice Act 1948 (the wordings of which were almost identical to S 109A) had no place in criminal contempt proceedings, it was nevertheless submitted that the situation in Hong Kong was different from England in that Article 6(3) and 11(3) of the Hong Kong Bill of Rights were both applicable in Hong Kong.

24. Further it was argued that the wordings were broad enough to encompass those persons of or over 16 and under 21 years of age who might be sentenced to imprisonment for criminal contempt which was not an excepted offence.

25. It was argued primarily by Mr Lok that S 109A of the Criminal Procedure Ordinance was applicable in Mr Wong’s case and also to other respondents who were under the age of 21. It was contended that in sentencing a young offender, the court should heed the concern and intention of the legislative in that a young person should only be sentenced to imprisonment when it is absolutely necessary.

26. Article 6(3) of the Hong Kong Bill of Rights provides that the penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation and the juvenile offenders should be segregated from adults and be accorded treatment appropriate to their age and legal status. On a careful reading, it seems clear that Article 6(3) does not in any way place any restriction on the sentencing power of a judge in dealing with juvenile offenders. Its primary objective is aimed at our correctional service system. I fail to see the connection.

27. Article 11(3) of the Hong Kong Bill of Rights provides that in the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation. Again, the primarily objective of Article 11(3) is aimed at establishing a procedure in the dealing of juvenile offenders, such as the establishment of a juvenile court and the different forms of training offered by the Social Welfare Department or Correctional Services Department in promoting their rehabilitation. Hong Kong does provide such a procedure and system. I do not see the connection either.

28. After careful consideration of all the authorities, I am of the view that S 109A does not apply in the present proceedings. S 2 of the Criminal Procedure Ordinance defines “court” as “the Court of First Instance acting in the exercise of its criminal jurisdiction.” The definition is clear. The Court of Appeal in the Secretary for Justice v Cheung Kai Yin [2016] 4 HKLRD 367 (CA) has decided that the Court of First Instance is not exercising its criminal jurisdiction in respect of the present contempt proceedings. The decision of the Court of Appeal is binding on this court. Paragraph 33 of the judgment provides as follow:

“33. Adopting the approach in Re Kennedy (No 3), since the present sets of contempt proceedings stemmed from the execution of injunction orders granted by Au J in civil proceedings, they remain civil causes or matters notwithstanding that they are proceedings for criminal contempt. The appeals brought against the orders of Chow J are also appeals in civil causes or matters.”

As such, S 109A has no place in the present proceedings.

29. Returning to Mr Wong’s case, video evidence depicted his presence from 8:51 am to 10:20 am. During the clearance operation, Mr Wong repeatedly challenged the validity of the injunction order by demanding the Plaintiffs’ solicitors to explain who had been authorized to clear the obstacles, the identity of the Plaintiffs’ agents and their power in dismantling the barricades. His challenges to the Bailiffs and the Plaintiffs’ solicitors and their agents led to vehement exchange of abusive language between the protestors and the Plaintiffs’ agents, undoubtedly some were taxi drivers.

30. Every citizen of Hong Kong has the right to publicly protest against anything which displeases him and publicly proclaim his views provided that he does not infringe the right of others. These respondents rightly or wrongly thought that they had a grievance and as such they were entitled to protest. By 26 November 2014, it became apparent that their continued unlawful occupation of roads and streets especially in Mong Kok would not alter anything and would affect no one except ordinary citizens of Hong Kong in going about their daily routine. When the livelihood of our ordinary citizens had been adversely affected, such as the livelihood of the taxi and minibus drivers who had aged parents to support, mortgage and rent to pay, children to go to school, the court had to intervene and protect not just the right of the protestors but also the right to live of the vast majority of the people. In the turmoil of any political movement, it is unfortunately always the poorest and the working class who suffer the most.

31. Although Mr Wong stayed in the Area for just one and a half hours, his involvement in obstructing the clearance operation was deep and extensive. He played a leading role on that day. In view of his overall involvement, I am of the view that the only appropriate punishment for Mr Wong will be one of immediate imprisonment. For his part, Mr Wong will be sentenced to 3 months’ imprisonment, consecutive to the imprisonment term he is now appealing before the Court of Final Appeal as they are two separate and distinct incidents.

32. I now turn to those respondents who are found guilty after trial.

HCMP 778/2015 Chu Pui Yan

HCMP 780/2015 Kwok Yeung Yuk

HCMP 788/2015 Kwan Siu Wang

HCMP 789/2015 Hung Cheuk Lun

HCMP 791/2015 Fung Kai Hei

HCMP 796/2015 Mak Ying Sheung

33. In Ms Chu’s case, she was 23 at the time of her arrest. She works as an account clerk and earns $20,000 each month. Ms Chu was not affiliated to any political party. Letters from her friends and family had been produced to inform the court the kindness of and the stress faced by Ms Chu for the past 3 years. These people speak highly of her and her struggle to lead a normal life in the face of the present proceedings. They urge the court to impose a lenient sentence.

34. Mr Kwok was 19 at the time of his arrest. He is now a student studying nursing in his fourth year at the university and hopes to become a nurse. Mr Kwok was not affiliated to any political party. A large number of mitigating letters had been produced. Judging from those letters written by his tutors and professors at his university, it is apparent that Mr Kwok has spent his past few years, after the incident, focusing on acquiring all the necessary nursing skills and medical knowledge which enable him to become a better and more caring professional. He has excelled in his studies. In addition, he is also commended by one nursing ward manager for his dedication in looking after patients. These people have no doubt that Mr Kwok will turn out to be a useful citizen contributing his part in building a better Hong Kong.

35. Mr Kwan was 23 at the time of his arrest. He works as a freelance photographer and designer and earns around $11,000 per month. It was submitted that Mr Kwan had played a very passive role during the clearance operation. He did not commit any violent act, nor did he incite others to do so. He was most of the time just standing next to the two Mr Wongs and was co‑operative with the police during his arrest.

36. Mr Hung was 24 at the time of his arrest. He works as a baggage handler at the airport and earns $11,000 each month. Mr Hung was not affiliated to any political party. Again, mitigating letters from his superior and sister had been produced. They too urge for a non‑custodial sentence.

37. Mr Fung was 30 at the time of his arrest. He works as a waiter in a hotel and earns $17,000 per month. He was not affiliated to any political party. He is his aged parents’ sole financial support. It was submitted that Mr Fung was most of the time standing or walking around in the Area simply to show his support for the students. Again he did not commit any violent act. He was co‑operative with the police during his arrest.

38. Ms Mak was 33 at the time of her arrest. She held a bachelor degree in engineering and two master degrees. She had been working as a project manager in the toys industry for the past 8 years. Ms Mak was not affiliated to any political party. Due to certain dramatic change in family circumstances, Ms Mak has left her employment and now devotes all her time and energy in looking after her aged parents and her mother‑in‑law.

39. It was submitted that Ms Mak did not commit any violent act and was most of her time simply standing in the Area. She was co‑operative with the police during her arrest. Mitigating letters from her teachers and colleagues and certificate of appreciation from voluntary agencies had been produced. All these people speak highly of Ms Mak.

40. In respect of the above respondents, their movements and actions had been described in details in my judgment dated 13 October 2017 and I shall not repeat them. Suffice to say that they were all found to be present in the Area for an extended period of time and that they had participated in the protest. Evidence produced in this court showed that none of them was involved in the organisation of the protest even though some might be affiliated to political party. None of them had taken an active part in the protest.

41. These six respondents were found guilty after trial. They do not enjoy the benefit as those who had decided not to contest the case. It is therefore ordered that, except Mr Kwok and Ms Mak, each will be fined $15,000 and given an imprisonment term of 6 weeks but suspended for 12 months. They all have 3 months to pay the fine. In default of the payment, they will go to prison for 6 weeks. In the case of Mr Kwok and Ms Mak, because of their individual financial and personal circumstances, they will be given an imprisonment term of 6 weeks but suspended for 12 months with no additional financial penalty.

HCMP 783/2015 Chiu Chi Sum

HCMP 784/2015 Chan Po Ying

42. In respect of both Mr Chiu and Ms Chan, video footage depicted them assisting others in making broadcast to the crowd. Their involvement was limited to that extent. To put it simply, they were not mere protestors.

43. Video evidence however showed that both Mr Chiu and Ms Chan at no stage resorted to any violent behavior or the use of any abusive language. As the police check line advanced towards the direction of Tsim Sha Tsui, they were retreating and reacting passively.

44. Mr Chiu was 65 at the time of his arrest and works as a maintenance worker earning $12,000 per month. Ms Chan was 58 at the time of her arrest and works as a policy researcher earning $12,000 per month. In one hand‑written letter, Ms Chan explained in length her motive behind her participation. I understand it but express no view on that as the court is not the appropriate forum in engaging political debate.

45. As both of them were found guilty after trial, each will be fined $15,000 and sentenced to 2 months’ imprisonment but suspended for 18 months. They have 3 months to pay the fine. In default, they will go to prison for 2 months.

HCMP 798/2015 Wong Ho Ming

46. In Mr Wong Ho Ming’s case, video evidence depicted his presence from 8:44 am to 10:18 am. His acts and movements during the clearance operation were similar to those of Mr Wong Chi Fung. He constantly challenged the validity of the injunction order, the identity of the Plaintiffs’ agents, and queried whether human being amounted to obstacles. He mocked at the Plaintiffs’ solicitors and their agents with the intention of inciting the protesting crowd to continue their defiance, which resulted in hatred between the two groups.

47. Mr Wong was 26 at the time of his arrest. After graduation in 2011, he has been working as a community organiser earning $10,000 each month. Mr Wong played a significant and active role in obstructing the Bailiffs and the Plaintiffs’ solicitors and their agents during the clearance operation on the material day. Given his deep and extensive involvement during the clearance operation and that he was found guilty after trial, I am of the view that the appropriate sentence in his case will be one of immediate imprisonment. He is ordered to serve a term of 4 months and 15 days’ imprisonment.

Costs

48. 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 be taxed in accordance with Legal Aid Regulations.

	(Andrew Chan)
	Judge of the Court of First Instance
	High Court

Mr Victor Dawes, SC leading Mr Jin Pao and Mr Derek Chan, instructed by Department of Justice, for the applicant.

Mr Lawrence Lok, SC leading Miss Yu Cheuk Wing, Christine, instructed by M/s Ho, Tse, Wai & Partners assigned by DLA, for respondents in HCMP 774, 776, 778, 780, 781, 787, 789, 792, 793 and 795/2015.

Mr Hectar Pun, SC leading Mr Deng, Jundi Earl, instructed by M/s JCC Cheung & Co assigned by DLA, for respondents in HCMP 783, 784, 788, 791, 796 and 798/2015.

Press Summary (English)

Press Summary (Chinese)

HCMP 778/2015
HCMP 780/2015
HCMP 783/2015
HCMP 784/2015
HCMP 788/2015
HCMP 789/2015
HCMP 791/2015
HCMP 796/2015
HCMP 798/2015
(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS

NOs 778, 780, 783-784, 788-789, 791, 796, 798 OF 2015

_________________

	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 2104/2014

_________________

BETWEEN
	SECRETARY FOR JUSTICE	Applicant
and
	CHU PUI YAN (朱佩欣)	Respondent in HCMP 778/2015
	KWOK YEUNG YUK (郭陽煜)	Respondent in HCMP 780/2015
	CHIU CHI SUM (趙志深)	Respondent in HCMP 783/2015
	CHAN PO YING (陳寶瑩)	Respondent in HCMP 784/2015
	KWAN SIU WANG (關兆宏)	Respondent in HCMP 788/2015
	HUNG CHEUK LUN (熊卓倫)	Respondent in HCMP 789/2015
	FUNG KAI HEI (馮啟禧)	Respondent in HCMP 791/2015
	MAK YING SHEUNG (麥盈湘)	Respondent in HCMP 796/2015
	WONG HO MING (黃浩銘)	Respondent in HCMP 798/2015

_________________

Before: Hon Andrew Chan J in Court

Date of Hearing: 3, 7, 10, 11, 12, 13, 17, 18, 19, 20, 21, 24, 26, 27, 28, and 31 July 2017; 9, 22, and 24 August 2017

Date of Judgment: 13 October 2017

_________________

JUDGMENT

_________________

Introduction

1. This is a criminal contempt application, pursuant to leave granted on 30 July 2015, by the Secretary for Justice for the committal of the nine respondents in relation to events which took place on 26 November 2014 in the portion of Nathan Road between Argyle Street and Dundas Street in Mong Kok, Kowloon (“the Area”). This case is not about the right or wrong of the “Occupy Movement”.

2. The relief sought in the originating summons against the nine respondents includes that the respondent be committed to prison and / or fined for criminal contempt for interfering with and / or impeding the due execution on 26 November 2014 of the injunction order made by Au J on 10 November 2014 as amended on 21 November 2014 in HCA 2104 of 2014 by refusing to leave the Area covered by the injunction order despite repeated warnings.

3. The grounds for the application are set out in the Amended Statement of Facts filed in August 2015 in respect of each respondent. The Amended Statement of Facts sets out the background of the case. Most of the background facts are not disputed. They can be used conveniently as the background in this case.

Background

The Amended Injunction Order

4. As a result of what was generally known as the “Occupy Movement”, a significant part of the public highway in Mong Kok, namely, the portions of Nathan Road between Argyle Street and Dundas Street had been occupied by different individuals since late September 2014. The general public was thereby prevented to a varying extent from using the relevant roads/streets.

5. On 20 October 2014, Lai Hoi Ping (suing on his own behalf and on the behalf of all other members of Hong Kong Taxi Association) and Tam Chun Hung (suing on his own behalf and on the behalf of all other members of Taxi Drivers and Operators Association) (collectively “the Plaintiffs” in HCA 2104 of 2014 (“the underlying civil action”)) made an ex parte application on notice for an injunction against “persons occupying portions of Nathan Road near to and between Argyle Street and Dundas Street to prevent or obstruct normal vehicular traffic from passing and repassing the occupied areas” (“the 1^st Defendants in the underlying civil action”).

6. On the same day, before Poon J (as he then was) in chambers (open to the public), an injunction order was granted (“the ex parte injunction order”) until the return date on 24 October 2014.

7. The granting of the ex parte injunction order was widely reported in the mass media including, inter alia, English and Chinese newspapers with wide circulation in Hong Kong, major radio and television service providers such as Radio Television Hong Kong, Commercial Radio Hong Kong, and Television Broadcasts Limited, etc, and various sources on the internet (“the Local Media”).

8. At the hearing of the inter partes application on 24 and 27 October 2014, before Au J in chambers (open to the public), judgment was reserved after the inter partes hearing and the ex parte injunction order was continued in the meantime.

9. The inter partes hearing and the continuation of the injunction were also widely reported by the Local Media.

10. By judgment dated 10 November 2014, Au J ordered that the ex parte injunction order be continued (“the Injunction Order”). The terms of the order made were finalised after a directions hearing on 13 November 2014 and amended by the judgment of 21 November 2014 (“the Amended Injunction Order”). As amended, the terms were as follows: -

(1) The Defendants, and each of them, whether by themselves or agent or servant or howsoever, be restrained until trial or further order of the Court, from doing, any of the following acts, namely: -
(a) Occupying portions of Nathan Road between Argyle Street and Dundas Street (“the Area”) to prevent or obstruct vehicular traffic from passing and repassing the Area;
(b) Erecting, building or otherwise set up tents, canopies, barriers, barricades or other structures obstacles or obstruction, or doing any other act, to prevent or obstruct vehicular traffic from passing and repassing the Area; or
(c) Obstructing or interfering with, or doing any other act which deters, the Plaintiffs through their agents properly authorised in writing from or in dismantling or removing barriers and other obstacles and obstruction in or from the Area.
(2) The bailiff does take all reasonable and necessary steps to assist the Plaintiffs and its agents to effect the clearance and removal of the obstructions as provided in the Injunction Order.
(3) The bailiff be authorized and directed to request the assistance of the Police where necessary.
(4) Any police officer be authorized to arrest and remove any person who the police officer reasonably believes or suspects to be obstructing or interfering any bailiff in carrying out his or her duties in enforcing the terms of the Injunction Order, provided that the person to be arrested has been informed of the gist of the terms of the Injunction Order and this Order and that his action is likely to constitute a breach of the Injunction Order and this Order and obstruction of the administration of justice, and that he may be arrested if he does not desist.
(5) Without prejudice to the provisions of the Police Force Ordinance (Cap 232) (including S 51 and S 52 thereof), any person so arrested by the police shall be brought before the Court, under lawful or legal processes, as soon as possible for further directions.

The handing down of the judgment and the sealing of the Amended Injunction Order were also widely reported by the Local Media.

11. After the handing down of the judgment on 10 November 2104, various applications for leave to appeal were dismissed by Au J and by the Court of Appeal (Cheung CJHC, Lam VP) respectively. The dismissal of the leave applications was likewise widely reported by the Local Media.

Service of the Amended Injunction Order

12. Pursuant to paragraph 6 of the Amended Injunction Order, Au J granted leave to serve the Amended Injunction Order on the 1^st Defendants in the underlying civil action, by placing an advertisement in one Chinese and one English newspaper circulating in Hong Kong; and placing the Order (with a Chinese translation of the same) in clear plastic envelopes and attached to a board or post, or other prominent location in the Area (with the permission of the Police or another government authority), together with a notice (in Chinese and English) notifying the 1^st Defendants that they could obtain copies of the Order, the Inter Partes Summons, Writ of Summons and supporting Affirmations by applying to the Plaintiffs’ solicitors at an identified address during normal office hours upon payment of the usual photocopying charges.

13. An assistant solicitor of the solicitors for the Plaintiffs in the underlying civil action made an affirmation that on 24 November 2014, an advertisement of the Amended Injunction Order was made in one Chinese and one English newspapers, namely Sing Tao Daily and The Standard respectively, circulating in Hong Kong.

14. On 9 March 2015, Lee Chi Leung, a bailiff officer made an affirmation for the following actions: -

(1) on 24 November 2014, he served the Amended Injunction Order (together with a Chinese translation of the same) by placing them in a clear plastic envelope and attached to eleven different prominent locations at the portions of Nathan Road between Argyle Street and Dundas Street; and
(2) on 24 November 2014 he served the Notice of Injunction Order dated 24 November 2014 (together with a Chinese translation of the same) by placing them in a clear plastic envelope and attached to eleven different prominent locations at the portions of Nathan Road between Argyle Street and Dundas Street.

15. The service of the Amended Injunction Order was widely reported by the Local Media.

Execution of the Amended Injunction Order on 26 November 2014

16. Prior to 26 November 2014, it was already widely reported in the Local Media that the Plaintiffs and Bailiff Officers were going to take action on 26 November 2014 to execute / carry out the Amended Injunction Order.

17. Indeed, the Bailiff Officers did on 25 November 2014, execute / carry out the injunction order in similar terms granted by Au J in another case (ie HCA 2086 of 2014) over portions of Argyle Street between the junction of Tung Choi Street and that of Portland Street. The enforcement action of the said injunction order was widely reported by the Local Media.

18. On 26 November 2014, the Bailiff Officers executed the Amended Injunction Order in Mong Kok at the Plaintiffs’ request. Unless otherwise stated, all references as to time herein below refer to the time of 26 November 2014.

19. At about 8:00 am, Sergeant Li Kwong (“PW1”) (together with six other police constables) set up six loudspeakers and two metal stages at Nathan Road junction with Argyle Street (northbound and southbound carriageways), and two loudspeakers at Nathan Road junction with Dundas Street (northbound and southbound carriageways) (“the Police Public Announcement (“PA”) System”). The PA System was working properly throughout the operation on 26 November 2014.

20. Around 8:05 am, the Plaintiffs’ legal representatives and lawful agents, certain Bailiff Officers and Police Officers (“the Execution Team”) gathered at Argyle Street for the preparation of the enforcement of the Amended Injunction Order.

The First Announcements (Argyle Street junction with Nathan Road)

21. At about 8:40 am, Assistant Chief Bailiff Chiu Shuk Man (“PW2”) made an announcement at the junction of Argyle Street and Nathan Road (near to HSBC at No 675, Nathan Road). Through the loudhailer, PW2 explained to the crowd at the scene that the Bailiff Officers were there to enforce the Amended Injunction Order. The following announcement was made:

“各位在場人士注意，我哋係司法機構執達事務組嘅執達主任。
根據高等法院案件編號2014 年第2104 號於2014 年11 月10 日發出並於2014 年11 月21 日修訂嘅禁制令，執達主任會協助原告人嘅合法代理人，清除及移走阻塞車輛在介乎亞皆老街與登打士街之間的彌敦道各部份正常交通運行嘅障礙物。請在上述範圍內嘅人士，立即收拾你哋嘅物品離開。
任何人士，如果作出任何阻礙執達主任執行職務嘅行為，將有機會觸犯藐視法庭罪，執達主任會要求警方協助作出拘捕行動。
以下時間會由原告人代表律師，宣讀禁制令嘅內容。” (“the Bailiff’s announcement”)

Following that, the Plaintiffs’ legal representatives made an announcement in Chinese of the contents of the Amended Injunction Order through the loudhailer in the following terms:

“根據區慶祥法官於2014 年11 月10 日頒下並於2014 年11 月21 日修訂嘅法庭命令，要點為任何人均不得阻礙原告人嘅合法代理人清除及移走阻塞在介乎亞皆老街與登打士街之間的彌敦道各部份的正常交通運行嘅障礙物。
該法庭命令亦禁止任何人在上述範圍豎立或放置任何障礙物以堵塞該些入口及通道。
任何人不服從該法庭命令，有可能構成藐視法庭。
同時，法庭亦指示執達主任採取所有合理和所需嘅步驟協助原告人嘅合法代理人清除及移走該些障礙物。
在有需要時，執達主任可要求警方協助。
而當警方合理地認為或相信任何人正妨礙或阻礙執達主任履行本法庭命令，只要該等人士已獲悉
（1）本法庭命令嘅要點；
（2）佢咁嘅行動可能構成違反法庭命令及妨礙司法工作；
（3）而如果佢仍然不停止咁嘅行動有可能會俾警方拘捕；
係咁嘅情況下警方有權拘捕或移走任何有關人士，並將被拘捕人士在切實可行範圍內儘快送到法庭上，作進一步嘅指示。” (“the Plaintiffs’ announcement”)

22. Following that, shortly before 8:44 am, PW2 made another announcement to the effect that the lawful agents of the Plaintiffs would execute the Amended Injunction Order and clear the obstacles at the Area within 30 minutes. The crowd was also advised to obey the Amended Injunction Order and to leave the Area immediately.

The Second Announcements (Nelson Street junction with Nathan Road)

23. At about 8:45 am, Acting Assistant Chief Bailiff Yu Tak Shun (“PW4”) repeated the Bailiff’s announcement through a loudhailer near the junction of Nelson Street and Nathan Road outside Watson’s at 637 Nathan Road. Following that, the Plaintiffs’ legal representatives also repeated the Plaintiffs’ announcement at about the same location.

24. Shortly before 8:50 am, PW4 made another announcement to the effect that the lawful agents of the Plaintiffs would execute the Amended Injunction Order and clear the obstacles at the Area within 30 minutes. The crowd was also advised to obey the Amended Injunction Order and to leave the Area immediately.

25. After the aforesaid announcements, the Execution Team marched down Nathan Road towards Dundas Street. During the course, a crowd of people (including Mr Wong Chi Fung and Mr Wong Ho Ming) kept asking about the terms of the Amended Injunction Order and the details of the enforcement action. In response, Chief Bailiff Kwan Sek Nam Sunny (“PW3”) informed them that the Bailiff Officers would soon announce the details and invited them to listen carefully to such announcements.

The Third Announcements (Shantung Street junction with Nathan Road)

26. At about 8:51 am, PW2 repeated the Bailiff’s announcement through a loudhailer at the junction of Shantung Street and Nathan Road. Following that, the Plaintiffs’ legal representatives also repeated the Plaintiffs’ announcement at about the same location.

27. Shortly before 8:56 am, PW2 made another announcement to the effect that the lawful agents of the Plaintiffs would execute the Amended Injunction Order and clear the obstacles at the Area within 30 minutes. The crowd was also advised to obey the Amended Injunction Order and to leave the Area immediately.

The Fourth Announcements (Dundas Street junction with Nathan Road)

28. At about 9:05 am, PW4 repeated the Bailiff’s announcement through a loudhailer at the junction of Dundas Street and Nathan Road. Following that, the Plaintiffs’ legal representatives also repeated the Plaintiffs’ announcement at about the same location.

29. Following that, shortly before 9:10 am, PW4 made another announcement to the effect that the lawful agents of the Plaintiffs would execute the Amended Injunction Order and clear the obstacles at the Area within 30 minutes. The crowd was also advised to obey the Amended Injunction Order and to leave the Area immediately.

The Final Announcements (Argyle Street junction with Nathan Road)

30. At about 9:49 am, the Execution Team was back at the junction of Argyle Street and Nathan Road near the barricades set up there. At the time, PW4 and PW2 respectively announced, through the loudhailer, in Chinese and English, that the lawful agents of the Plaintiffs would immediately execute the Amended Injunction Order and clear the obstacles in the Area. Following the announcements, at about 9:53 am, PW2 requested the Plaintiffs’ legal representatives and the lawful agents to clear the barricades (which consisted of Mills barriers, planks and other objects) in front of them.

Clearance of the Barricades

31. During the clearance of the barricades near HSBC (at the junction of Argyle Street and Nathan Road), Mr Wong Chi Fung and Mr Wong Ho Ming kept asking through loudhailer about the identity of the Plaintiffs’ lawful agents, and quarreled with the Plaintiffs’ lawful agents who wore red‑and‑white T‑shirts and red caps for easy identification on that date. The Bailiff Officers repeatedly requested both parties to keep calm.

32. At about 9:59 am, part of the barricades at the junction of Argyle Street and Nathan Road had already been cleared by the Plaintiffs’ lawful agents. At this juncture, there was a commotion in the crowd which cried out loudly and pushed against the Execution Team. Assistant Chief Bailiff Chim Fung Ling (“PW5”) immediately advised the crowd (through the loudhailer) to keep calm and not to obstruct or impede the Bailiff Officers from carrying out their duties. During the confusion, PW5 was pushed; PW2’s sunglasses fell off to the ground; and PW4’s right shank was hit by a Mills barrier.

Request for Police Assistance

33. PW5 immediately made the following warning:

“根據區慶祥法官於2014 年11 月10 日頒下並於2014 年11 月21 日修訂嘅法庭命令，要點為任何人均不得阻礙原告人嘅合法代理人清除及移走阻塞車輛在介乎亞皆老街與登打士街之間的彌敦道各部份正常交通運行嘅障礙物。
你嘅行為係會阻礙執達主任執行職務。如再繼續此行為，有可能觸犯藐視法庭罪，請你立刻停止。否則，我哋會要求警方協助去拘捕你。”

34. Despite such warning, the crowd did not desist. Therefore, Chief Bailiff Choi Tak Ming (“PW6”) formally requested the assistance from the police at about 10:00 am pursuant to paragraph 3 of the Amended Injunction Order. Acting on such request, the police started to take charge of controlling the crowd and clearing the barricades.

Police Actions

35. At about 10:05 am, Chief Inspector of Police Lam Chi Yuen (“PW7”) issued a verbal warning (via the PA System) at Nathan Road near Argyle Street to the crowd in Chinese and English in the following terms:

“ 前面人群注意。這是警方發出的警告。高等法院的執達主任，正在此根據高等法院的命令，清除及移走路上的障礙物。高等法院命令的副本，已在附近張貼，並已在報章刊登。執達主任/代表原告人的律師亦已在這裡現場解釋法院命令的要點。任何人阻礙或干擾執達主任及協助執達主任的人員執行高等法院的命令，可能違反法院命令和阻礙司法工作。這些行為可能構成刑事藐視法庭和干犯香港法例第228章《簡易程序治罪條例》第23條的抗拒或阻礙公職人員罪，干犯此兩項的任何一項，都可被判監禁及罰款，此外，這些行為亦可能構成其他的刑事罪行。你們必須立即停止阻礙或干擾執達主任及協助執達主任的人員，否則你們可能會被拘捕及檢控。
This is a Police warning to the crowd in front of me. The bailiffs of the High Court are now clearing and removing the obstructions here in accordance with an order / orders of the High Court. Copies of the order(s) is / are displayed nearby and has/have been published in the newspapers. Bailiffs / solicitors acting for the plaintiff(s) have explained the gist of the court order(s) here. Any person who obstructs or interferes with any bailiff or person assisting him in enforcing the High Court order(s) may be in breach of court order(s) and obstructing administration of justice. Such conduct may constitute criminal contempt of court and an offence of Resisting or Obstructing a public officer under section 23 of the Summary Offences Ordinance (Cap. 228). Either of these may result in imprisonment and a fine. Furthermore, such conduct may also constitute other criminal offences. You must immediately stop your obstruction and interference with the bailiffs and those assisting them, otherwise you may be arrested and prosecuted.”

36. At about 10:12 am, PW7 made an announcement to the press at the scene requesting them to follow the instruction of the Police Media Liaison Team to retreat from the area of Police operation.

37. At about 10:15 am, as the crowd ignored the verbal warning, PW7 gave a final verbal warning (via the PA System) to the crowd at the same location in Chinese and English in the following terms:

“ 前面人群注意。這是警方發出的最後警告。你們必須立即停止阻礙或干擾高等法院執達主任及協助他們的人員清除及移走路上的障礙物。如你們不立即停止，警方會按涉嫌刑事藐視法庭，抗拒或阻礙公職人員罪，和你們已涉嫌干犯的其他罪行拒捕你們，如有必要會使用最低的武力執行拘捕，而不會再作任何警告。
This is the final warning made by the Police to the crowd in front of me. You must immediately stop obstructing or interfering with bailiffs of the High Court or those assisting them in clearing and removing the obstructions on the road. If you do not stop immediately, police officers will arrest you for suspected criminal contempt of court, resisting or obstructing a public officer, and other offences which you are suspected to have committed, and police officers will use minimum force for making arrests if necessary. No further warning of arrest will be issued before arrest action.” (“the final warnings”)

38. Notwithstanding the repeated warnings from the Bailiff Officers and the Police as aforementioned, the crowd still refused to leave the Area. As a result, PW7 instructed the police officers at the scene to arrest those people who caused obstruction in the Area and refused to leave.

39. With such instruction of PW7, the police check line (which was formed by police officers) progressed from the junction of Argyle Street and Nathan Road along Nathan Road towards Tsim Sha Tsui direction.

40. Between 10:25 am and 12:00 pm, Chief Inspector of Police Sean Lin (“PW8”) and Senior Inspector of Police Cheung Kin Pan (“PW9”) took turn to make public announcements through the PA System and a microphone along Nathan Road from Argyle Street towards Dundas Street. The content of such public announcements included advice to the crowd, onlookers and press at scene to take care of their own safety, that the police might raise the level of appropriate use of force, including the use of water jet pack of pepper‑spray‑based solution, if deemed necessary. PW8 and PW9 also advised the crowd to leave the Area via Tsim Sha Tsui direction in an orderly manner and not to obstruct police officers in the execution of their duties.

41. At about 11:07 am, the police check line reached the junction of Shantung Street and Nathan Road. At the time, the crowd gathered again at the junction of Shantung Street and Nathan Road. Whilst the police officers at the scene continued to advise the crowd to leave the Area via Tsim Sha Tsui direction, PW7 issued the final warnings once again. Afterwards, the police officers started arresting those people causing obstruction and refusing to leave.

42. The enforcement action of the police officers continued up to 12:40 pm when all the barricades on the portions of Nathan Road from Argyle Street to Dundas Street were cleared.

43. During the operation, several police video teams were deployed to capture the incident from different locations.

44. Before the consideration of each of the respondent’s case, a number of issues, common to some if not all, had been raised.

Criminal Contempt

45. One of the issues argued by the respondents, in particular, respondents represented by Mr Lok, was the elements of the offence of criminal contempt. It was submitted that, in order to succeed, the applicant had to establish the necessary mens rea, namely that each respondent had the intention to interfere with the administration of justice.

46. Mr Lok essentially relied on two judgments. The first was Chiu Luen Public Light Bus Co Ltd v Persons Unlawfully Occupying or Remaining on the Public Highway and others (2014) 6 HKC 298. When Au J dealt with the police authorisation direction, he mentioned in his judgment the following passages:

“123. Any person who obstructs the bailiff's performance of his duties would be in criminal contempt of the court:
(1) An intention and act to interfere with or impede the due administration of justice is a criminal contempt: Halsbury's Laws of England, Vol 22, paragraph 5.
(2) Thus, a person who, with knowledge of a court order, and deliberately impedes the bailiff in the due execution of his duties has both the requisite actus reus and mens rea of a criminal contempt as his conduct intentionally and deliberately interferes with or impedes the due administration of justice: AG v Times Newspapers [1992] 1 AC 191 at 208E‑F, 208H‑209B, 216A‑D; Dobson v Hastings [1992] Ch 393 at 402D‑403D.
(3) It is therefore a criminal contempt to obstruct or impede a bailiff in the execution of his duties: Halsbury's Laws of England, Vol 22, paragraphs 17 and 49.
124. Criminal contempt is a common law offence punishable by imprisonment: Arlidge Eady & Smith on Contempt (4^th ed), paragraph 3‑67.
125. At the same time, Police are empowered under the Police Force Ordinance (Cap 232) to arrest a person suspected of being guilty of criminal contempt as:
(1) Under s 50(1)(a), it shall be lawful for any police officer to apprehend any person who he reasonably believes will be charged with or whom he reasonably suspects of being guilty of any offence for which a person, among others, may (on a first conviction for that offence) be sentenced for imprisonment;
(2) Under s 10(j), the duties of the police force shall include taking lawful measures for executing summonses, subpoenas, warrants, commitments and other process issued by the courts.
126. In the premises, a police officer is empowered in law to arrest any person who he reasonably believes or suspects of being guilty of criminal contempt (which is [punishable] by imprisonment on a first conviction) in obstructing or impeding the bailiff in executing his duties in enforcing a court order, such as the injunctions granted herein.
127. Thus, the police authorisation direction is only to re-state what the law has empowered the police to do.”

47. Mr Lok placed particular emphasis on paragraph 123(2). After a careful read of the judgment, it seems clear to me that Au J was principally examining the origin of the police power to arrest, hence the offence of criminal contempt was mentioned. What Au J did not do was to analyze and assess the mens rea requirement in any depth. Cases cited to him were cases from England post 1981. For reasons stated below, we now know that those cases should be read with caution.

48. The same can be said of the second judgment relied on by Mr Lok. In the Secretary for Justice vYuen Oi Yee Lisa (unreported, HCMP 2390/2008, 25 October 2010), Chu J made the following observation:

“20. As for criminal contempt (such as conduct which interferes with or threatens the due administration of justice), what has to be shown is the intentional and conscious doing of an act or the bringing of a state of affairs which objectively is likely to bring about such interference. The mens rea required is an intent to interfere with the course of justice, but it needs not be the sole intent and it may be inferred: Attorney General v. Punch Ltd [2003] 1 AC 1046, at paras.4, 66 and 87 & Attorney General v. Newspaper Publishing Plc [1988] Ch 333 at 383B‑C.”

49. Again, Mr Lok placed emphasis on “the intent to interfere with the course of justice”. In fact, four days before on 21 October 2010, Wright J delivered the judgment in the Secretary for Justice v Ng Wai Bing [2011] 5 HKLRD 620 in which, after consideration of the history of criminal contempt and relevant authorities from England as well as Australia and New Zealand in details, he came to the conclusion that the proof of specific intent to interfere with the administration of justice was not required.

50. Wright J mentioned in his judgment:

“57. In the circumstances I am satisfied that the applicant need only show basic intent, that is that the respondents intended to perform the acts which constituted the actus reus of the contempt.”

51. As to cases cited from England prior to 1981, Wright J sounded the warning:

“45. .... However, in 1981 the Contempt of Court Act was passed in England which had the effect of limiting the application of the strict liability rule in contempt proceedings. No such equivalent legislation exists in Hong Kong. Consequently, the decisions of the English Court of Appeal as well as views expressed by commentators subsequent to 1981 discussing the question of intent in criminal contempt proceedings need to be approached with caution.”

52. Nowhere in Chiu Luen Public Light Bus or Yuen Oi Yee Lisa was there any detailed argument or discussion about the necessary requirements of mens rea in criminal contempt.

53. In addition to discussion regarding mens rea, the actus reus of the offence was also discussed in Ng Wai Bing. Paragraphs 58 and 60 of Wright J’s judgment continued as follows:

“The nature of the act
58. The act which is said to constitute contempt of court is conduct calculated to prejudice or interfere with the due administration of justice, is inherently likely to do so.
…
60. There is no merit in the initial contention by the first and second respondents, albeit not later pursued, that the Court is confined to already established examples of contempt of court. ‘Contempt of court has indeed been called “the Proteus of the legal world, assuming an almost infinite diversity of forms.”’ (per Kriegler J in S v Mamabolo 2001 (3) SA 409, para.13). It will be a matter of fact and degree in every instance whether or not the alleged contempt is made out. ‘Whether such a risk has been established will depend on the circumstances of each case including the nature of the act done or the language of the publication used.’ – Secretary for Justice v Oriental Press Group Ltd.”

54. The case went to the Court of Appeal (Tang and Stock V‑PP and Fok JA as they then were). Tang VP expressed his agreement:

“23. I have no doubt that the conduct of the first and second respondents (see, for example, the agreed facts quoted in para.9 above) amounted to a criminal contempt of court, and I agree with Wright J that:
[53] … proof of a specific intent to interfere with the administration of justice would not be a prerequisite for liability for criminal contempt …
…
[57] In the circumstances I am satisfied that the applicant need only show basic intent, that is that the respondents intended to perform the acts which constituted the actus reus of the contempt.
The nature of the act
[58] The act which is said to constitute contempt [of] court is conduct calculated to prejudice or interfere with the due administration of justice, is inherently likely to do so.
…
[69] It follows that I am satisfied that the conduct of unauthorized recording of conversations of witnesses or potential witnesses at court will constitute a contempt of court.” (emphasis added)

As far as this court is concerned, the elements of the offence of criminal contempt have been settled by Ng Wai Bing[1]. That decision is binding.

55. Translating that into the present case, the applicant in order to succeed, needed only to prove that each of the respondents with the intention to remain, did remain in the Area. Further, their conduct in remaining was inherently likely to prejudice or interfere with the due administration of justice given the circumstances that the Bailiffs and the Plaintiffs’ agents were about to execute or executing the Amended Injunction Order in effecting the clearance and removal of obstacles. Whether each of the respondents did, in fact, obstruct or interfere with those who were responsible for clearing up the obstacles was not part of any legal requirement. Of course, if the evidence shows that the respondent did in fact obstruct or interfere with the clearing up of the obstacles, afortiori, it would amount to criminal contempt.

56. It was further argued that since the respondents were doing nothing more than remaining at the Area, ie given their mere presence, they were at most only liable for disobedience of Term (a) of the Amended Injunction order, hence civil contempt. In any given date prior to the 26th, I accept that that may be the case. However, this argument in my view ignores (i) the factual matrix against which the injunction was granted in the first place and that people had continued to occupy the Area; (ii) that at each stage of the injunction proceedings, the subject matter of the hearings and the result had been widely reported and advertised in the Local Media; (iii) that the clearance of obstacles on the previous day at Argyle Street had received extensive media coverage; (iv) that the imminent operation on the 26 November 2014 was widely reported likewise; and (v) that the warnings given by the Bailiffs and the Plaintiffs’ solicitors, in particular the demand made by the Bailiffs to the crowd in the Area to immediately pack their belongings and leave. The Bailiff’s demand in Chinese was: “請在上述範圍內嘅人士，立即收拾你地嘅物品離開。”

57. Whether each of the respondents intentionally chose to remain and did remain at the Area, again adopting the words of Wright J, would be a matter of fact and degree in every instance, whether or not the alleged contempt was made out.

58. It was somehow suggested that criminal contempt involved a “serious” interference with the administration of justice or a “serious” affront to the authority of the court. In other words, the interference and affront had to be serious, nothing less would suffice. In support of this legal proposition, the respondents relied on the Secretary for Justice v Cheung Kai Yin (No 2) [2016] 5 HKLRD 370.

59. Having read the judgment carefully, I do not think the Court of Appeal was adding an additional element into the offence. The word “serious” was used simply because in that case the Court of Appeal was contrasting criminal contempt with firstly the minor nature of the summary offence of Obstruction of Public Officer and secondly the mere disobedience of a court order, a less serious form of interference with the administration of justice. The word “serious” came into play under those legal contexts.

Police Power of Arrest

60. Another issue raised during the course of the trial was the source of police power in arresting the respondents in this case. Having read paragraphs 126 and 127 of Au J’s judgment, it is clear that the police power originated from the Police Force Ordinance. Term (4) of the Amended Injunction Order did not confer onto the police extra power, rather it simply reinstated the origin of the police power in an unambiguous manner, so that, there was no confusion. This point was subsequently confirmed by the Court of Appeal (Cheung CJHC and Lam VP) in Chiu Luen Public Light Bus Company Limited v Persons Unlawfully Occupying and others (unreported HCMP 3028/2014 dated 21 November 2014):

“19. We do not think there is any risk of confusion. As the judge had explained at paras 127 to 130 of the judgment, the arrest provision only set out what the law has already conferred on the police. The order itself is not the source of such power. Neither does the order confer any additional power on the police. Further, the arrest provision does not compel the police to make any arrest. As explained by Justice McLachlin in MacMillan Bloedel v Simpson, supra, such a provision only serves to alert persons being served with or given notice of the order the potential serious consequences for a breach of the order. In the end, it is still a matter for the police officer to decide whether he should exercise his power of arrest as a police officer.
20. At one stage, we were concerned about whether the arrest provision places undue restrictions on the police by setting the following prerequisites: (a) informing the person concerned as to the gist of the injunction; (b) warning him that his action is likely to constitute a breach of the injunction; and (c) warning him also the possibility of his being arrested if he does not desist. These requirements were obviously laid down for the protection of the defendants and persons against whom the bailiff takes action pursuant to the order. On a proper reading of the order, it is clear to us that those are steps to be taken by the bailiff in the execution of his duty under the order and the person concerned will be given a last opportunity to comply with the order voluntarily. In our view, these are steps a bailiff would have to take before a case of obstruction or interference with the carrying out of his duties can be made out. Whether a police officer would like to repeat any of these steps before he exercises his power of arrest is entirely a matter for him to decide. Viewed thus, these requirements cannot be regarded as undue restrictions on the proper exercise of police power.”

61. Consequently, in so far as the arrest of each of the respondents by the police is concerned, its relevance lies in the fact that by the time the police took arrest action, the respondents were still present at the Area (subject to the allegation that they were not allowed to leave). The circumstances pertaining to their actual arrest bore little relevance to whether they had committed criminal contempt.

The Pleaded Case

62. In the course of the trial and more particularly during final submission, it was put forward by the respondents that the applicant had departed from their pleaded case and attempted to introduce new grounds and caused unfairness to the respondents in meeting their cases.

63. The alleged new grounds contained descriptions of the respondents’ other movements and conducts when they were present at the Area, for example in Chu Pui Yan’s case, the inclusion of her presence at an earlier time and posing for photographs with other people.

64. The purpose of Order 52 statement is simply to provide the respondents with enough information so as to enable them to meet the charge. It is not required to set out all the relevant evidence relied upon to establish the contempt.[2]

65. The case pleaded by the applicant was a lengthy one. It started with background information and ended with the arrest of each respondent. Paragraphs 4 to 43 stated above contain most of the pleaded case except the details in respect of the arrest of each of the respondents. In the pleaded case, the crowd was however referred to as the “obstructing crowd” and the allegation of the presence of each respondent was made in that light. The applicant then described the evidence that they would essentially rely on, namely video evidence that captured the acts and movements of the respondents. Given the length of the video evidence, particulars of their acts and movements were given. The pleaded case then concluded with the following paragraphs:

“In the premises, the respondent:
(1) was in the Area for an extended period of time and must have heard the repeated requests and warnings made by the Bailiffs / police officers prior to the arrest;
(2) had ample opportunities to leave the Area prior to the arrest but decided against doing so; and
(3) the actions taken by the respondent constituted a breach of the Amended Injunction Order. By reason of the aforesaid, the respondent must have been aware of this and the breach was intentional.
The deliberate acts of the respondent identified, coupled with his determination to continue flouting the Amended Injunction Order constituted interference with and / or impediment to the due administration of justice by obstructing or resisting the police and / or Bailiff Officers in executing the Amended Injunction Order, and therefore amounted to criminal contempt of court.”

66. In my view, the pleaded case was clear. It was the presence of the respondents and their acts and movements which had caused interference and / or obstruction to the clearance operation. One should have little difficulty in understanding the applicant’s case on any objective reading. If that was not clear enough, the opening of the applicant put the applicant’s position beyond any dispute. At paragraph 85 of the opening it was stated that the essential allegation against each respondent was that they were found present in the Area during the execution of the Amended Injunction Order.

67. Subject to fairness, addition of new evidence is not unacceptable. In the case against Chu Pui Yan, the applicant was permitted to add fresh particulars which indicated her presence at much earlier times. The ground relied upon by the applicant remained the same, namely that the respondent was found to be present in the Area as part of the crowd despite numerous warnings being given. Her presence at earlier times was only revealed because video footage (unused by the applicant initially) had been used by the respondent in cross‑examining witnesses for the applicant. It was further argued by Mr Lok that this court should not be looking at any other video footage, either before or after the one used for cross examination, even though they were taken by the same police officer within the same video. I disagree. Matters must be judged in their context. So long as they are relevant to the determination of an issue in this case, I do not see any rule precluding the court from viewing them. In any event, all the video evidence, whether used or unused video, had been provided to the respondents prior. No challenge had been made as to the authenticity of the video. No witness was required to be recalled and as such I fail to see any unfairness. The same can be said to be applicable to other respondents.

68. Bearing in mind the elements of the offence, I now proceed to evaluate the evidence against each of the respondents.

69. These proceedings are brought by the Secretary of Justice against the nine respondents, the burden of proof rests on the former throughout and the standard of proof required is beyond reasonable doubt. Although a number of witnesses had been called by the applicant, with the exception of a few, their evidence was practically unchallenged. This was so because the most crucial evidence came from the video footage taken by different teams of police officers. Generally speaking, very little challenge was made against witnesses’ credibility. In view of the rather chaotic situation on that day, reliability issues were taken in respect of some witnesses. Again these issues were not seriously challenged. Given the existence of the unchallenged video evidence, the facts of this case, in particular the relevant conducts of each respondent, could therefore be readily ascertained with little difficulty.

70. I will first deal with Mr Lok’s three clients.

HCMP 778/2015 Chu Pui Yan

71. Ms Chu was first spotted being present in the Area at about 8:48 am. Video footage depicted her wearing a mask and a T‑shirt “堅持到底 Never give up”. I mention the words showing on her T‑shirt not because I wish to endorse or condemn her decision in support of or against the “Occupy Movement”, it is simply because one of my duties requires me to make a determination in accordance with legal principle as to whether Ms Chu intentionally chose to remain in the Area or rather it was a mere presence. This is one piece of circumstantial evidence.

72. Ms Chu was also seen posing for photographs with a group of young people outside HSBC. This was after the Bailiffs and solicitors for the Plaintiffs had made their first announcement at the Nathan Road / Argyle Street junction at about 8:38 am and walked past her and the group of young people.

73. In fact, two further announcements were made between 8:45 am and 9:00 am. During these three announcements, Ms Chu was either sitting on or standing near a sofa outside HSBC. She remained outside HSBC till 10:29 am, not far away from where the second announcement was made.

74. After the Bailiffs’ request for police assistance and the arrival of police officers in front of the barricades, PW7 Chief Inspector Lam Chi Yuen gave his warning at around 10:03 am. Ms Chu at this juncture was present outside HSBC within a short distance from the barricades. I have no doubt that she was able to hear the police warning. Ms Chu could have left the Area as video evidence indicated that there was still ample opportunity for her to do. Yet Ms Chu chose to remain. Shortly before 10:29 am when police officers proceeded to dismantle barricades and obstacles, Ms Chu continued to stay in the middle of Nathan Road.

75. Ms Chu was seen again at about 10:46 am standing right in front of the police check line. By then she had put on her mask and goggles and continued to face the police check line while walking backwards along Nathan Road.

76. At about 11:07 am, the police check line had reached Nathan Road / Shantung Street junction. After another warning had been given, Ms Chu was arrested shortly afterwards.

77. As mentioned above, between the application for an injunction order in October and the Bailiffs and the Plaintiffs’ agents carrying out the operation in November, all the relevant matters had been widely reported in the Local Media for a month. On the 25th, there was a clearance operation in Argyle Street, a very short distance away, that too was widely reported. The Bailiff’s announcement was clear. It essentially informed the crowd to pack up their belongings and leave as the Bailiffs and the Plaintiffs’ agents would be soon carrying out an operation to clear up obstacles.

78. Given the much publicized event, the presence of strong contingent of police officers as well as local and international media and the announcements given by various parties at the time, it was highly unlikely that any citizen of Hong Kong would misapprehend the situation. In my view, those who had decided to remain and to stand in the middle of Nathan Road within the Area knew precisely what they were doing.

79. Given the length of time that Ms Chu chose to remain at the Area, the acts and movements she performed and her knowledge of the clearance operation by the Bailiffs and police officers in the Area, I am satisfied that Ms Chu had no desire to leave the Area. The presence of individual protestors like Ms Chu also lent support to other fellow protestors too. As is common in mass protests, fellow protesters banded together to fight for their beliefs. Video footage clearly indicated that there was no way the Bailiffs and the Plaintiffs’ agents were able to carry out the clearance operation by themselves given the presence of the large crowd. Their presence made the job of clearing and removing obstacles along Nathan Road substantially more difficult. Police assistance was eventually sought by the Bailiffs. Their presence and conducts were, not only inherently likely, but factually calculated, to delay if not to frustrate the Bailiffs and the Plaintiffs agents’ efforts. I have no doubt that Ms Chu’s conducts on that day amounted to a serious interference with the administration of justice.

80. Submissions were made that by the time the police took arrest action, Ms Chu was no longer able to leave the Area. To a certain extent, that is the case. But that is her own choosing. I have no doubt Ms Chu wanted to do her part till the last minute in support of what she believed to be the correct course, true to the words shown on her T‑shirt. As explained earlier, the arrest action bore little relevance to the commission of the offence. Having considered all the evidence, I am satisfied that Ms Chu is guilty of criminal contempt.

HCMP 780/2015 Kwok Yeung Yuk

81. Mr Kwok was first seen at about 9:11 am standing outside the barricades. He was carrying with him a yellow/orange umbrella. I do not think anyone would dispute that the “Occupy Movement” was also known as the “Umbrella Movement”. At about 9:43 am he was captured on video again. Between 9:43 am and 10:15 am, he remained in the Area and moved around until his arrest. During his stay, Mr Kwok was seen most of the time staying close to the barricades in the middle of Nathan Road.

82. When the Bailiffs and the Plaintiff’s solicitors were making the fifth announcement at about 9:49 am, Mr Kwok was present behind the barricades, within the earshot of the announcement. I have no doubt that he was aware of the Bailiff’s warning. When the Plaintiffs’ agents started to remove the barricades, Mr Kwok was not far away and could have witnessed that. Even as late as this juncture in time, Mr Kwok still had ample opportunity to leave. Yet he remained.

83. When PW7 made the first police warning, Mr Kwok was standing immediately behind the barricades. Again I am sure he was fully aware of the warning. He chose to remain at the Area. The matters and observations mentioned from paragraphs 77 to 79 above are also applicable in Mr Kwok’s case. I have no doubt that Mr Kwok had made a deliberate decision to remain in the Area in support of the “Umbrella Movement”. His presence clearly flouted the Amended Injunction Order. Not only that, because of his presence and the presence of other protestors, their acts of defiance inevitably made the clearance much more difficult and were conducts not only inherently likely to but did factually cause prejudice to and interference with the due administration of justice.

84. Submissions were made that by 10:13 am, despite the fact that Mr Kwok wanted to leave the Area, he was not allowed to because he was by then surrounded by police officers and that all the pockets within the crowd practically had been blocked off and that he remained peaceful throughout and did not put up any resistance. Mr Kwok was then ordered to squat on the ground together with other protestors before his formal arrest. I accept that to be the case but again the circumstances of his arrest bore little relevance to the commission of the offence. Having considered all the evidence, I am satisfied that Mr Kwok is guilty of criminal contempt.

HCMP 789/2015 Hung Cheuk Lun

85. Mr Hung was first seen at about 9:39 am. Video footage captured him carrying a backpack with a white helmet attached to it. Mr Hung was standing right behind the barricades, within earshot of the announcement when the Bailiffs and the Plaintiffs’ solicitors began to make the fifth announcement.

86. When the Plaintiffs’ agents began to dismantle the barricades, Mr Hung was in a position to witness all that. He did not leave the Area. At about 10:03 am, when PW7 made the first police warning, Mr Hung stood behind the barricades. Similarly, there could not be any question that he had not been made aware of the police warning. Although Mr Hung was never seen putting on the helmet, his intention was clear. He was ready to face the police.

87. Not only did he choose to remain behind, he was seen jeering and booing by one police officer (“PW41”). There was practically little cross examination of this issue. I am satisfied that PW41 was telling the truth despite the fact that it was not captured on any video footage. In fact, I would reach the same conclusion even without the evidence of PW41. The matters and observations mentioned from paragraphs 77 to 79 above are also applicable in Mr Hung’s case. His presence together with other protesters in the crowd not only constituted a flagrant breach of the Amended Injunction Order, but also created enormous burden for those responsible for clearing the obstacles. His conducts were conducts not only inherently likely to but factually did cause prejudice to or interference with the due administration of justice.

88. Similar submissions had been made that Mr Hung was not able to leave the Area by the time the police took action. For reasons stated earlier, I do not believe it bore any relevance to the commission of the offence. Had Mr Hung wanted to leave, he had ample opportunity to do so. In fact Mr Hung stayed almost all the time close to the barricades. Having considered all the evidence, I am satisfied that Mr Hung is guilty of criminal contempt.

89. I now proceed to deal with Mr Pun’s six clients.

HCMP 788/2015 Kwan Siu Wang

90. Mr Kwan was first seen at around 9:43 am when he moved towards the barricades at Nathan Road / Argyle Street and joined up Mr Wong Ho Ming, Mr Lester Shum and Mr Wong Chi Fung (“the Group”).

91. Mr Kwan was seen staying in the Area close to the barricades for a significant period of time before his arrest by police officers. At about 10:12 am, he was seen having conversations with various members of the Group.

92. When the Bailiffs and the Plaintiffs’ solicitors began to make the fifth announcement, Mr Kwan was present right behind the barricades, within earshot of the announcement. I am sure not only was Mr Kwan aware of the warning, the presence of the large number of Bailiffs as well as the solicitors’ agents and police officers also clearly indicated to him that they were going to clear up the barricades. Again the matters and observations mentioned from paragraphs 77 to 79 above are applicable in Mr Kwan’s case.

93. When PW7 made the first police warning, Mr Kwan was again standing behind the barricades. I am sure he was able to hear the warning. After the first police warning, had Mr Kwan decided to leave, he still had ample opportunity to do so. In fact, Mr Kwan continued to stay in the Area, showing no sign of any intention to leave. His determination to stay with other protestors in the front inevitably created extra burden for the Bailiffs and the Plaintiffs’ agents in removing the barricades. I have no doubt that his conducts on that day not only were conducts inherently likely to prejudice or interfere with the administration of justice, but did actually produce that effect. Having considered all the evidence, I am satisfied that Mr Kwan is guilty of criminal contempt.

HCMP 791/2015 Fung Kai Hei

94. Mr Fung was first seen at about 9:54 am. He emerged from a tent behind the barricades after the fifth announcement made by the Bailiffs. Mr Fung remained close to the barricades. Shortly afterwards, the Bailiffs and the Plaintiffs’ agents started to clear the barricades.

95. The emotions on both sides, the protestors and the Plaintiffs’ agents, were high. Both sides not only pointed at each other, but also exchanged unacceptable language. In fact, one person stood out on that day among the protestors, a male wearing only a shield without any upper garment on his upper body (referred to as the fake Captain America by the applicant). This male was seen carrying with him a small loudhailer and shouting across the barricades with rather unpleasant language.

96. At about 10:12 am, video footage depicted Mr Fung sending signals to the crowd further down Nathan Road regarding the police’s movement. Mr Fung was also clearly seen having a brief conversation with this fake Captain America.

97. When PW7 made the first police warning, Mr Fung was standing on Nathan Road (near Citibank) within earshot of the announcement. Mr Fung could have left the Area but decided not to do so. The matters and observations mentioned from paragraphs 77 to 79 above are applicable in Mr Fung’s case. His presence together with the presence of other protestors indicated to me that Mr Fung had no desire to leave the Area. No doubt their presence had made the Bailiffs and the Plaintiffs’ agents’ job in removing the barricades substantially more difficult. His conducts were not only conducts inherently likely to but did factually cause prejudice to or interference with the due administration of justice. Having considered all evidence, I am satisfied that he is guilty of criminal contempt.

HCMP 783/2015 Chiu Chi Sum

HCMP 784/2015 Chan Po Ying

98. Both Mr Chiu and Ms Chan can be dealt with together for the case against them overlapped considerably. Most of the time they were seen acting together.

99. Ms Chan was first seen at about 9:50 am standing outside HSBC. At about 9:53 am she walked towards the direction of Tsim Sha Tsui, away from the barricades. Had she wanted to leave the Area, she would have ample opportunity to do so. Instead she returned to the Area. She was seen again at about 11:07 am walking in the direction of Argyle Street.

100. PW7 gave another warning at about 11:07 am. At about 11:11 am, Ms Chan was seen holding a loudhailer passed to her by a male wearing a T‑shirt “公民抗命” while Mr Chiu was standing next to her. Thereafter, Ms Chan held the loudhailer whereas Mr Chiu acted as her guide, leading her in moving backwards against the advance of the police check line. Video footage showed that when Ms Chan was holding the loudhailer along Nathan Road, the male was making broadcast to the crowd.

101. Both Mr Chiu and Ms Chan were fully aware that they were required to leave the Area as the police check line advanced. They chose not to leave and had no desire to leave. The matters and observations mentioned from paragraphs 77 to 79 above are also applicable in their cases. They did their part in support of the movement. Their presence together with the presence of other protestors inevitably put extra burden on the people responsible for clearing the obstacles. Their conducts were conducts not only inherently likely to but factually caused prejudice to and interference with the due administration of justice.

102. Submissions were made that in fact they were not the targets of the police’s arrest and that they were retreating towards the direction of Tsim Sha Tsui. Whether or not they were the targets of the police was irrelevant to the case. They were walking backwards towards the direction of Tsim Sha Tsui, but no doubt with the intention of assisting others to slow down the advance of the police check line.

103. Having heard all the evidence, I am satisfied that they are guilty of criminal contempt.

HCMP 796/2015 Mak Ying Sheung

104. Ms Mak was the only respondent who chose to testify in these proceedings. In so far as other respondents who decided to exercise their right of silence are concerned, no adverse inference had been drawn against them. In considering Ms Mak’s evidence, I also bear in mind that she enjoys a clear record in Hong Kong. That actually applies to all respondents in this case.

105. According to Ms Mak, she joined the Independent Media Hong Kong as an intern journalist at the beginning of November 2014. She was present on the 25 November 2014 during the execution of Amended Injunction Order at Argyle Street. Her task on the 25th was to interview protestors after the clearance.

106. Ms Mak was also aware that there would be another operation on the 26th and that the Bailiffs would be present to assist. She arrived at Mong Kok MTR station at 9:48 am. Her intention was again to interview the protestors.

107. Shortly after her arrival in the Area, Ms Mak overheard the police warning but was unable to hear the content in its entirety due to the noisy surroundings at the time. However, she could hear the warning requesting the crowd not to obstruct the Bailiffs in removing obstacles. Soon, blue team police officers moved in and she wanted to leave. However, as she had not been issued with a journalist identity card, she was stopped by police officers from leaving.

108. As such, Ms Mak returned to the front of the barricades and stood next to both Mr Wong Chi Fung and Mr Lester Shum. According to Ms Mak, she did not know Mr Wong Ho Ming, Mr Wong Chi Fung and Mr Lester Shum. Soon she was surrounded by police officers. All of a sudden, sensing that Mr Wong Chi Fung was about to lose his balance, she reached out her hands to help. According to Ms Mak, she had no idea that the police were in fact making arrest at the time. Soon she too was arrested. When being interviewed by the police under caution, she told the police her journalistic activity that day.

109. Ms Mak also called two witnesses, Mr Macro Mak, editor of the Independent Media Hong Kong, and Mr Lam Kin Hang, a freelance photographer, to testify. Similar to other witnesses, there was little challenge to their evidence.

110. The real issue in Ms Mak’s case is if she was wrongly arrested by the police at the time when she was doing no more than journalistic work. Having heard her evidence and viewed all relevant video footage, particularly, video footage that captured her conducts in support of the crowd, I do not think she was a credible witness.

111. I accept that Ms Mak had joined the Independent Media Hong Kong as an intern journalist in early November and that based on the Whatsapp messages appearing on her mobile phone, she had been asked by Mr Marco Mak to interview protestors on the 25th.

112. However, there was an absence of Whatsapp messages between Mr Marco Mak and Ms Mak regarding her works / tasks on the 26th, given Ms Mak was new to the journalistic field. There was no written instruction from Mr Marco Mak telling Ms Mak to return to the Area on the next day. On the contrary, the parties agreed to meet on Tuesday in the following week. On this point, I do not accept Mr Marco Mak’s evidence regarding the continuation of Ms Mak’s work on the 26th. Further we have not been presented with any photographs taken or indeed any journalistic works performed on the 26th. Ms Mak was seen most of the time looking at her mobile phone, instead of interviewing protestors. Before her arrest, she was seen standing next to the Group, yet no attempt had been made to interview any of them.

113. On the contrary, we have seen photographs depicting Ms Mak shouting and raising her arms along with other protestors. When she was cross‑examined on these photographs, her answers were unconvincing and evasive. When the police advised the media to leave the “operation area”, Ms Mak also told us that she did not know the extent of the “operation area”. I find that unconvincing too. At the time in front of Ms Mak was the large police presence, surely she should have no difficulty in realising that she was in the eye of a storm. I do not believe she was telling the truth.

114. I, of course, understand that Ms Mak was under no obligation to adduce any evidence. However, the absence of messages, photographs and journalistic work pointed to the inherent unlikelihood of her evidence. Having considered all the evidence, I come to the conclusion that whatever she did on 25th for the Independent Media Hong Kong, she was not doing that on the 26th. Ms Mak joined in the protest on the 26th. She took part in the protest with other protesters, despite the existence of an injunction prohibiting their continued occupation. The matters and observations mentioned from paragraphs 77 to 79 above are also applicable in Ms Mak’s case.

115. During her presence in the Area, there were pockets of time when she could leave without any difficulty. But for obvious reasons, she chose to remain. Her presence and conducts together with the presence of other protestors created extra burden on the people who were responsible for the clearance of the obstacles. Her conducts were conducts not only inherently likely to but did in fact cause prejudice to or interference with the due administration of justice. Having considered all the evidence, I am satisfied that Ms Mak is guilty of criminal contempt.

HCMP 798/2015 Wong Ho Ming

116. Mr Wong was first seen in the footage at around 8:44 am.

117. Video footage showed that when the Bailiffs and the Plaintiffs’ solicitors were moving along Nathan Road and making announcements at different locations, Mr Wong had repeatedly asked questions on (i) whether people present in the Area amounted to obstacles; (ii) whether the Plaintiffs’ agents had been properly authorised; (iii) how to ensure the content of Amended Injunction Order being communicated to people present at the Area; and (iv) demanding the Bailiffs to use a bigger loudhailer. His challenges to the Bailiffs and the Plaintiffs’ solicitors were broadcast to the crowd. Nevertheless, the ways and manners adopted by Mr Wong were, on any objective viewing, desired to a certain extent, ridicule the Plaintiffs’ solicitors as well as to incite the crowd to continue their defiance.

118. The terms of the Amended Injunction Order were clear on their face. There were extensive legal arguments before Au J and the Court of Appeal. The proper way to clarify any purported uncertainty on the meaning and scope of the injunction should be to apply to the court to seek a variation or clarification. The same should also be applicable to the issue of authority of the Plaintiffs’ agents. Given the impracticality, it was therefore not surprising to see that nowhere in the terms of the Amended Injunction Order was there a requirement to prove authority to the protestors. There were hundreds if not thousands of them.

119. After the fifth announcement made by the Bailiffs and the Plaintiffs’ solicitors, the Plaintiffs’ agents began to clear the barricades. Mr Wong continued to challenge the Plaintiffs’ agents’ identity and authority and demanded the sight of written authorisation. His presence and challenges undoubtedly created enormous burden on the Bailiffs and Plaintiffs’ agents. The emotions on both sides were high. Accusations and counter‑accusations had been exchanged and given the chaos at the time, there was no way the Bailiffs and the Plaintiffs’ agents on their own could have carried out the clearance operation. The only resort was for them to seek the police’s assistance as contemplated.

120. At 10:02 am, the Bailiffs sought the assistance of the police. At 10:03 am PW7 gave the first police warning. Mr Wong decided to remain in the Area. When the police moved in effecting his arrest, Mr Wong stood in front of the barricades. Video footage showed that Mr Wong seemingly invited the police to arrest him and even signalled to the police that he had no weapon on his body. The matters and observations mentioned from paragraphs 77 to 79 above are likewise applicable in Mr Wong’s case. His presence and challenges to the Bailiffs and the Plaintiffs’ agents were conducts not only inherently likely to but did factually cause prejudice to or interference with the clearance operation on that day hence the due administration of justice. Having considered all the evidence, I am satisfied that Mr Wong is guilty of criminal contempt.

121. In conclusion, I am satisfied beyond reasonable doubt that all the respondents are guilty of the offence of criminal contempt.

	(Andrew Chan)
	Judge of the Court of First Instance
	High Court

Mr Victor Dawes, SC leading Mr Jin Pao and Mr Derek Chan, instructed by Department of Justice, for the applicant in HCMP 778, 780, 783, 784, 788, 789, 791, 796 and 798/2015

Mr Lawrence Lok, SC leading Miss Yu Cheuk Wing, Christine, instructed by M/s Ho, Tse, Wai & Partners assigned by DLA, for respondents in HCMP 778, 780 and 789/2015

Mr Hectar Pun, SC leading Mr Deng, Jundi Earl, instructed by M/s JCC Cheung & Co assigned by DLA, for respondents in HCMP 783, 784, 788, 791, 796 and 798/2015

[1]Secretary for Justice v Ng Wai Bing (2012) 1 HKLRD 245

[2]Kao, Lee & Yip v Donald Koo Hoi Yan (2009) 12 HKCFAR 830

HCMP 774, 776-781, 783, 784, 787-789, 791-798/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS

NOs 774, 776-781, 783, 784, 787-789, 791-798 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 2104/2014

_______________

BETWEEN
	SECRETARY FOR JUSTICE	Applicant
	and
	CHAU WAN YING (周蘊瑩)	Respondent
		in HCMP 774/2015
	CHU WAI LUN (朱緯圇)	Respondent
		in HCMP 776/2015
	CHEUNG KAI YIN (張啟昕)	Respondent
		in HCMP 777/2015
	CHU PUI YAN (朱佩欣)	Respondent
		in HCMP 778/2015
	MA PO KWAN (馬寶鈞)	Respondent
		in HCMP 779/2015
	KWOK YEUNG YUK (郭陽煜)	Respondent
		in HCMP 780/2015
	SHUM LESTER (岑敖煇)	Respondent
		in HCMP 781/2015
	CHIU CHI SUM (趙志深)	Respondent
		in HCMP 783/2015
	CHAN PO YING (陳寶瑩)	Respondent
		in HCMP 784/2015
	CHEUNG KAI HONG (張啟康)	Respondent
		in HCMP 787/2015
	KWAN SIU WANG (關兆宏)	Respondent
		in HCMP 788/2015
	HUNG CHEUK LUN (熊卓倫)	Respondent
		in HCMP 789/2015
	FUNG KAI HEI (馮啟禧)	Respondent
		in HCMP 791/2015
	CHOI TAT SHING (蔡達誠)	Respondent
		in HCMP 792/2015
	SZETO TSE LONG JASON	Respondent
	(司徒子朗)	in HCMP 793/2015
	WONG LAI WAN (黃麗蘊)	Respondent in HCMP 794/2015

	WONG CHI FUNG (黃之鋒)	Respondent
		in HCMP 795/2015
	MAK YING SHEUNG (麥盈湘)	Respondent
		in HCMP 796/2015
	YEUNG HO WAH (楊浩華)	Respondent
		in HCMP 797/2015
	WONG HO MING (黃浩銘)	Respondent
		in HCMP 798/2015

_______________

(Heard together)

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

Dates of Hearing: 25 and 26 Feb 2016

Date of Decision: 8 March 2016

___________________

D E C I S I O N

___________________

INTRODUCTION

1. The principal question which I have to decide is what is the consequence of a lapse of the leave granted by the court to an applicant to apply for an order of committal as a result of his failure to enter the originating summons for hearing within 14 days after such leave was granted under Order 52, rule 3(2) of the Rules of the High Court (Cap 4A) – in particular does the lapse of leave mean that the court has no jurisdiction to entertain a fresh application by the applicant for leave to apply for an order of committal against the same respondent within the same set of proceedings?

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

BACKGROUND FACTS

3. These contempt proceedings, commenced by the Secretary for Justice against the 20 respondents herein, arose out of events occurring at portions of Nathan Road between Argyle Street and Dundas Street on 26 November 2014 in connection with the execution of an injunction order granted by Mr Justice Au on 10 November 2014 and amended on 21 November 2014 in HCA 2104/2014 (“the Amended Injunction Order”).

4. The underlying facts giving rise to these proceedings are well known to the parties and I do not propose to set them out in this decision.

5. On 2 April 2015, the Secretary for Justice applied for leave to apply for an order of committal against each of the 20 respondents (collectively “the 1^st Leave Applications”). Each application, made ex parte pursuant to Order 52, rule 2(2), was supported by (i) a written statement dated 2 April 2015 (“the Statement”), and (ii) an affirmation of Tsui Wing Yan Yvonne affirmed on 2 April 2015 and the exhibits thereto (“Tsui’s First Affirmation”).

6. On 16 April 2015, this court granted leave to the Secretary for Justice to apply for an order of committal against each of the 20 respondents (collectively “the April Orders”).

7. On 29 April 2015, the Secretary for Justice, pursuant to the leave granted by the court as aforesaid, issued an originating summons under Order 52, rule 3(1) against each of the 20 respondents (collectively “the 1^st Originating Summonses”) seeking, inter alia, an order that the respondent be committed to prison and/or fined for criminal contempt of court by “interfering with and/or impeding the due execution on 26 November 2014 of [the Amended Injunction Order] by refusing to leave the obstructed area covered by the injunction order despite repeated warnings”.

8. The 1^st Originating Summonses were not, however, entered for hearing within 14 days after leave was granted as required by Order 52, rule 3(2).

9. On 22 July 2015, the Secretary for Justice applied (collectively “the 2^nd Leave Applications”), again on an ex parte basis, against each respondent for leave to:-

(1) amend the Statement as per the copy annexed to the application (“the Amended Statement”) pursuant to Order 52, rule 2(6); and
(2) make an application for committal for criminal contempt of court against the respondent “on the facts and grounds appearing in the [Amended Statement] pursuant to Order 52 rule 2(2) of the Rules of the High Court (Cap 4A) accompanying this application which is supported by [Tsui’s First Affirmation] and the Second Affirmation of Tsui Wing Yan Yvonne affirmed on 22 July 2015 and filed herein and the exhibits thereto”.

10. In the Affirmation of Mr Suen Sze Yick filed on 30 November 2015, it is said that what prompted the 2^nd Leave Applications was the discovery of a factual error in the evidence of Madam Chim Fung Ling, Assistant Chief Bailiff (“Madam Chim”) relating to the sequence of the bailiff’s announcement and certain acts of the crowd that took place in the course of the execution of the Amended Injunction Order on 26 November 2014, whose evidence was relied upon by the Secretary for Justice in support of the 1^st Leave Applications. According to Mr Suen, Madam Chim first requested for clarification of the error in her witness statement on 13 May 2015, and the Department of Justice was informed of such request on 26 May 2015. Following internal deliberation as to the proper way forward and receipt of senior counsel’s advice, the Department of Justice took the view that a further ex parte application should be made for (i) leave to amend the Statement, and (ii) leave to apply for an order of committal against each respondent on the basis of the corrected Statement. The draft documents for the purpose of the 2^nd Leave Applications were prepared and later cleared by senior counsel on 21 July 2015 and, as earlier mentioned, the 2^nd Leave Applications were made on 22 July 2015.

11. On 30 July 2015, this court granted the relief sought by the Secretary for Justice under the 2^nd Leave Applications (“the July Orders”).

12. On 3 and 5 August 2015, the Secretary for Justice issued fresh originating summonses against the respondents (collectively “the 2^nd Originating Summonses”) pursuant to the July Orders.

13. On 7 August 2015, the Secretary for Justice issued, in respect of each respondent, a notice of appointment to hear the originating summons pursuant to Order 52, rule 3(2).

14. All respondents now seek to challenge the July Orders, although the precise relief sought by them is not identical.

15. By summonses taken out by the respondents in HCMP 783, 784, 788, 791, 796 and 798 of 2015 (represented by Mr Hector Pun SC and Mr Earl Deng) and by the respondent in HCMP 774 of 2015 (represented by Mr Lawrence Lok SC and Ms Christine Yu) dated 23 November 2015, they seek an order that the leave granted by the court to the Secretary for Justice to apply for an order of committal on 30 July 2015 be set aside.

16. By a summons taken out by the respondents in HCMP 776, 778, 780, 787, 792 and 795 of 2015 (represented by Mr Lawrence Lok SC and Ms Christine Yu) dated 23 November 2015, they seek:-

(1) a declaration that –
(a) the leave to apply for committal against them granted on 16 April 2015 lapsed on 30 April 2015,
(b) the court had no jurisdiction to grant leave to amend the Statement on 30 July 2015, and
(c) the court had no jurisdiction to grant leave to apply for committal against them on 30 July 2015 on the facts and grounds appearing in the Amended Statement; and
(2) an order to set aside the July Orders.

17. By summonses taken out by the respondents in HCMP 777, 779, 781, 789, 793, 794 and 797 of 2015 (represented by Mr Gerard McCoy SC and Mr Albert N B Wong) dated 23 November 2015 and 22 February 2016 respectively, they seek:-

(1) a declaration that the leave to make applications for committal for contempt of court against them has lapsed, and/or
(2) an order that the originating summons in each of HCMP 777, 779, 781, 789, 793, 794 and 797 of 2015 filed on 5 August 2015 be dismissed for lack of jurisdiction; or
(3) an order that the July Orders granting leave to the Secretary for Justice upon the 2^nd Leave Applications filed on 22 July 2015 be set aside for material non-disclosure and/or abuse of process.

18. In response to the respondents’ applications, the Secretary for Justice issued a summons on 30 November 2015 seeking:-

(1) a re-grant of leave to commence contempt proceedings against the respondents should the leave granted under the July Orders be set aside on the ground of material non-disclosure and/or abuse of process; and
(2) further or alternatively, an extension of time to issue a notice of appointment to hearing originating summons pursuant to the leave granted under the April Orders in respect of each respondent should the court set aside the July Orders and dismiss the 2^nd Originating Summonses on the ground that the leave granted under the April Orders has lapsed by reason of the failure to comply with Order 52, rule 3(2).

19. In passing, I should record that although the respondent in HCMP 793/2015 (Szeto Tse Long Jason) was not made a party to the Secretary for Justice’s summons (for some procedural reasons which it is not necessary to go into in this decision), Mr Albert Wong who appeared for that respondent confirmed that he was content to treat the Secretary for Justice’s summons as having been made against that respondent as well and no objection would be taken on the issue of service of that summons.

THE RESPONDENTS’ APPLICATIONS

20. Three principal grounds are relied upon by the respondents in support of their applications, namely, that:-

(1) The lapse of the leave granted under the April Orders resulted in the court having no jurisdiction to make the July Orders. This argument has been put on behalf of the respondents in various ways. Mr McCoy in his written submissions puts it as a “lapse of jurisdiction”, in contradistinction to a “procedural defect”, which it is said cannot be cured by powers to amend which are premised on the principle that form should not overrule substance. Mr Lok argues that once leave has lapsed the entire committal proceedings must have collapsed and cannot proceed further, and that the proceedings could not be revived by the court granting fresh leave, or an extension of time under Order 3, rule 5. Mr Pun argues that the lapse of the leave granted under the April Orders means that there is “nothing further” for the court “to continue with” in respect of the current proceedings and therefore the 2^nd Leave Applications are invalid and/or a nullity.
(2) The 2^nd Leave Applications were not “fresh” applications for leave to apply for orders of committal, and in any event were not properly constituted by reason of the fact that the Secretary for Justice did not pay the prescribed court fee (HK$1,045) for commencement of each “originating ex parte application”.
(3) The leave granted under the July Orders should be set aside on the ground of material non disclosure or failure on the part of the Secretary of Justice to observe the duty of candour. The matters which it is said the Secretary of Justice ought, but failed, to disclose when making the 2^nd Leave Applications are:-
(a) a full account of the status of the proceedings subsequent to the 1^st Leave Applications, in particular that the leave granted under the April Orders had lapsed by reason of the failure to enter the 1^st Originating Summonses for hearing within 14 days after leave was granted and the consequences flowing from such lapse;
(b) the Secretary for Justice had paid the prescribed court fees upon commencing the 1^st Leave Applications and again when issuing the 1^st Originating Summonses, but did not do so upon commencing the 2^nd Leave Applications; and
(c) (according to Mr Pun) the Secretary for Justice’s position that he did not need to pay the prescribed fee twice, once when making a leave application and again when issuing an originating summons.

21. I shall consider each of these grounds of objections below.

COURT’S JURISDICTION AFTER LAPSE OF LEAVE

(i) Proper approach for determining the consequence of non-compliance

22. The conventional approach when there has been non-compliance with a time or other procedural requirement laid down by a statute for the commencement or prosecution of proceedings is to seek to ascertain whether the requirement which was not complied with should be categorised as “directory” or “mandatory”. Generally, the statute would not state whether the requirement is directory or mandatory. There would be no difficulty if the statute expressly stipulates the consequence of the non compliance. On the other hand, if the statute does not do so, the distinction between directory and mandatory requirements would not assist in answering the question of what should be the consequence of the non-compliance.

23. The modern approach for determining the consequence of non-compliance with a time or other procedural requirement laid down by a statute is to treat the matter as one of statutory construction, and the court’s task is to ascertain what the legislature intends to be the consequence of the non-compliance, having regard to the language of the statute, the legislative purpose of the requirement in question and the relevant factual context in which the non-compliance occurred.

24. In R v Secretary of State for the Home Department, ex p Jeyeanthan [2000] 1 WLR 354, the non-compliance related to the use of a prescribed form for making an application for leave to appeal against a special adjudicator’s decision to the Immigration Appeal Tribunal. The application (contained in a letter) included all the relevant information required by the prescribed form except a declaration of truth. The question was whether the failure to use the prescribed form rendered the application for leave to appeal a nullity. It was held by the English Court of Appeal that although the omission of the declaration of truth meant that the application failed to comply substantially with the relevant statutory requirement, the omission was an irregularity which could be cured and had been waived, and the application should not be treated as a nullity. Lord Woolf MR (with whom Judge and May LJJ agreed) stated the court’s approach to procedural irregularities as follows:

“The issue is of general importance and has implications for the failure to observe procedural requirements outside the field of immigration. The conventional approach when there has been non-compliance with a procedural requirement laid down by a statute or regulation is to consider whether the requirement which was not complied with should be categorised as directory or mandatory. If it is categorised as directory it is usually assumed it can be safely ignored. If it is categorised as mandatory then it is usually assumed the defect cannot be remedied and has the effect of rendering subsequent events dependent on the requirement a nullity or void or as being made without jurisdiction and of no effect. The position is more complex than this and this approach distracts attention from the important question of what the legislator should be judged to have intended should be the consequence of the non-compliance. This has to be assessed on a consideration of the language of the legislation against the factual circumstances of the non-compliance. In the majority of cases it provides limited, if any, assistance to inquire whether the requirement is mandatory or directory. The requirement is never intended to be optional if a word such as ‘shall’ or ‘must’ is used…
By contrast, a requirement may be clearly directory because it lays down a time limit but a tribunal is given an express power to extend the time for compliance. If the tribunal grants or refuses an extension of time the position is clear. If the time limit is extended the requirement is of no significance. If an extension is refused the requirement becomes critical. It may, for example, deprive a member of the public of a right to appeal which if exercised in time would have been bound to succeed. In the latter situation a directory requirement has consequences which are as significant as any mandatory requirement…
It must be remembered that procedural requirements are designed to further the interests of justice and any consequence which would achieve a result contrary to those interests should be treated with considerable reservation…
I suggest that the right approach is to regard the question of whether a requirement is directory or mandatory as only at most a first step. In the majority of cases there are other questions which have to be asked which are more likely to be of greater assistance than the application of the mandatory/directory test. The questions which are likely to arise are as follows.
1. Is the statutory requirement fulfilled if there has been substantial compliance with the requirement and, if so, has there been substantial compliance in the case in issue even though there has not been strict compliance? (The substantial compliance question.)
2. Is the non-compliance capable of being waived, and if so, has it, or can it and should it be waived in this particular case? (The discretionary question.) I treat the grant of an extension of time for compliance as a waiver.
3. If it is not capable of being waived or is not waived then what is the consequence of the non-compliance? (The consequences question.)
Which questions arise will depend upon the facts of the case and the nature of the particular requirement. The advantage of focusing on these questions is that they should avoid the unjust and unintended consequences which can flow from an approach solely dependant on dividing requirements into mandatory ones, which oust jurisdiction, or directory, which do not. If the result of non-compliance goes to jurisdiction it will be said jurisdiction cannot be conferred where it does not otherwise exist by consent or waiver.”

25. In Seal v Chief Constable of South Wales Police [2007] 1 WLR 1910, Lord Bingham of Cornhill (with whom Lord Carswell and Lord Brown of Eaton-under-Heywood agreed) affirmed that the focus of the inquiry should be the legislative intention of what would be the consequence of non-compliance. At paragraph 7, the following was stated:-

“The important question is whether, in requiring a particular condition to be satisfied before proceedings are brought, Parliament intended to confer a substantial protection on the putative defendant, such as to invalidate proceedings brought without meeting the condition, or to impose a procedural requirement giving rights to the defendant if a claimant should fail to comply with the requirement; but not nullifying the proceedings: see R v Soneji [2006] 1 AC 340, para 23. To answer this question a broader inquiry is called for.”

26. This approach can also be seen in Lord Bingham’s judgment in R v Clarke [2008] 1 WLR 338 at 347, quoting with approval the following passage in the judgment of Fulford J in R v Ashton [2007] 1 WLR 181 at paragraph 4:-

“In our judgment it is now wholly clear that whenever a court is confronted by failure to take a required step, properly or at all, before a power is exercised (‘a procedural failure’), the court should first ask whether the intention of the legislature was that any act done following that procedural failure should be invalid. If the answer to that question is no, then the court should go on to consider the interest of justice generally, and most particularly whether there is a real possibility that either the prosecution or the defence may suffer prejudice on account of the procedural failure. If there is such a risk, the court must decide whether it is just to allow the proceedings to continue.”

27. In Adorian v Metropolitan Police Commissioner [2009] 4 All ER 227, the relevant procedural requirement, under section 329 of the Criminal Justice Act 2003, was the court’s permission being obtained before a claimant could bring civil proceedings for damages in circumstances where the act complained of amounted to trespass to the claimant’s person but the claimant had been convicted of an imprisonable offence committed on the same occasion as that on which the act was alleged to have been done. The English Court of Appeal held that the above requirement was procedural and directory, and that if proceedings were brought without permission the defect could, if appropriate, be cured on application to the court. At paragraph 34, Sedley LJ (giving the judgment on behalf of the Court of Appeal) stated as follows:

“A need to invalidate such proceedings unless leave is first obtained is undoubtedly exceptional and may be unique. Certainly, as their Lordships were careful to stress in Seal's case [2007] 1 WLR 1910, the imposition of a jurisdictional bar on access to the courts is a drastic measure, in contrast to a requirement that proceedings, once instituted, can be struck out if they do not pass muster, whether on specified statutory criteria or because they have no realistic chance of success.”

28. In Bank of Ireland v Colliers International UK plc [2013] Ch 422, which concerned a failure to obtain the consent of the administrator or the permission of the court prior to the commencement of proceedings against a company in administration, David Richards J summarised the effect of the decisions of the House of Lords in Seal and of the Court of Appeal in Adorian as requiring the court to “look beyond the language of the section to the entire context of the provision, its purpose, and the consequences of a decision as to its effect, with a general pre-disposition that the lack of prior permission should not render the proceedings a nullity” (see paragraph 30 of his judgment).

29. In Fabrique Ebel Societe Anonyme v MBO Far East (HK) Ltd [1985] 1 HKC 166, civil contempt proceedings were commenced without leave of the court as required by Order 52, rule 2. Hunter J (as he then was) held that the failure was an irregularity which the court could, and should, cure, on the ground that Order 2, rule 1 had done away with the old distinction between nullities and irregularities such that every mistake and omission was to be regarded as an irregularity which the court could and should rectify so long as it could do so without injustice. At 168-170, Hunter J stated as follows:-

“So that the position is this. The applicants have launched their application without first obtaining leave under O.52. In those circumstances they invite the court, to regulate the proceedings by a necessary assuaging order under O.2 r.1; an order which would retrospectively give them leave and direct that the proceedings are to continue as if leave had initially been granted.
Three points have been taken on this. The first is whether or not this is the sort of mistake in respect of which discretion can properly be exercised under O.2…
O.2 r.1 follows verbatim the change in the rules introduced in England in 1965. That came before the Court of Appeal in Harkness v. Bell's Asbestos and Engineering Limited (1967) 2 Q.B. 729. In the course of giving his judgment in that case the Master of the Rolls, Lord Denning says this: -
‘This new rule does away with the old distinction between nullities and irregularities ..... Every omission or mistake in practice or procedure is henceforth to be regarded as an irregularity which the court can and should rectify so long as it can do so without injustice.’
I should explain that before this alteration was brought about, a body of case law had developed which drew a distinction (a very difficult dividing line it was) between mistakes which rendered the procedural step a nullity, and mistakes which simply constituted irregularities. What Lord Denning was there saying firmly was that that distinction has now gone. That in substance is why the rule says that a number of failures which are set out ‘shall be treated as irregularities’. That is also I think why the M. R. says that the court not only can, but should, rectify such errors, so long as it can do so without injustice…
I accept that this is a procedure which ought to have been followed. It is an important step in so far it is a protection to the liberty of the individual. I believe that when one finds that a failure like this has taken place, the first question which the court has to ask itself is: What would I have done if an application for leave had been made. And if the answer to that is: I would have granted leave without hesitation: then I think that that is the way to approach this particular application. I have no doubt here that had application been made to me for leave, it would have been granted. In those circumstances I ask myself what injustice is there now in validating proceedings which have continued since last October, on the assumption on everybody's part that they were valid and effective. I cannot see any. So my answer to the first question is that this is a proper case for the exercise of the Court's discretion under r. 2.”

30. In passing, I observe that the judgment of Hunter J in Fabrique Ebel Societe Anonyme was referred to with approval by the Court of Appeal in Effiscient Ltd v Lehman [2012] 3 HKLRD 671, which held, in the context of proceedings for civil contempt, that leave granted to apply for an order of committal which had lapsed under Order 52, rule 3(2) could be revived by the power of the court under Order 3, rule 5(1) and (2) to extend time, even after the time for compliance had expired.

(ii) Application to the present case

31. In the present case, there is no dispute that the Secretary for Justice’s failure to enter the 1^st Originating Summonses for hearing within 14 days after leave was granted under the April Orders resulted in the lapse of the leave as granted. That is what Order 52, rule 3(2) states in plain terms. It does not necessarily follow, however, that the lapse of the leave granted carries the further consequence that the court is thereby deprived of any further jurisdiction to grant fresh leave to the Secretary for Justice to apply for an order of committal against the respondents in the same proceedings.

32. In my view, the following considerations strongly militate against any legislative intention that the lapse of leave should carry such consequence.

33. First and foremost, it seems to me to be clear that the court has jurisdiction to entertain a fresh leave application by the Secretary for Justice in new proceedings to be commenced after the original leave has lapsed. Although Mr Pun expressly reserved his position on this matter, he did not advance any substantive argument to support the contention that the court has no jurisdiction in such circumstances. For my part, I am unable to see why a mere failure on the part of the Secretary for Justice to comply with the time requirement under Order 52, rule 3(2) should lead to the consequence that he should forever be barred from seeking an order of committal against the respondents in new proceedings to be commenced. There are many cases where the courts have allowed or permitted an applicant to commence fresh proceedings for an order of committal after the first proceedings have been set aside or dismissed in circumstances where the respondent has not been “in peril of punishment” in the first proceedings: see Jelson (Estates) Ltd v Harvey [1983] 1 WLR 1401; El Capistrano SA v A T O Marketing Ltd [1989] 1 WLR 471; Incorporated Owners of United Building v Ng Yuk Ming [1994] 3 HKC 637; and Aqua-Lesiure Industries Inc v Aqua Splash Ltd, HCA 18928/1998 (18 April 2001). Although those cases all relate to civil contempt, I do not consider there is any difference between civil contempt and criminal contempt for this purpose. On the other hand, if the court can entertain an application for fresh leave in new proceedings, I see no good reason why the application cannot be made in the existing proceedings. The difference between the two seems to me to be more a matter of form than substance. In my view, the overall interest of justice would demand that the court should continue to have jurisdiction to entertain fresh leave applications by the Secretary for Justice in the existing proceedings so that there could be a proper adjudication on the merits of the cases without unnecessary costs or delay. The existence of jurisdiction would not, of course, preclude the court from exercising its discretion to refuse to grant fresh leave, or later to set aside the fresh leave as granted, in appropriate circumstances.

34. Second, the purpose of the time requirement under Order 52, rule 3(2) is, I apprehend, to ensure that contempt proceedings would be prosecuted by an applicant promptly after leave to apply for an order of committal has been granted. Any failure to comply with the time requirement would result in the lapse of the leave as granted such that it can no longer be utilized by the applicant to satisfy the requirement under Order 52, rule 2(1), namely, that no application for an order of committal against any person may be made unless leave to make such an application has been granted by the court. This sanction would be sufficient to satisfy the legislative purpose behind the time requirement under Order 52, rule 3(2). There seem to me no good reason why the applicant’s failure to comply with the time requirement should attract the further sanction that he may not seek fresh leave for an order of committal in the same proceedings.

35. Mr Pun argued that if the Secretary for Justice were allowed to have a second bite of the cherry by making a fresh leave application in the existing proceedings despite the lapse of the first leave, it would render the 14-day time limit under Order 52, rule 3(2) otiose. I do not accept this argument because, as earlier mentioned, the lapse of the first leave has the effect that it can no longer be relied upon by the applicant to satisfy the requirement under Order 52, rule 2(1). The logic of Mr Pun’s argument, if correct, would equally apply to any fresh leave application made in new proceedings. I am unable to accept that the legislature intends that a mere failure to comply with the time requirement under Order 52, rule 3(2) should be visited with the drastic consequence that the Secretary for Justice would forever be debarred from seeking an order of committal against the respondents.

36. Third, the purpose of the leave requirement under Order 52, rule 2(1) appears to be to “avoid persons being harassed by applications for committal which are either obviously unfounded or oppressive, or perhaps applications which have some suspicion of oppression about them” (per Hunter J in Fabrique Ebel Societe Anonyme at 168E-G). Again, the “no-jurisdiction” consequence contended for by the respondents would not, it seems to me, be required to give effect to such purpose of the leave requirement.

37. Mr Pun referred me to the decision of Yeung J (as he then was) in Aqua-Lesiure Industries Inc v Aqua Splash Ltd, HCA 18928/1998 (18 April 2001) and submitted that a “strict approach” is required in an application for an order of committal for contempt of court, and that “strict compliance” with the requisite rules must be observed. It should be noted, however, that the learned judge was there dealing with a completely different problem, namely, the applicant’s failure to set out sufficient particulars of the allegations in the notice of motion (under the former version of Order 52) and the statement in support of the leave application, and the question that he had to decide was whether the defects could be cured by the contents of the supporting affidavit. The learned judge held that the defects could not be so cured, and set aside the leave granted.

38. Incidentally, it is of note that Yeung J said that the setting aside of the HCMP774/2015 SECRETARY FOR JUSTICE v. CHAU WAN YING AND OTHERS

HCMP 774, 776-781, 783, 784, 787-789, 791-798/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS

NOs 774, 776-781, 783, 784, 787-789, 791-798 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 2104/2014

_______________

BETWEEN
	SECRETARY FOR JUSTICE	Applicant
	and
	CHAU WAN YING (周蘊瑩)	Respondent
		in HCMP 774/2015
	CHU WAI LUN (朱緯圇)	Respondent
		in HCMP 776/2015
	CHEUNG KAI YIN (張啟昕)	Respondent
		in HCMP 777/2015
	CHU PUI YAN (朱佩欣)	Respondent
		in HCMP 778/2015
	MA PO KWAN (馬寶鈞)	Respondent
		in HCMP 779/2015
	KWOK YEUNG YUK (郭陽煜)	Respondent
		in HCMP 780/2015
	SHUM LESTER (岑敖煇)	Respondent
		in HCMP 781/2015
	CHIU CHI SUM (趙志深)	Respondent
		in HCMP 783/2015
	CHAN PO YING (陳寶瑩)	Respondent
		in HCMP 784/2015
	CHEUNG KAI HONG (張啟康)	Respondent
		in HCMP 787/2015
	KWAN SIU WANG (關兆宏)	Respondent
		in HCMP 788/2015
	HUNG CHEUK LUN (熊卓倫)	Respondent
		in HCMP 789/2015
	FUNG KAI HEI (馮啟禧)	Respondent
		in HCMP 791/2015
	CHOI TAT SHING (蔡達誠)	Respondent
		in HCMP 792/2015
	SZETO TSE LONG JASON	Respondent
	(司徒子朗)	in HCMP 793/2015
	WONG LAI WAN (黃麗蘊)	Respondent in HCMP 794/2015

	WONG CHI FUNG (黃之鋒)	Respondent
		in HCMP 795/2015
	MAK YING SHEUNG (麥盈湘)	Respondent
		in HCMP 796/2015
	YEUNG HO WAH (楊浩華)	Respondent
		in HCMP 797/2015
	WONG HO MING (黃浩銘)	Respondent
		in HCMP 798/2015

_______________

(Heard together)

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

Dates of Hearing: 25 and 26 Feb 2016

Date of Decision: 8 March 2016

___________________

D E C I S I O N

___________________

INTRODUCTION

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

BACKGROUND FACTS

4. The underlying facts giving rise to these proceedings are well known to the parties and I do not propose to set them out in this decision.

6. On 16 April 2015, this court granted leave to the Secretary for Justice to apply for an order of committal against each of the 20 respondents (collectively “the April Orders”).

8. The 1^st Originating Summonses were not, however, entered for hearing within 14 days after leave was granted as required by Order 52, rule 3(2).

9. On 22 July 2015, the Secretary for Justice applied (collectively “the 2^nd Leave Applications”), again on an ex parte basis, against each respondent for leave to:-

(1) amend the Statement as per the copy annexed to the application (“the Amended Statement”) pursuant to Order 52, rule 2(6); and
(2) make an application for committal for criminal contempt of court against the respondent “on the facts and grounds appearing in the [Amended Statement] pursuant to Order 52 rule 2(2) of the Rules of the High Court (Cap 4A) accompanying this application which is supported by [Tsui’s First Affirmation] and the Second Affirmation of Tsui Wing Yan Yvonne affirmed on 22 July 2015 and filed herein and the exhibits thereto”.

11. On 30 July 2015, this court granted the relief sought by the Secretary for Justice under the 2^nd Leave Applications (“the July Orders”).

12. On 3 and 5 August 2015, the Secretary for Justice issued fresh originating summonses against the respondents (collectively “the 2^nd Originating Summonses”) pursuant to the July Orders.

13. On 7 August 2015, the Secretary for Justice issued, in respect of each respondent, a notice of appointment to hear the originating summons pursuant to Order 52, rule 3(2).

14. All respondents now seek to challenge the July Orders, although the precise relief sought by them is not identical.

16. By a summons taken out by the respondents in HCMP 776, 778, 780, 787, 792 and 795 of 2015 (represented by Mr Lawrence Lok SC and Ms Christine Yu) dated 23 November 2015, they seek:-

(1) a declaration that –
(a) the leave to apply for committal against them granted on 16 April 2015 lapsed on 30 April 2015,
(b) the court had no jurisdiction to grant leave to amend the Statement on 30 July 2015, and
(c) the court had no jurisdiction to grant leave to apply for committal against them on 30 July 2015 on the facts and grounds appearing in the Amended Statement; and
(2) an order to set aside the July Orders.

(1) a declaration that the leave to make applications for committal for contempt of court against them has lapsed, and/or
(2) an order that the originating summons in each of HCMP 777, 779, 781, 789, 793, 794 and 797 of 2015 filed on 5 August 2015 be dismissed for lack of jurisdiction; or
(3) an order that the July Orders granting leave to the Secretary for Justice upon the 2^nd Leave Applications filed on 22 July 2015 be set aside for material non-disclosure and/or abuse of process.

18. In response to the respondents’ applications, the Secretary for Justice issued a summons on 30 November 2015 seeking:-

(1) a re-grant of leave to commence contempt proceedings against the respondents should the leave granted under the July Orders be set aside on the ground of material non-disclosure and/or abuse of process; and
(2) further or alternatively, an extension of time to issue a notice of appointment to hearing originating summons pursuant to the leave granted under the April Orders in respect of each respondent should the court set aside the July Orders and dismiss the 2^nd Originating Summonses on the ground that the leave granted under the April Orders has lapsed by reason of the failure to comply with Order 52, rule 3(2).

THE RESPONDENTS’ APPLICATIONS

20. Three principal grounds are relied upon by the respondents in support of their applications, namely, that:-

(1) The lapse of the leave granted under the April Orders resulted in the court having no jurisdiction to make the July Orders. This argument has been put on behalf of the respondents in various ways. Mr McCoy in his written submissions puts it as a “lapse of jurisdiction”, in contradistinction to a “procedural defect”, which it is said cannot be cured by powers to amend which are premised on the principle that form should not overrule substance. Mr Lok argues that once leave has lapsed the entire committal proceedings must have collapsed and cannot proceed further, and that the proceedings could not be revived by the court granting fresh leave, or an extension of time under Order 3, rule 5. Mr Pun argues that the lapse of the leave granted under the April Orders means that there is “nothing further” for the court “to continue with” in respect of the current proceedings and therefore the 2^nd Leave Applications are invalid and/or a nullity.
(2) The 2^nd Leave Applications were not “fresh” applications for leave to apply for orders of committal, and in any event were not properly constituted by reason of the fact that the Secretary for Justice did not pay the prescribed court fee (HK$1,045) for commencement of each “originating ex parte application”.
(3) The leave granted under the July Orders should be set aside on the ground of material non disclosure or failure on the part of the Secretary of Justice to observe the duty of candour. The matters which it is said the Secretary of Justice ought, but failed, to disclose when making the 2^nd Leave Applications are:-
(a) a full account of the status of the proceedings subsequent to the 1^st Leave Applications, in particular that the leave granted under the April Orders had lapsed by reason of the failure to enter the 1^st Originating Summonses for hearing within 14 days after leave was granted and the consequences flowing from such lapse;
(b) the Secretary for Justice had paid the prescribed court fees upon commencing the 1^st Leave Applications and again when issuing the 1^st Originating Summonses, but did not do so upon commencing the 2^nd Leave Applications; and
(c) (according to Mr Pun) the Secretary for Justice’s position that he did not need to pay the prescribed fee twice, once when making a leave application and again when issuing an originating summons.

21. I shall consider each of these grounds of objections below.

COURT’S JURISDICTION AFTER LAPSE OF LEAVE

(i) Proper approach for determining the consequence of non-compliance

“The issue is of general importance and has implications for the failure to observe procedural requirements outside the field of immigration. The conventional approach when there has been non-compliance with a procedural requirement laid down by a statute or regulation is to consider whether the requirement which was not complied with should be categorised as directory or mandatory. If it is categorised as directory it is usually assumed it can be safely ignored. If it is categorised as mandatory then it is usually assumed the defect cannot be remedied and has the effect of rendering subsequent events dependent on the requirement a nullity or void or as being made without jurisdiction and of no effect. The position is more complex than this and this approach distracts attention from the important question of what the legislator should be judged to have intended should be the consequence of the non-compliance. This has to be assessed on a consideration of the language of the legislation against the factual circumstances of the non-compliance. In the majority of cases it provides limited, if any, assistance to inquire whether the requirement is mandatory or directory. The requirement is never intended to be optional if a word such as ‘shall’ or ‘must’ is used…
By contrast, a requirement may be clearly directory because it lays down a time limit but a tribunal is given an express power to extend the time for compliance. If the tribunal grants or refuses an extension of time the position is clear. If the time limit is extended the requirement is of no significance. If an extension is refused the requirement becomes critical. It may, for example, deprive a member of the public of a right to appeal which if exercised in time would have been bound to succeed. In the latter situation a directory requirement has consequences which are as significant as any mandatory requirement…
It must be remembered that procedural requirements are designed to further the interests of justice and any consequence which would achieve a result contrary to those interests should be treated with considerable reservation…
I suggest that the right approach is to regard the question of whether a requirement is directory or mandatory as only at most a first step. In the majority of cases there are other questions which have to be asked which are more likely to be of greater assistance than the application of the mandatory/directory test. The questions which are likely to arise are as follows.
1. Is the statutory requirement fulfilled if there has been substantial compliance with the requirement and, if so, has there been substantial compliance in the case in issue even though there has not been strict compliance? (The substantial compliance question.)
2. Is the non-compliance capable of being waived, and if so, has it, or can it and should it be waived in this particular case? (The discretionary question.) I treat the grant of an extension of time for compliance as a waiver.
3. If it is not capable of being waived or is not waived then what is the consequence of the non-compliance? (The consequences question.)
Which questions arise will depend upon the facts of the case and the nature of the particular requirement. The advantage of focusing on these questions is that they should avoid the unjust and unintended consequences which can flow from an approach solely dependant on dividing requirements into mandatory ones, which oust jurisdiction, or directory, which do not. If the result of non-compliance goes to jurisdiction it will be said jurisdiction cannot be conferred where it does not otherwise exist by consent or waiver.”

“The important question is whether, in requiring a particular condition to be satisfied before proceedings are brought, Parliament intended to confer a substantial protection on the putative defendant, such as to invalidate proceedings brought without meeting the condition, or to impose a procedural requirement giving rights to the defendant if a claimant should fail to comply with the requirement; but not nullifying the proceedings: see R v Soneji [2006] 1 AC 340, para 23. To answer this question a broader inquiry is called for.”

“In our judgment it is now wholly clear that whenever a court is confronted by failure to take a required step, properly or at all, before a power is exercised (‘a procedural failure’), the court should first ask whether the intention of the legislature was that any act done following that procedural failure should be invalid. If the answer to that question is no, then the court should go on to consider the interest of justice generally, and most particularly whether there is a real possibility that either the prosecution or the defence may suffer prejudice on account of the procedural failure. If there is such a risk, the court must decide whether it is just to allow the proceedings to continue.”

“A need to invalidate such proceedings unless leave is first obtained is undoubtedly exceptional and may be unique. Certainly, as their Lordships were careful to stress in Seal's case [2007] 1 WLR 1910, the imposition of a jurisdictional bar on access to the courts is a drastic measure, in contrast to a requirement that proceedings, once instituted, can be struck out if they do not pass muster, whether on specified statutory criteria or because they have no realistic chance of success.”

“So that the position is this. The applicants have launched their application without first obtaining leave under O.52. In those circumstances they invite the court, to regulate the proceedings by a necessary assuaging order under O.2 r.1; an order which would retrospectively give them leave and direct that the proceedings are to continue as if leave had initially been granted.
Three points have been taken on this. The first is whether or not this is the sort of mistake in respect of which discretion can properly be exercised under O.2…
O.2 r.1 follows verbatim the change in the rules introduced in England in 1965. That came before the Court of Appeal in Harkness v. Bell's Asbestos and Engineering Limited (1967) 2 Q.B. 729. In the course of giving his judgment in that case the Master of the Rolls, Lord Denning says this: -
‘This new rule does away with the old distinction between nullities and irregularities ..... Every omission or mistake in practice or procedure is henceforth to be regarded as an irregularity which the court can and should rectify so long as it can do so without injustice.’
I should explain that before this alteration was brought about, a body of case law had developed which drew a distinction (a very difficult dividing line it was) between mistakes which rendered the procedural step a nullity, and mistakes which simply constituted irregularities. What Lord Denning was there saying firmly was that that distinction has now gone. That in substance is why the rule says that a number of failures which are set out ‘shall be treated as irregularities’. That is also I think why the M. R. says that the court not only can, but should, rectify such errors, so long as it can do so without injustice…
I accept that this is a procedure which ought to have been followed. It is an important step in so far it is a protection to the liberty of the individual. I believe that when one finds that a failure like this has taken place, the first question which the court has to ask itself is: What would I have done if an application for leave had been made. And if the answer to that is: I would have granted leave without hesitation: then I think that that is the way to approach this particular application. I have no doubt here that had application been made to me for leave, it would have been granted. In those circumstances I ask myself what injustice is there now in validating proceedings which have continued since last October, on the assumption on everybody's part that they were valid and effective. I cannot see any. So my answer to the first question is that this is a proper case for the exercise of the Court's discretion under r. 2.”

(ii) Application to the present case

32. In my view, the following considerations strongly militate against any legislative intention that the lapse of leave should carry such consequence.

38. Incidentally, it is of note that Yeung J said that the setting aside of the leave was “without prejudice to the plaintiffs commencing a fresh proceeding on properly formulated Statement”. I do not read the learned judge as expressing the view that leave could only be sought in fresh proceedings, because the question of whether the court had jurisdiction to grant fresh leave in the existing proceedings was, it would seem, never debated.

39. The respondents also argued that I had decided, in my previous decision in Secretary for Justice v Cheng Kam Mun [2015] 5 HKLRD 41, that after the lapse of leave the proceedings should cease as a matter of jurisdiction. In fact, there was no application for fresh leave in the cases before me on that occasion and I did not have to deal with the question of whether the lapse of leave under Order 52 rule 3(2) would mean that the court could not grant fresh leave in the same proceedings. The four questions that I had to consider were set out in paragraph 22 of that decision.

40. In all, I am of the view that the court had jurisdiction to make the July Orders notwithstanding the lapse of leave granted under the April Orders.

THE 2^ND LEAVE APPLICATIONS WERE FRESH LEAVEAPPLICATIONS

41. The 2^nd Leave applications were, on their face, fresh leave applications. In each application, the Secretary for Justice sought, in terms, (1) leave to amend the Statement, and (2) leave to make an application for committal for criminal contempt of court against the respondent. The July Orders also expressly granted to the Secretary for Justice (i) leave to amend the Statement, and (2) leave to make an application for committal for criminal contempt of court against the respondents.

42. At paragraph 15 of Mr McCoy’s written submissions, he suggested that because Mr Suen had said at paragraph 16 of his affirmation that “no thought was directed towards whether a new set of HCMP numbers should be adopted”, that would be an indication that the Secretary for Justice was not aware that he was applying for, or obtaining, “fresh leave”. It seems to me that the assignment of a case number to any cause or matter is merely an administrative matter, and has little bearing on the question of whether the 2^nd Leave applications ought properly to be treated as fresh leave applications.

43. At paragraph 16 of Mr McCoy’s written submissions, he further argued that the leave granted to make an application for committal “on the basis of a correct version of statement of facts” under the July Orders “merely rode on the back of the application to amend the statement of facts, upon the assumption the original jurisdiction was still engaged”. A similar same point was made by Mr Lok at paragraphs 26 and 27 of his speaking notes dated 23 February 2016. In my view, the 2^nd Leave Applications included two applications: (1) an application for leave to amend the Statement, and (2) an application for leave to apply for an order of committal. I fail to see why the fact that there was an application for leave to amend the Statement would mean that there was not also an application for leave to apply for an order of committal.

44. Both Mr Lok and Mr Pun argued that the 2^nd Leave applications were not fresh leave applications because the Secretary for Justice did not pay the prescribed fee upon the commencement of the applications. Rule 2(1) of the High Court Fees Rules (Cap 4D) provides that the fees respectively specified in the First and Second Schedules shall be payable in respect of all proceedings in any action or matter whatsoever in the High Court, “whenever commenced”. Paragraph 1 of the First Schedule, under the heading “commencement of a cause or matter”, provides for payment of the fee HK$1,045 on sealing (inter alia) “(e) an originating ex parte application”. My reading of the rules is that a court fee is payable upon the “commencement” of proceedings, including an originating ex parte application for leave to apply for an order of committal. However, since the 2^nd Leave Applications were made in existing proceedings which had already been commenced and the appropriate fees had previously been paid upon the commencement of those proceedings, I do not consider that a separate fee had to be paid upon the making of the 2^nd Leave Applications. In any event, even if I am wrong on this point, I do not accept that the failure of the Secretary for Justice to pay fees when making the 2^nd Leave Applications means that they were not fresh leave applications.

45. In all, I consider that the Secretary for Justice made fresh applications for leave to apply for an order of committal against the respondents on 22 July 2015, and the court granted fresh leave to the Secretary for Justice on 30 July 2015.

THE 2^ND LEAVE APPLICATIONS WERE PROPERLY CONSTITUTED

46. The respondents submitted that because Secretary for Justice failed to pay the prescribed fees upon commencing the 2^nd Leave Applications, those applications were not properly constituted and therefore the court had no jurisdiction to make the July Orders.

47. I have already dealt with the question of whether the Secretary for Justice was required to pay the prescribed fees upon commencing the 2^nd Leave Applications. Assuming that I am wrong in my view that no fees were payable in the circumstances, the question of whether the 2^nd Leave Applications should be regarded as being not properly constituted would arise. This again raises an issue of statutory construction, and the inquiry is whether the legislature intends that a failure to pay the prescribed fees under the High Court Fees Rules means the proceedings are a nullity.

48. The High Court Fees Rules do not prescribe the consequence of a failure to pay the prescribed fees.

49. On the other hand, in relation to procedural requirements imposed by the Rules of the High Court, Order 2, rule 1(1) provides as follows:-

“Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of any thing done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify proceedings, any step taken in the proceedings, or any document, judgment or order therein.”

50. Although Order 2, rule 1(1) applies, on its face, only to a failure to comply with the requirements of the Rules of the High Court (“these rules”) and not to a failure to comply with the requirements of the High Court Fees Rules, this rule embodies a clear legislative intent regarding the consequence of a failure to comply with procedural requirements imposed by the Rules of the High Court, namely, to treat any failure as an “irregularity” only, leaving it to the court to decide what should be the just consequence of such failure under Order 2, rule 1(2). That being the position, I believe it to be a fortiori that the legislature does not intend to nullify proceedings commenced without payment of the prescribed fees under the High Court Fees Rules.

51. The respondents have drawn my attention to two cases in support of their argument. First, there is the decision of H H Judge Lopez in Price v Egbert H Taylor & Co Ltd (Birmingham County Court, 9 October 205). That case concerns the consequence of a failure to pay the prescribed fee for issuing an application for an extension of time for the service of the claim form, the particulars of claim, the schedule of loss and medical evidence in support of an action in personal injury. As one can see from paragraph 26 of the judgment in that case, the Civil Procedure Rules (CPR) in the UK contain express stipulations relating to the consequence of non-payment of fees. Also, an issue of limitation period arose in that case (see paragraphs 7 and 76 of the judgment). I do not consider this judgment to be helpful in deciding whether a failure to pay the prescribed fees under High Court Fees Rules upon the commencement of proceedings would lead to the proceedings being treated as a nullity.

52. Next, there is the decision of the Court of Appeal in Re Li Jing [2015] 2 HKLRD 933, where the applicant failed to pay the required fee before lodging a notice of appeal against a judge’s decision refusing the applicant’s ex parte application for leave to apply for judicial review. The fee was in fact paid after the 14-day time limit for appeal had expired. The Court of Appeal did not hold that the proceedings commenced by the notice of appeal were a nullity for non-payment of the required fee. As rightly observed by Mr Benjamin Yu SC (for the Secretary for Justice), in that case the applicant required an extension of time to appeal in any event, and the Court of Appeal did consider whether time ought to be extended to allow the applicant to appeal. Again, I do not consider the decision of the Court of Appeal in Re Li Jing supports the respondents’ argument.

53. If, contrary to my view, the Secretary for Justice was required to pay the prescribed fees upon commencing the 2^nd Leave Applications, I consider that the failure to pay the fees would amount only to an irregularity but would not nullify the 2^nd Leave Applications or any of the steps taken thereafter in these proceedings. In that scenario, the irregularity could and, in my view, should be cured by ordering the Secretary for Justice to pay the outstanding prescribed fees.

54. In all, I reject the respondents’ argument that the 2^nd Leave Applications were not properly constituted, or that the court had no jurisdiction to make the July Orders, by reason of the Secretary for Justice’s non-payment of the prescribed fees upon commencing the 2^nd Leave Applications.

MATERAL NON DISCLOSURE/BREACH OF DUTY OF CANDOUR

55. I can deal with the complaint of material non disclosure and breach of the duty of candour briefly.

56. The relevant principles relating to material non disclosure and the duty of candour are well known and I do not propose to set them out in this decision.

57. In relation to the first matter relied upon by the respondents, namely, the alleged failure to set out a full account of the status of the proceedings subsequent to the 1^st Leave Applications, in particular that the leave granted under the April Orders had lapsed by reason of the failure to enter the 1^st Originating Summonses for hearing within 14 days after leave was granted and the consequences flowing from such lapse:-

(1) The fact that the leave granted under the April Orders had lapsed by the time of the 2^nd Leave Applications was self-evident on the face of the materials before the court and, in my view, there was no requirement to make disclosure of such self-evident matter. The legal consequence of the lapse of leave is a matter of law. Although the duty of full and frank disclosure may extend to matters of law and procedure in some circumstances (see Memory Corp plc v Sidhu [2000] 1 WLR 1443 at 1454C-G, per Robert Walker LJ), I have rejected the respondents’ contention that the lapse of leave means that the court has no jurisdiction to grant fresh leave in the same proceedings, and I do not see that the Secretary for Justice could be required to “disclose” (or set out) the respondents’ arguments regarding the consequences flowing from the lapse of leave, even if one were to assume that the Secretary for Justice was aware of the respondents’ arguments at that time.
(2) I also have considerable reservations on whether the fact that the leave granted under the April Orders had lapsed was relevant to the weighing operation that the court had to carry out in deciding whether to grant fresh leave. The court’s main consideration was whether the procedural and substantive requirements for granting leave under Order 52, rule 2 were satisfied, and whether it would be appropriate to grant leave on the basis of the grounds set out in the statement and affidavit filed in support of the leave application.

58. In relation to the second matter relied upon by the respondents, namely, the failure to disclose the fact that the Secretary for Justice had paid the prescribed court fees upon commencing the 1^st Leave Applications and again when issuing the 1^st Originating Summonses, but did not do so upon commencing the 2^nd Leave Applications, I have reached the conclusion that the Secretary for Justice was not required to pay the prescribed fees for commencing the 2^nd Leave Applications, and thus there was no question of material non disclosure.

59. Lastly, in relation to the third matter relied by Mr Pun, namely, the failure to disclose the Secretary for Justice’s position that he did not need to pay the prescribed fee twice, once when making a leave application and again when issuing an originating summons, I do not see how the omission by the Secretary for Justice to disclose his stance in relation to the matter of payment of the prescribed fee, assuming that he had formulated some such stance at the time of the 2^nd Leave Applications, can properly form the subject matter of material non disclosure in the present cases. Either a fee was payable, or not payable, depending on the true construction of the High Court Fees Rules. As it is, I have come to the conclusion that the Secretary for Justice was not required to pay another set of fees for making the 2^nd Leave Applications. Whether that is because no fee is payable for making a leave application, or because no fee is payable for making a second leave application in the same proceedings, makes no difference in the context of the present cases.

60. In any event, even if there was some material non disclosure or breach of duty of candour by the Secretary for Justice on any one or more of the grounds raised by the respondents, I would exercise my discretion not to discharge the leave granted under the July Orders, for the following reasons:

(1) The affidavit of Mr Suen Sze Yick filed on 30 November 2015 on behalf of the Secretary for Justice indicates that the non disclosure regarding to the lapse of the leave granted under the April Orders was “innocent”. The explanation given by Mr Suen has not been seriously challenged by the respondents, and it has not been suggested that the non disclosure was intentional or made in bad faith.
(2) If leave is set aside, it would be open to the Secretary for Justice to commence fresh proceedings to seek leave to apply for an order of committal against each of the respondents. This would only serve to increase costs and cause further delay with no benefit to any party.
(3) No tactical advantage has been gained by the Secretary for Justice in the way that the matter was dealt with by seeking fresh leave in the existing proceedings.

DISPOSITION AND OTHER MATTERS

61. For the foregoing reasons, I dismiss the respondents’ summonses.

62. Having reached the above conclusions, it is not necessary for me to deal with the Secretary for Justice’s summons dated 30 November 2015, and I make no order on that summons. Some of the issues raised by the Secretary for Justice’s summons are interesting but academic in view of my decision on the respondents’ summonses. I do not consider it justifiable to delay the handing down of this decision in order for me to deal with those academic issues, having regard to the history of these matters. Should it become necessary for those issues to be determined by the Court of Appeal, I doubt whether any input on those issues by me would be of much assistance to the Court of Appeal, in view of the fact that they raise questions of law and/or discretion upon essentially undisputed primary facts.

63. On the question of costs, I make an order nisi that:-

(1) the Secretary for Justice shall have the costs of the respondents’ summonses, to be taxed if not agreed, with certificate for two counsel;
(2) there be no order as to the costs of the Secretary for Justice’s summons; and
(3) the respondents’ own costs are to be taxed in accordance with Legal Aid Regulations.

64. Lastly, the parties are agreed that:-

(1) these 20 actions shall be tried together with 45 days reserved; and
(2) the deponents to the affidavits or affirmations listed in Schedule 2 to the Secretary for Justice’s skeleton submissions dated 4 November 2015 shall stand as their evidence in chief, provided that the deponents shall attend the trial to be cross examined on their affidavits or affirmations.

65. I therefore grant leave to the Secretary for Justice to fix dates for the substantive hearing of the 20 actions together, with 45 days reserved. I also make a direction in terms of (2) above.

66. 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 and Mr Victor Dawes, SC and Mr Martin Ho instructed by Department of Justice, for the applicant in (HCMP 774 of 2015, HCMP 776 of 2015 to HCMP 781 of 2015, HCMP 783 of 2015 to HCMP 784 of 2015, HCMP 787 of 2015 to HCMP 789 of 2015, HCMP 791 of 2015 to HCMP 798 of 2015)

HCMP 774, 776, 778, 780, 787, 792 and 795 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

HCMP 777, 779, 781, 789, 793, 794 and 797 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 783, 784, 788, 791, 796 and 798 of 2015

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

SECRETARY FOR JUSTICE v. CHU PUI YAN

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