Case Detail

HCMP 585/2022

[2023] HKCFI 1023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 585 OF 2022

________________________

	IN THE MATTER of an application on behalf of the Secretary for Justice against WONG Chi Fung (黃之鋒) for an Order of Committal
	and
	IN THE MATTER of civil proceedings in HCA 1957/2019
	and
	IN THE MATTER of criminal proceedings in WKCC 1553/2020

________________________

BETWEEN
	SECRETARY FOR JUSTICE	Plaintiff
	and
	WONG CHI FUNG (黃之鋒)	Defendant

________________

Before:

Hon Coleman J in Court

Date of Hearing:	17 April 2023
Date of Decision:	17 April 2023
Date of Reasons:	25 May 2023

_________________________

R E A S O N S F O R

D E C I S I O N

_________________________

A.Introduction

1. The now admitted contempt of court was committed by the Defendant on 14 August 2020. The proceedings seeking committal for that contempt were, however, only commenced by the Secretary for Justice (“SJ”) some 21 months later, on 11 May 2022. That simple chronology has required (1) the Defendant to have to apologise for not apologising sooner for his actions constituting the contempt, and (2) the SJ to have to seek to explain away the “unfortunate” delay, and to suggest that there is no logical connection between that delay and the appropriate penalty for the contempt.

2. That was not a particularly auspicious starting point for either party to these proceedings. The Court was also left in an unsatisfactory position.

3. The ex parte application for leave for committal against the Defendant was in respect of the Defendant’s breach of:

(1) the injunction order granted by the Chow J (now Chow JA) dated 25 October 2019, as amended on 28 October 2019, re-amended on 31 October 2019, continued and varied by the Coleman J on 8 November 2019 and amended on 11 December 2019 (“Police Doxxing Injunction”) in HCA 1957/2019 (“underlying civil action”); and
(2) the anonymity order granted by Principal Magistrate Peter Law Tak Chuen, dated 2 June 2020 (“Anonymity Order”) in WKCC1553/2020 (“underlying criminal proceedings”).

4. The breach occurred in that, on 14 August 2020, the Defendant published a post (“Post”) on his Facebook page (“Facebook Page”) (being an internet-based platform or medium) that disclosed the personal data of a police officer (“PW1”), PW1’s wife and PW1’s two daughters.

5. On 24 November 2022, I granted leave to the SJ to pursue this committal application against the Defendant: see Secretary for Justice v Wong Chi Fung [2021] 1 HKLRD 93 (“Leave Decision”). The documents were served on the Defendant on 7 December 2022, and he filed the Acknowledgement of Service on 20 December 2022.

6. Because the Defendant did not contest liability, I dealt with the matter at a mitigation and sentencing hearing on 17 April 2023. At the hearing, the SJ was represented by Mr Martin Ho of Counsel, and the Defendant was represented by Mr Albert NB Wong of Counsel.

7. At the conclusion of the hearing I sentenced the Defendant to an immediate period of three months’ imprisonment, for reasons to be handed down later. I also said that I would deal with the question of costs at the time of those reasons.

8. These are my Reasons for Decision.

B. Agreed Facts

9. The SJ and the Defendant have usefully agreed the following matters, so as to identify material facts relied on by the SJ that are not disputed by the Defendant for the purposes of the sentencing hearing.

B.1 The Police Doxxing Injunction

10. On 25 October 2019, the SJ and the Commissioner of Police (suing on his own behalf and on behalf of all other Police Officers and Auxiliary Officers) (collectively, the “Plaintiffs” in the underlying civil action) made an ex parte application for an injunction against persons unlawfully and wilfully conducting themselves in any of the acts prohibited under paragraphs 1(a), (b) or (c) of the Indorsement of Claim in the underlying civil action (collectively, the “Defendants” in the underlying civil action).

11. The acts prohibited under paragraphs 1(a), (b) or (c) of the Indorsement of Claim are:

(1)  using, publishing, communicating or disclosing to any other person the personal data of and concerning any Police Officer(s) and/or their spouses and/or their respective family members (namely parents, children or siblings), including but not limited to their name, job title, residential address, office address, school address, email address, date of birth, telephone number, Hong Kong Identity Card number or identification number of any other official identity documents, Facebook Account ID, Instagram Account ID, car plate number, and any photograph of the Police Officer(s) and/or their spouses and/or their respective family members (namely parents, children or siblings) (“Personal Data”), without the consent of the Police Officer(s) and/or their family member(s) (as the case may be) concerned;
(2)  intimidating, molesting, harassing, threatening, pestering or interfering with any Police Officer(s) and/or their spouses and/or their respective family members (namely parents, children or siblings); and/or
(3)  assisting, causing, counselling, procuring, instigating, inciting, aiding, abetting or authorizing others to commit any of the aforesaid acts or participate in any of the aforesaid acts.

12. On the same day, Chow J (as he then was), sitting in chambers (not open to the public), granted an injunction order (“Interim Injunction Order”) effective until the return date on 8 November 2019. The granting of the Interim 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 and various sources on the internet (“Local Media”).

13. On 28 October 2019, Chow J, sitting in Chambers (not open to the public), made an order to amend the Interim Injunction Order (“Amended Interim Injunction Order”). The granting of the Amended Interim Injunction Order was widely reported by the Local Media.

14. On 29 October 2019, the Plaintiffs made an inter partes application against the Defendants for continuation of the Amended Interim Injunction Order, fixed to be heard on 8 November 2019.

15. On 31 October 2019, Chow J, sitting in chambers (not open to the public), further made a technical amendment to the Amended Interim Injunction Order by amending the date of the Order (“Re-Amended Interim Injunction Order”). The Interim Injunction Order, Amended Interim Injunction Order and Re-Amended Interim Injunction Order would be collectively referred to as the “Interim Injunction Orders”.

16. On 5 November 2019, the Hong Kong Journalist Association (“HKJA”) applied to vary the Re-Amended Interim Injunction Order, by including the following terms:

(1) Paragraph 1 of the Re-Amended Interim Injunction Order does not prohibit any lawful act(s) which are done solely for the purpose of a “news activity” as defined in section 61 of the Personal Data (Privacy) Ordinance Cap 486 (“PDPO”); and
(2) Paragraph 1(a) of the Re-Amended Interim Injunction Order does not prohibit the disclosure of Personal Data to a data user whose business, or part of whose business, consists of a “news activity” where the requirements of section 61(2)(b) of the PDPO are satisfied.

17. At the hearing of the Plaintiffs’ inter partes application and the HKJA’s Summons on 8 November 2019, the Coleman J, sitting in chambers (open to the public), granted the Plaintiffs’ inter partes application by ordering the Re-Amended Interim Injunction Order to be continued, except with the removal of the reference to “interfere” in paragraphs 1(a) and (b) of the Re-Amended Interim Injunction Order. As regards the HKJA’s Summons, the Coleman J granted an order in terms as set out in paragraph (1) above but refused to include the terms as set out in paragraph 12(2) above (“Return Date Order”).

18. The handing down of the ruling and the sealing of the Return Date Order were widely reported by the Local Media.

19. On 29 November 2019, the Plaintiffs made an application to amend the Return Date Order. On 10 December 2019, Coleman J, sitting in chambers, granted the Plaintiffs’ application by amending on 11 December 2019 the Return Date Order to include Special Constable(s), their spouses and their respective family members (namely parents, children or siblings) (“Amended Return Date Order”). The granting of the Amended Return Date Order was widely reported by the Local Media.

20. The various orders were validly served by way of substituted service, by publishing a copy of the Interim Injunction Orders on the webpages of the Police as well as that of the Government of the Hong Kong Special Administrative Region.

21. For the purposes of this Decision, and as already defined above, I shall refer to the various Orders as eventually made as the “Police Doxxing Injunction”.

B.2 The Anonymity Order

22. On the morning of 11 November 2019, a police officer (“PW1” or “Officer”) used his firearm during a public order event in Sai Wan Ho (“Sai Wan Ho Incident”).

23. Since the Sai Wan Ho Incident, PW1 and his family had been subjected to widespread doxxing on social media, such as Facebook, LIHKG (連登) and Telegram.

24. In the course of the underlying criminal proceedings, upon the Prosecution’s application, on 2 June 2020, Principal Magistrate Law Tuk Chuen Peter granted the Anonymity Order to protect the identities of PW1 and his families. The material terms of the Anonymity Order are as follows:

鑑於本案的性質及[PW1] 的背景，及為保障公眾及[PW1] 與其妻及兩女兒的利益。法庭現命令禁止任何人（包括傳播媒體）發佈或報導任何可能會致使公眾識別[PW1] 身分的事項，包括：
1.  [PW1] 及其妻，兩女兒姓名；
2.  [PW1] 及其妻，兩女兒照片；
3.  [PW1] 及其妻，兩女兒住址；及
4.  [PW1] 及其妻工作地點和兩女兒就讀學校。
直至法庭另有命令為止。
任何人士發佈或引致任何發佈而披露[PW1]與其妻及兩女兒的身份，將可能被視作藐視法庭命令。
(English translation)
In view of the nature of this Action and the background of [PW1], and in order to protect the interest of the public and [PW1] and his wife and two daughters, the Court now orders that, until further order by the Court, all persons (including medium of communication) be prohibited from publishing or reporting any matters that may led the public to identify [PW1], including:
1.  the name of [PW1] and his wife and two daughters;
2.  the photos of [PW1] ad his wife and two daughters;
3.  the residential address of [PW1] and his wife and two daughters; and
4.  the work address of [PW1] and his wife and the school(s) of the two daughters.
Anyone who publishes or causes to publish [matters] that disclose the identity of [PW1] and his wife and two daughters may be held liable in contempt of court.

25. The granting of the Anonymity Order was widely reported by the Local Media.

B.3 The Defendant’s Breach of the Police Doxxing Injunction and the Anonymity Order

26. During a cyber patrol by the Police on 16 August 2020, PW3 came across the Post, i.e. a Facebook post published on the Defendant’s Facebook Page on 14 August 2020 that is addressed to Nathan Law (羅冠聰; “Law”) a politician who was formerly a member of the Legislative Council, and entitled “聽聞無差別殺人犯 [PW1] 成家喺英國。” (English translation: “heard that [PW1], the indiscriminate killer and his family are in the United Kingdom”). The Post disclosed PW1’s full Chinese name and led the general public to be able to identify PW1 as the Police Officer involved in the Sai Wan Ho Incident.

27. The Post attached with a LIHKG (連登) thread (“LIHG Thread”) captioned “聽聞無差別殺人犯 [PW1] 成家都[喺]英國準備自投羅網” (English translation: “heard that [PW1], the indiscriminate killer and his family are in the United Kingdom, ready to put their heads into a noose” ) with the blurb “相信無人唔記得佢地希望有英國手足同在英港人報料女皇搵仔正式啟動 …” (English translation: “trust that no one would forget about them, hope comrade in the United Kingdom and Hong Kong citizens in the United Kingdom could provide intelligence, “the Queen finds son” campaign officially commenced”) that:

(1) Disclosed four photos of PW1, his spouse and his family members (namely, his two daughters). One of the four photos was a digitally edited photo of PW1 and his two daughters with knives object on each of the daughters and with the caption “我地老豆係殺人犯:)” marked thereon; and
(2) Contained a pinned message that stated, among other things, the thread is to report “about the 2 daughters of a grave human rights abuser taking freedom away from Hong Kong – Mr. [PW1]. He is a police officer in Hong Kong…”. Such pinned message embedded links to webpages containing personal information of PW1, his spouse and his family members (namely, his two daughters), including, amongst others, Hong Kong Chronicles (a prominent Police doxxing website) “profile” of PW1 titled “[PW1]: 香港警察，濫權黑警 [PW1’s police unique identification number] (WKCC 1553/2020)” (“Hong Kong Chronicles’ Profile”).

28. The Hong Kong Chronicles’ Profile embedded in the LIHKG Thread attached in the Post:

(1) disclosed various personal data of PW1, his spouse and his family members (namely, his two daughters) including PW1’s full Chinese and/or English names and HKID numbers of PW1, his spouse and his family members (namely, his two daughters), date of birth of PW1 and one of his daughters, home and/or mobile telephone numbers of PW1, his spouse and his family members (namely, his two daughters), e-mail address or social media account of PW1 and one of his daughters, residential address of PW1 and his wife’s family, and ten photographs of PW1, his spouse and his family members (namely, his two daughters); and
(2) referenced the criminal proceedings in WKCC 1553/2020, including the title “[PW1]: 香港警察，濫權黑警[…] (WKCC 1553/2020)” and the content of the Anonymity Order, i.e. “… 裁判官羅德泉企圖禁止任何人披露[…]等人嘅資料，案件編號為 WKCC 1553/2020”.

29. The status of the Post, as shown by a “Globe” icon underneath the Facebook account’s name, was “Public” (i.e. the Post was publicly accessible by anyone with connection to the internet). At the material time, the Facebook Page had a large social media following with 458,241 likes and 500,808 followers (as at 28 August 2020).

30. The Post was deleted. Upon Police’s checking on 17 August 2020 at around 11:00am, the Post was found to have been deleted.

31. On 17 August 2020, Wen Wei Po reported in a news article that the Defendant had disclosed PW1’s personal data on his Facebook Page in breach of the Anonymity Order and the Police Doxxing Injunction.

32. The Post, despite being relatively short-lived (less than two days, namely between 11:39pm on 14 August 2020 when the Post was published and 7:51pm on 16 August 2020 when the Post was captured by the Police upon cyber patrol), attracted wide attention with 4,900 counts of reactions (i.e. “like”, “anger” and “laugh”), 186 comments and 376 shares.

33. Further, the LIHKG Thread attached to in the Post was also commented on by 2,054 Facebook users, including several comments inciting others to sexually harass PW1’s two daughters.

B.4 Police Investigation

34. Police intelligence revealed that the account holder of the Facebook Page was the Defendant, who resided at an address in Ap Lei Chau, Hong Kong. The Defendant had control of the Facebook Page at the material time:

(1)  The Defendant’s personal particulars are set out in the Facebook Page.
(2)  On 17 August 2020 (about 3 days after the Post), a photo of a Summons issued against the Defendant for knowingly taking part in an unauthorised assembly in breach of section 17A(2)(a) of the Public Order Ordinance Cap 245 was published on the Facebook Page. The caption to that photo stated that “[h]ere is the summons to defendant I received from [an officer] of Hong Kong Police Force recently”.
(3)  In August 2020 (in the month when the Post was made), the Defendant hosted 10 live videos on the Facebook Page.
(4)  Various posts on the Facebook Page were written in the first person until the Defendant was remanded since the end November 2020. (The Defendant’s Facebook Page remained active even after his imprisonment in which messages are said to be passed on his behalf.)

35. The Post addressed to Law purported that PW1 and his family were in the United Kingdom at the material time.

36. PW1 confirmed that the full Chinese name shown in the Post accurately stated his full Chinese name. Further, PW1 confirmed the accuracy of all personal data stated in the Hong Kong Chronicles’ Profile. PW1 and his family members had never supplied their personal data to the Defendant and had never given consent to the Defendant (or any other person(s)) to disclose any of their personal data (including PW1’s full Chinese name) on the Facebook Page.

37. As a result of this unauthorised disclosure of personal data, PW1 (and his family members) have received numerous nuisance telephone messages, such as from various loan-making institutions, and letters with intimidating contents. His two daughters have been bullied at school and have had to reluctantly change school. PW1 and his family members have been under immense stress, including difficulty in sleeping soundly. Given the severity of the nuisance, harassment and intimidation against PW1 and his family members, each (PW1, his wife and his two daughters) have had to change their mobile phone numbers and were arranged to stay in a safe house for around a year. PW1 also had to be transferred to another posting within the Police Force.

38. The Defendant’s breach of the Police Doxxing Injunction and Anonymity Order was contumacious and contumelious, in that he proceeded to publish the Post on the Facebook Page notwithstanding his knowledge of the existence of the Police Doxxing Injunction and the Anonymity Order.

B.5 Conclusion

39. By reason of the aforesaid:

(1)  By way of the Post on his Facebook Page, the Defendant used, published, communicated and/or disclosed to other persons the personal data of and concerning PW1 (i.e. a Police Officer), his spouse and his family members (namely, his two daughters) without their consent and/or information that may lead the public to be able to identify PW1, including PW1’s full Chinese name. Such personal data including PW1’s full Chinese and/or English names and HKID numbers of PW1, his spouse and his family members (namely, his two daughters), date of birth of PW1 and one of his daughters, home and/or mobile telephone numbers of PW1, his spouse and his family members (namely, his two daughters), e-mail address or social media account of PW1 and one of his daughters, residential address of PW1 and his wife’s family, and ten photographs of PW1, his spouse and his family members (namely, his two daughters).
(2)  The Defendant, by using, publishing, communicating and/or disclosing the personal data of PW1, his spouse and his family members (namely, his two daughters) and together with the wordings “聽聞無差別殺人犯 [PW1] 成家喺英國” (English translation: “heard that [PW1], the indiscriminate killer and his family are in the United Kingdom”) in the Post on the Facebook Page and by making such information public (in circumstances where his Facebook Page was widely read and subscribed by members of the general public), must have been aware that his act(s) mentioned in sub-paragraph (a) above is/are likely to intimidate, molest, harass, threaten or pester PW1, his spouse and his family members (namely, his two daughters).
(3)  The Defendant, by using, publishing, communicating and/or disclosing the personal data of PW1, his spouse and his family members (namely, his two daughters) in the Post on his Facebook Page, assisted, counselled, instigated, incited, aided or abetted others to commit or participate in any of the acts mentioned in sub-paragraphs (1) and (2) above.
(4)  As mentioned above, the Police Doxxing Injunction was duly served by way of substituted service (via publication on the Police and the Government webpages) and the granting of the Police Doxxing Injunction was widely reported in the Local Media. The Defendant, being an active internet user who frequently browsed and shared online news articles on his Facebook page, must have been aware of the material terms of the Police Doxxing Injunction prior to his publication of the Post.
(5)  The granting of the Anonymity Order was widely reported in the Local Media. By attaching the link to the LIHKG Thread which further embedded a link to the Hong Kong Chronicles’ Profile with references to the Sai Wan Ho Incident, the underlying criminal proceedings and the Anonymity Order, the Defendant must have been aware of the material terms of the Anonymity Order prior to his publication of the Post.

40. The deliberate acts of the Defendant identified in paragraph 39 above, coupled with his knowledge of the Police Doxxing Injunction and the Anonymity Order, amounted to contempt of court which was contumacious and contumelious.

41. In the circumstances, the actions taken by the Defendant constitute a breach of the Police Injunction Order and the Anonymity Order.

42. I included the application of the above agreed facts to my consideration of sentence.

C. Sentencing Principles

43. The sentencing principles for a breach of the Police Doxxing Injunction have been outlined by me in a number of previous decisions: see, for example, Secretary for Justice v Chan Oi Yau Riyo [2020] 3 HKLRD 494 at §§54-63; Secretary for Justice v Cheng Lai King [2020] 5 HKLRD 356 at §§64-72; and Secretary for Justice v Chan Kin Chung [2021] 1 HKLRD 563 at §§38-45.

44. It can also be borne in mind that the breach of the Anonymity Order involves a criminal contempt of court, namely a serious interference with the due administration of justice: see Secretary for Justice v Chin Po Fung[2021] HKCFI 598 at §15.

45. Those principles can be read, and it is unnecessary to set them out at any great length in these Reasons for Decision. I had them all in mind. The following points are, however, worth specific mention:

(1)  The prime consideration in sentencing is to demonstrate to litigants that orders of the court are to be obeyed. Contempt of court orders is a serious matter.
(2)  The imposition of the penalty requires a balance between (a) the strong public interest in ensuring that orders of court will not be flouted and (b) the evaluation of the individual circumstances of each case.
(3)  Subject to mitigating factors, if any, the starting and primary penalty for contempt of court in breaching an order in the nature of an injunction is an immediate custodial sentence, and one perhaps measured in months.
(4)  Nevertheless, imprisonment is ordinarily regarded as a sanction of last resort, and any custodial term should be as short as possible and consistent with the circumstances of the case.
(5)  In typical civil proceedings, the party in contempt may be punished through procedural steps within the action, if the contempt is not purged. However, the nature of the Police Doxxing Injunction and the breach of it are not exactly analogous (though the preference can be noted to avoid a sentence of imprisonment of other means of sanction would appear to be sufficient and proportionate).
(6)  A consideration of the particular circumstances will require regard to both aggravating factors and mitigating factors, including whether any prejudice suffered by the plaintiff, whether the prejudice is capable of being remedied, whether the contemnor has cooperated and purged the contempt, as well as the personal circumstances of the contemnor.
(7)  The facility afforded by the internet and social media to broadcast and publish material widely makes breaches involving such actions worse rather than less serious.
(8)  The fact that the person in contempt is in a position of influence and is a person to whom others may look as an example is an aggravating factor.

46. I also repeat a point made by me previously, namely that rights and freedoms do not exist in a vacuum. They come with responsibilities. Any person claiming to exercise their own rights and freedoms must simultaneously have respect for the rights and freedoms of others.

D. Lapse of Time or Delay

47. In my Leave Decision, I expressed considerable and real concerns about the long period of delay in bringing the Defendant’s relevant breach of the Police Doxxing Injunction to the attention of the Court, in the delayed making of the application for leave for committal. I expressed the concern that delay could undermine the public policy origin of the inherent jurisdiction of contempt of court, a view expressed in my earlier decisions to which I made reference in the Leave Decision.

48. I also pointed out that, on the materials provided, it could be seen that the Police had concluded the bulk, if not the entirety, of the relevant investigations is revealed in the facts now relied upon in support of the application to commit the Defendant for contempt of court, by 17 August 2020. Nevertheless, it was a further approximately 20 months before the application was made for leave for committal (which application was made on exactly the same date as were two other applications, and just two weeks or so before a fourth). I also pointed out that the first three applications were made within about two weeks following the last of a series of prior decisions in which I had expressed real concern about the long periods of delay in bringing similar previous applications.

49. From the evidence of the Officer (PW1) filed in these proceedings, it seems that it was only on 4 May 2022 that he was first shown the offending Post made by the Defendant (saying that he had never seen the screenshot of the post or its contents before). This is so, notwithstanding that the Officer also states that he was aware of doxxing activities against him since November 2019. It remains unclear why it would need 20 months to obtain the primary evidence from the Officer. I also note that the SJ’s claimed costs includes time spent with ‘client’ of around four hours. Assuming the client is the Officer, Mr Wong is correct in his submission that the time spent/interest benefit analysis would appear hugely to have favoured bringing this case to Court as soon as possible.

50. Indeed, though I have acknowledged in the Leave Decision that any perception of ‘sitting on’ cases, in the sense of ‘warehousing’ them, has been dispelled by the evidence filed for that argument, I agree with Mr Wong that the overall explanation for delay remains not particularly convincing.

51. In my Leave Decision (at §§31-32), I pointed out:

(1)  If it was the SJ’s view that there is overwhelming evidence against the Defendant (and others), it might be asked why such strong applications were not brought to the Court with reasonable speed.
(2)  At least some of the proposed defendants – of course, including the Defendant himself – are known individuals who sought to carry significant influence in their expressions of views, and who sought to create a tide of opinion.
(3)  So that it might be thought that the DOJ’s resources would obviously be directed at bringing such strong applications to the fore, rather than focusing on applications relating to others who were swept up in that tide.
(4)  Further, surely the most important time for sending a clear deterrent signal or message to society was much closer to the events for which a deterrent signal was required, and for which it might be most effective.

52. There is also great force in Mr Wong’s submission that had there been contempt proceedings initiated in 2020 against someone as high profile as the Defendant, leading to an apology, acceptance of liability and punishment, that would have deterred in 2020 any further breaches of the Police Doxxing Injunction – or even a connected injunction intended to restrain incitement. As Mr Wong submits, perhaps the DOJ would not then have been inundated with so many cases.

53. To put it another way, some of the circumstances which the SJ now relies upon as explaining, if not justifying, the significant delay – namely the huge number of cases which were considered for possible contempt proceedings – would likely have been somewhat different had the DOJ focused on the ‘big fish’ rather than the ‘low hanging fruit’ (if I might mix my metaphors). It would be surprising if there were not some form of prioritising, yet that is clearly not evident in the failure to have brought applications like this one in good time, when it might have had the greatest effect.

54. Indeed, as Mr Wong also submits, the deterrent effect of the Defendant’s apology now – and any penalty imposed on the Defendant – has been undermined by the SJ’s delay in bringing these proceedings. It might also be thought that an opportunity to lessen the nuisance, harassment and intimidation suffered by the Officer and his family was in effect passed up as a result of the delay.

55. To be more balanced, the undermining of the deterrent effect and loss of opportunity to lessen the harassment have at least been contributed to by the SJ’s delay in bringing these proceedings. But, to an extent, this point also counts against the Defendant.

56. This is because there was also delay on the part of the Defendant. I acknowledge that the Post was removed within two days. However, a significant part of the damage caused would have been caused within those two days. That might have been significantly reduced, had the Defendant not just removed the Post but had at the same time publicly and expressly disavowed any of the sentiments in the materials and linked materials, and in the comments and responses made by numerous persons as a result.

57. I acknowledge that the Defendant has now unreservedly apologised for his part in the incident, and that he now states that he fully understands the extent of the harm that he caused and now does not hesitate to condemn such comments as were contained in the LIHKG Thread at the time. But he did not apologise when he removed the Post, nor did he then express that relevant understanding or condemnation.

58. As the Defendant has himself now recognised, a sooner apology could have had a much greater effect of diffusing the then tense social climate. Indeed, such actions by someone who – as was recognised by Mr Wong in his submissions – was “as high profile as” the Defendant could indeed have had a significant calming or deterrent effect. That is also a corollary of the fact that the Defendant’s high profile made it likely that the making of the Post would have significantly wide and broad effect.

59. Instead, as I said at the beginning of these Reasons for Decision, the Defendant has had to offer an apology for not apologising sooner. That he has done so, seems to me to reflect a fundamental shift in his thinking or attitude since around the time of the events leading to his admitted contempt (as to which, see further, below).

60. But, because of the fundamental shift in his thinking or attitude since 2020, I take with a pinch of salt the assertion made by Mr Wong for the Defendant, that had he been notified or alerted to potential contempt proceedings he would have been equally willing then as he is now to accept liability and apologise.

61. Nevertheless, Mr Wong rightly accepted on behalf of the Defendant that the delay in these proceedings does not make the Defendant less culpable. But, he submitted, even if the SJ’s proposition that there is no “logical connection” between delay and the lighter sentence is correct, various points on delay may affect the costs order.

E. SJ’s Submissions

62. In his submissions on behalf of the SJ, Mr Ho suggested that the appropriate starting point of an immediate custodial sentence measured in months was also the appropriate endpoint, both as a matter of principle and on the facts of the case. He relied on five broad points, being:

(1)  The Defendant was a widely known activist and had a large following on Facebook. He was plainly someone to whom some members of society would look as an example. Hence, the fact that the Defendant was in a position of influence is an aggravating factor in two ways, namely (a) he had abused the social influence enjoyed by himself, and (b) it would mean that any message he had posted online would be spread far and wide, thus deepening the effect of doxxing on the police officer and his family.
(2)  The Facebook Post was made accessible to the general public, and was also addressed to Law, another well-known politician in Hong Kong. The ability for rapid and wide dissemination of information online makes the Defendant’s breach (by the utilisation of social media) worse rather than less serious.
(3)  The information embedded within the Facebook Post, including the comments in the LIHKG Thread and the Hong Kong Chronicles webpage contains extensive personal data of the police officer and his family members. It also contains distasteful and repulsive comments (including ones inciting others to sexually harass the police officer’s daughters). This is relevant to the assessment of victim impact, where the harm done is severe and long-lasting.
(4)  It is not to the point to say that the Facebook Post was short-lived. As previously observed by this Court, once personal data has been publicly revealed on the Internet or social media, even if the original point revelation is subsequently removed, that personal data will almost certainly forever remain publicly available. That is the very nature of the Internet and social media, and is the obvious consequence of the repeated re-posting of earlier posts. To use a phrase in common parlance, it is impossible to put the genie back into the bottle. The kind of damage caused is also likely to have long-lasting effect.
(5)  Accordingly, the Court should send a clear message to the public that such conduct is not to be tolerated in a civilised society. The SJ remains of the view that there is still a societal need for deterrent messages to be sent in light of the prevailing social atmosphere.

63. These are all points I took into account.

64. Mr Ho did acknowledge that certain mitigating factors may be advanced on behalf of the Defendant including (1) his admission of liability at an early stage of the proceedings, and the acceptance of responsibility for his actions, (2) the fact that the Defendant deleted the Facebook Post on his own accord shortly after its publication, and (3) the Defendant had no prior conviction for acts relating to doxxing (though he had one prior record of criminal contempt of court relating to the Occupy Central Movement).

F. Defendant’s Evidence

65. In his affidavit filed for these proceedings, the Defendant stated by way of introduction the following (in my summary):

(1)  The purpose of the affidavit is to express the Defendant’s clear intention to sincerely apologise to the Court, and to declare that he does not wish to undermine, define, or affront the authority of the Court.
(2)  He wishes to make clear his respect for the Court, and to express the deepest apologies as well as to disavow any public statements that may be seen to have breached the Police Doxxing Injunction and the Anonymity Order.
(3)  He wishes to apologise to the police officer and his family, and in particular to his two daughters.
(4)  He was horrified to read the types of comments aimed against the daughters, and fully appreciates the distress that must have caused.
(5)  Though he was not aware of the comments at the time, he is deeply remorseful and regretful for having played any part in the incident.
(6)  The comments made are completely antithetical to the religious and social values he holds dear, and he unreservedly condemns comments of such a nature aimed at young women.

66. The Defendant then set out his personal background, including the religious family background to which he attributes much of his interest in social affairs, and to the recognition of the importance of supporting others in the community less fortunate than himself. He appreciates and shares the desire to “draw a line” under – perhaps an echo of the phrase I used in the Leave Decision at §1 – the period of his involvement in social movements, which culminated in extreme polarisation of society.

67. Though he has in effect been without liberty since around November 2020, he considers himself a student and – battling the dyslexia and learning difficulties experienced at school – he has sought to further his studies in theology and economics. He graduated with a bachelor degree in Social Sciences in Politics and Public Administration in 2020.

68. The Defendant set out his other criminal convictions, in connection with unauthorised or unlawful assemblies, but (he says) unrelated to the current proceedings – and to the fact that he has pleaded guilty to a charge of conspiracy to commit subversion, on which he awaits sentencing.

69. He acknowledged that the Post attaching the LIHKG Thread was in breach of the Police Doxxing Injunction and the Anonymity Order. But he wished to stress that at no time did he intend to challenge or undermine the authority or integrity of the Court. As the Defendant put it, the political climate at the time was incredibly volatile, and in the heat of the moment and frustration he shared the Post. Regrettably, he did not pay sufficient attention to the consequences of that action, not least in failing to consider the effects on the family of the police officer.

70. It was on his own initiative (and not because he was warned by Wen Wei Po) that he removed the Post in the morning of 16 August 2020. Upon reflection, he also recognises that he should have instantly apologised and urged people not to put family members into distress, and he deeply regrets not having done so.

71. He says that, since he became the subject of a number of criminal proceedings, the Post was not at the forefront of his mind from around the end of 2020. But had he been aware that the SJ was contemplating contempt proceedings, he would have instantly admitted liability and apologised.

72. The Defendant also set out his service to the community since his high school years in 2012, by reference to the number of individual matters over the following years. One matter was to assist in the purchase of facemasks for vulnerable groups, during the recent pandemic. I think it can be accepted that the type of community service was altruistic.

73. The Defendant also exhibited mitigation letters from his family, pastors and teachers who have known him through the years. They tend to present a consistent picture of the Defendant, emphasising his compassion and dedication to community service. Amongst the letters:

(1)  His mother describes the Defendant as showing compassion from an early age, and that social injustices and hardships faced by grassroots communities motivated the Defendant to become involved in politics, with the belief that it is the key to solving problems. His mother says that the Defendant is committed to Christian values and strives to create a fair and just society.
(2)  A Prison Chaplain identifies the Defendant is an active member of the Christian community in prison. He has got to know the Defendant as a deeply principled and dedicated young man, profoundly thoughtful and with a strong ability for critical self-reflection. The Prison Chaplain says that it is due to his deep respect for the Defendant’s selfless passion and a strong sense of justice, and due to his appreciation for the Defendant’s personality, that he is willing to write a mitigating letter.
(3)  A Pastor from his childhood describes the Defendant as demonstrating a good understanding in faith and a keen heart for Christ, whose outreach activities have shaped the person who cares about society and needy people and who dares to live out what is taught in the Bible, which he believes in his heart.
(4)  An Open University Lecturer described what might seem to be a trivial matter, but said that the incident had made an impression on him that the Defendant is responsible and considerate to others.

74. The Defendant asked for some leniency in deciding the penalty.

75. I have taken these matters into account when I imposed the penalty.

G. Mitigation

76. In his balanced and well-judged plea in mitigation, Mr Wong drew my attention to specific matters on behalf of the Defendant. Though I did not lose sight of the further detail in the submissions, the points might be summarised as follows:

(1)  The Defendant now fully understand the extent of the harm caused, especially upon reading the measures that the police officer and his family had to take in order to avoid further harassment and to protect the daughters.
(2)  The Defendant is horrified by the extent and nature of the comments in the LIHKG Thread, though he was unaware of them at the time.
(3)  The Defendant unreservedly apologises for his part in the incident, and does not hesitate to condemn such comments and any form of bullying of the daughters.
(4)  He also deeply regrets not apologising sooner, when an apology then could have had much greater effect of diffusing the tense social climate.
(5)  The Defendant’s apology, remorse and regret are genuine, and are consistent with his character as painted by the mitigation letters provided to the Court.
(6)  The Defendant’s intentions have been to address social injustice, even if his methods for doing so have sometimes been misguided.
(7)  The last few years have been a valuable lesson for the Defendant that the ends do not justify the means.
(8)  The Defendant’s time in custody has been well-used in self-reflection and education.
(9)  The offending Post occurred “out of momentary misjudgment”, and whilst the Defendant did have the instinct to reveal the identity of the police officer, he failed to realise the severe consequences as might or did follow (where the malevolence directed against the officer’s daughters is inconsistent with the Defendant’s character).
(10)  The Post was removed within 48 hours, on the Defendant’s own action (and not prompted by others).
(11)  Whilst the necessary apology should have come sooner, since November 2020 the Defendant has effectively been imprisoned, and a considerable time has since passed.
(12)  Whilst the delay in bringing these proceedings has not prejudiced the Defendant’s ability to respond, and the starting point for the penalty is still imprisonment measured in months, followed by appropriate reductions taking into account the circumstances and genuine remorse, the material delay has undermined the utility of these proceedings, which is an additional factor that can be considered (including as to the costs order to be made).

77. I also took these various matters into account when I imposed the penalty.

H. Appropriate Penalty

78. The starting point is, as usual, that it is fundamental to the rule of law that court orders are to be obeyed. Court orders are not guidelines, and the requirement to obey court orders does not depend varying on one’s political or personal views, or state of emotion.

79. The Defendant was a public figure who had, knew he had, and intended to have, a significant public following and consequent influence. The Post was in the form of an open letter written to another similar public figure. It had a link to a known doxxing site or channel. If a person has a large social media following, the harm caused by the posting of materials may be greater. The numbers in this case show that. Hence, as has been previously stated, that a person has a large social media following identifies that the person wielding the extent of potential influence needs to have greater guard against the inherent dangers of posting information.

80. The Defendant has sought to emphasise that he had no intention to generate the kind of remarks and comments in the LIHKG Thread, which advocated violence including sexual violence. But, the Court’s role is not to punish someone for having forgotten about or failed to form a specific intention about the logical consequences of their actions. The Court’s punishment is imposed to deal with the failure to have thought through the consequences of the chosen actions before the actions were performed.

81. Indeed, the Defendant must have had some intention when he made the Post, and it would have been naive in the extreme in the then climate to have assumed that the Post would not provoke or generate or be linked to at least unhelpful and inappropriate comments. To put it bluntly, making the Post was only more likely to raise the temperature and inflame the situation than calm it. This is to an extent now recognised by the Defendant when he acknowledges that once the Post was made, even though it was relatively swiftly taken down, the damage was done.

82. Indeed, not to have been aware of the content of the immediately linked item does not seem to me to be a significant point of mitigation. As has been often previously pointed out, the very problem with the use of social media is that persons post or forward materials without thinking of, or simply not caring about, the potential and often likely consequences. It is because it is easy to post something on social media or the internet with just a few clicks or keystrokes that people should stop to think about the consequences of their actions, where the effects may be wide and last a long time. It is not very impressive or very persuasive to state that harm was not actually intended when it is the likely and logical consequence of the action.

83. The very nature of the internet and social media facilitates, and the very point of doxxing activities is, to put private personal data into the public domain, and precisely to facilitate or to encourage the kinds of interference and harassment as have typically followed, including in this case. This is the “ripple effect” to which I have previously made reference in other judgments.

84. I specifically take into account that, once these proceedings were started, the Defendant quickly identified that he would admit liability, and that he would apologise both for the original contempt and for the failure to have apologised earlier for the original contempt.

85. I also take into account that, as it seems to me on the evidence, there has been a significant shift in the mind-set of the Defendant since 2020. Though I am not persuaded that the Defendant would necessarily have taken his current stance had these proceedings been commenced in, say, the third quarter of 2020, I accept that the Defendant now recognises that his stance and methods for pursuing his stated aims were not appropriate.

86. However, the particular Post and the consequences of it seemed to me to be amongst the most serious of those that have been brought back before the Court as a breach of the Police Doxxing Injunction, taking into account the Defendant’s personal standing and circumstances. But for the belated recognition and apologies now offered to the Officer and to the Court, I would have been minded to impose a longer period of immediate imprisonment as the appropriate penalty. But, taking into account those matters, as well as the passing of time, and the various mitigating factors which I have set out above, it seemed to me that in the exercise of my discretion an immediate custodial sentence of three months was the appropriate and proportionate sentence to impose by way of penalty for the admitted contempt.

87. As to costs, I acknowledge that the usual order in a successful committal procedure is for costs to follow the event and to be payable by the person found guilty of contempt on an indemnity basis. Nevertheless, as has been pointed out in other cases, in appropriate cases it may be correct to order payment of a contribution only, rather than a full indemnity, to reflect the appropriate degree of proportionality when the penalty and costs can be regarded as composite elements of the proceedings’ impact on a defendant. Each case will be determined on its own particular facts and circumstances. I accept that there is no presumption of indemnity costs in contempt proceedings.

88. In this case, the SJ seeks costs order against the defendant, payable on the indemnity basis, by reference to a Statement of Costs for Summary Assessment which seeks the total sum of $227,655.

89. Mr Wong suggests that a contribution towards costs would be appropriate. On the half of the Defendant he accepts that the time spent with ‘client’ should be fully recovered against the Defendant, in the cost of around $15,000. But taking into account the other factors mentioned above, including that the delay has undermined the utility of these proceedings, he invites an appropriate costs order which does allow the Defendant to draw a line beneath previous events.

90. In all the circumstances, it seems to me that the appropriate costs order to make is by way of a contribution in the sum of $50,000.

(Russell Coleman)
Judge of the Court of First Instance
High Court

Mr Martin Ho, instructed by Department of Justice, for the plaintiff

Mr Albert NB Wong, instructed by Ho Tse Wai & Partners, for the defendant

HCMP 585/2022

[2022] HKCFI 3522

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 585 OF 2022

________________________

	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 1957/2019
	and
	IN THE MATTER OF criminal proceedings in WKCC1553/2020

________________________

BETWEEN
	SECRETARY FOR JUSTICE	Applicant
	and
	WONG CHI FUNG (黃之鋒)	Putative Respondent

________________________

AND

HCMP 586/2022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 586 OF 2022

________________________

	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 1957/2019
	and
	IN THE MATTER OF criminal proceedings in WKCC1553/2020

________________________

BETWEEN
	SECRETARY FOR JUSTICE	Applicant
	and
	TSANG CHI SING (曾子成)	Putative Respondent

________________________

HCMP 587/2022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 587 OF 2022

________________________

	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 1957/2019
	and
	IN THE MATTER OF criminal proceedings in WKCC1553/2020

________________________

BETWEEN
	SECRETARY FOR JUSTICE	Applicant
	and
	LEE PAK NAP (李柏納)	Putative Respondent

________________________

HCMP 664/2022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 664 OF 2022

________________________

	IN THE MATTER OF an application by the Secretary for Justice for leave to apply for an Order of Committal pursuant to Order 52 rule 2 of the Rules of the High Court, Cap. 4A
	and
	IN THE MATTER OF civil proceedings in HCA 1957/2019

________________________

BETWEEN
	SECRETARY FOR JUSTICE	Applicant
	and
	WONG KWOK LEUNG (王國樑)	Putative Respondent

________________________

(Heard together)

Before: Hon Coleman J in Court

Date of Hearing: 21 November 2022

Date of Decision: 24 November 2022

_________________

D E C I S I O N

_________________

A. Introduction

1. At some point, a line needs to be drawn under past events. However, when and where to draw the line is not always straightforward.

2. Each of these four actions involves an ex parte application made by the Secretary for Justice (“SJ”) for leave to apply for committal against each of the putative respondents for their alleged contempt of court.

3. Ordinarily, such applications would be dealt with on paper. However, for reasons which I will set out below – primarily relating to the timing of the applications by reference to the events constituting the alleged contempt – I was not prepared to grant leave on paper, and instead directed the applications to be made together at an oral hearing.

4. That oral hearing was fixed for 21 November 2022, when Mr Martin Ho of Counsel appeared for the SJ. At the end of the hearing, I reserved my decision to be handed down later.

5. This is my Decision.

B. Relevant Background

6. All four applications relate to alleged breaches of an injunction order granted by Chow J (as Chow JA then was) on 25 October 2019, as amended on 28 and 31 October 2019, as continued and varied by me on 8 November 2019 and amended on 11 December 2019 (“Police Doxxing Injunction”), made in an underlying civil action HCA 1957/2019.

7. Three of the four actions also relate to alleged breaches of an anonymity order granted by the Principal Magistrate on 2 June 2020 (“Anonymity Order”), made in underlying criminal proceedings WKCC 1553/2020. The Anonymity Order was made to protect the interests of the public and a police officer (“PW1”) and his wife and two daughters, and it prohibited all persons from publishing or reporting any matters that may lead the public to identify PW1, his wife and two daughters. PW1 had been involved in an incident on 11 November 2019, when police were dispersing protesters causing serious traffic disruption in the Sai Wan Ho area. PW1 fired three live rounds, with one shot hitting a masked protester (“Sai Wan Ho Incident”).

8. The allegations of contempt in the four actions are in broad summary as follows:

(1)  HCAL 585/2022:
(a)  The putative respondent is Wong Chi Fung (Joshua Wong).
(b)  During a cyber patrol by the Police on 16 August 2020, a post (“Post”) was found, which disclosed PW1’s full Chinese name and led the general public to be able to identify him as the officer involved in the Sai Wan Ho Incident.
(c)  The Post attached a LIHKG Thread that disclosed four photos of PW1, his spouse and family members (namely his two daughters). One of the photos was a digitally edited photo of PW1 of his two daughters with knives on each of them and the caption “我地老豆係殺人犯:)” (English translation: “Our father is a murderer”).
(d)  The LIHKG Thread also contained a pinned message that identified PW1, with embedded links to webpages containing personal information of PW1, his spouse and his family members.
(e)  One link was to ‘Hong Kong Chronicles’ (a prominent Police doxxing website) “profile” of PW1, which itself disclosed various personal data of PW1, his spouse and family members, as well as the reference to the criminal proceedings in WKCC 1533/2020, in which the Anonymity Order was made.
(f)  On 17 August 2020, a news article reported that the putative respondent had disclosed PW1’s personal data on his Facebook page in breach of the Anonymity Order and the Police Doxxing Injunction.
(g)  Upon Police’s checking on 17 August 2020 at around 11am, the Post was found to have been deleted.
(h)  Notwithstanding being relatively short lived, the Post attracted wide attention with 4,900 counts of reaction, 186 comments and 376 shares.
(i)  Further, the LIHKG Thread attached to the Post was also commented by 2,054 members. Specifically, it was observed that there were several comments inciting others to sexually harass PW1’s two daughters.
(j)  The Police had identified the putative respondent as the maker of the Post by 17 August 2020.
(2)  HCAL 586/2022:
(a)  The putative respondent is Tsang Chi Sing.
(b)  During a cyber patrol by the Police on 17 June 2020, three posts (together “Posts”) were found, which appeared to be in breach of the Anonymity Order and the Police Doxxing Injunction.
(c)  Post 1 published at 18:55 on 2 June 2020 was captioned “仆街冚家剷死全家！” (English translation: “bastard, the one whose whole family died, your family will all die”) sharing a cropped image of a news article concerning PW1, the title of which in effect identified him and the location of his two daughters’ school.
(d)  Post 2 published at 20:59 on 2 June 2020 was captioned “唔比開名？” (English translation: “not allowed to disclose name?”), with three images showing: (i) PW1 plus his Chinese name; (ii) a document concerning the internal affairs of PW1’s daughters’ school and displaying a photo of PW1 and his personal information; and (iii) a digitally edited photo of PW1 and his two daughters who are each holding a knife with the words describing their father as a murderer.
(e)  Post 3 published at 08:06 on 3 June 2020 was captioned “晨早流流，同條仆街冚家剷打聲招呼先！條仆街冚家剷啲電話電郵地址會唔會已經改Ｘ哂呢……橫掂佢人都可以唔做而改做禽獸，真係改乜都得啦！” (English translation: “it is early in the morning, let me greet the bastard, the one whose whole family die. [I wonder] whether the telephone [number(s)] and email address(es) of the bastard, the one whose whole family die, have all been fxxking changed … anyway, if you can change to be a beast instead of human being, he can change whatever he wants!”.
(f)  There was also an earlier Facebook post making reference to a news article clearly reporting that the Court had made the Anonymity Order.
(g)  The putative respondent was arrested on 24 June 2020 for the offence of “Contempt of Court”.
(h)  Later the same day, 24 June 2020, the putative respondent was interviewed by Police under caution, and he admitted (amongst other things) that: (i) he was the one who made the Posts; (ii) he thought the Anonymity Order was unreasonable and he made the Posts out of grievance towards it; (iii) he published information in relation to PW1 with his mobile phone on 2 and 3 June 2020; (iv) the personal data and photos of PWI and that he published in the Posts were obtained from a Google search; (v) he had knowledge from news reports of both the Anonymity Order and the Police Doxxing Injunction.
(i)  On 22 July 2020, the DOJ wrote to the putative respondent, pointing out that the Post were on their face in breach of the Anonymity Order and the Police Doxxing Order, and requesting removal of the Post within three days and documentary proof to confirm it.
(j)  On 8 August 2020, the putative respondent wrote to the DOJ stating that he had deleted the Facebook account in early July, and he subsequently wrote on 10 August 2020 to confirm that the account was scheduled to be deleted permanently.
(3)  HCAL 587/2022:
(a)  The putative respondent is Lee Pak Nap (Bernard Lee).
(b)  During a cyber patrol by the Police on 17 June 2020, a post (“Post”) was found published at 19:43 on 2 June 2020 captioned (in English translation) “no one knows your name is [PW1’s full Chinese name]”. The Post also shared a news article referencing the grant of the Anonymity Order.
(c)  The putative respondent was arrested on 24 June 2020 for the offence of “Contempt of Court”.
(d)  Later on the same day, 24 June 2020, the putative respondent was interviewed under caution and admitted (amongst other things) that: (i) he was the sole user of the relevant Facebook account and the only person you the login password; (ii) he forwarded the news report from website of the paper to his Facebook page, with his mobile phone and added the caption; (iii) he did so with the intention to remind the public of the Sai Wan Ho Incident; and (iv) he understood from the title of the news report that PW1 was granted the Anonymity Order when he made the Post.
(4)  HCAL 664/2022:
(a)  The putative respondent is Wong Kwok Leung (Eric Wong).
(b)  A doxxing post (“Post”) was found published on Facebook at 12:41 on 11 November 2019, which stated “唔好傳！千祈唔好傳！” (English translation: “Do not spread around! Definitely do not spread around!”) and which disclosed the personal data of: (i) the full name of PW1 in Chinese characters, his force number, residential address and link to his personal Facebook profile; (ii) the mobile number of PW1’s wife; and (iii) the name, mobile number, Instagram account, school, class of PW1’s elder daughter and a link to her Facebook profile.
(c)  Subsequent investigation identified the Posters having been posted on the putative respondent’s Facebook page.
(d)  The putative respondent was arrested on 9 January 2020 for the offence of “disclosing personal data without consent from data users”.
(e)  Later on the same day, 9 January 2020, the putative respondent was interviewed under caution and admitted (amongst other things) that: (i) he was the only user of the Facebook account “Eric Wong” and the only person who knew its password; (ii) upon being shown the Post, he said he forgot whether or not he had posted it; (iii) upon being shown the Police Doxxing Order, he said he understood it.
(f)  Further forensic examination found six other photos of PWI and his two daughters in the photo album in the putative respondent’s phone, created at about 14:29 on 11 November 2019.

9. From the above, it can be seen that the Police had concluded the bulk, if not the entirety, of the relevant investigations as revealed the facts now relied upon in support of the current applications:

(1)  in HCAL 585/2022, by 17 August 2020;
(2)  in HCAL 586/2022, by 22 July 2020;
(3)  in HCAL 587/2022, by 24 June 2020; and
(4)  in HCAL 664/2022, by 9 January 2020.

10. As is obvious from the action numbers, three of the four applications are numbered consecutively – HCAL 585/2022, HCAL 586/2022 and HCAL 587/2022 – with all three of them having been dated 11 May 2022 but issued on 13 May 2022. The fourth action – HCAL 664/2022 – was issued on 25 May 2022. Therefore, the time from the above dates when the facts now relied upon had probably been established until the making of the ex parte application seeking leave to apply for committal is:

(1)  in HCAL 585/2022, approximately 20 months;
(2)  in HCAL 586/2022, approximately 21 months;
(3)  in HCAL 587/2022, approximately 22 months; and
(4)  in HCAL 664/2022, approximately 28 months.

11. It may also be relevant to note that in three prior decisions given by me on 18 January 2022 [2022] HKCFI 227, 14 April 2022 [2022] HKCFI 1015 and 27 April 2022 [2022] HKCFI 191, I expressed and repeated real concerns about the long periods of delay in bringing the relevant breaches of Court orders to the attention of the Court in the delayed making of applications for committal for contempt of court.

12. It can be noted that three of the ex parte applications in the current proceedings were all suddenly made within about two weeks, and the fourth within one month, of that last decision and expression of concern.

C. Principles on Grant of Leave

13. The leave requirement operates as a filtering mechanism, to filter out intended committal applications which are obviously unfounded or oppressive. When disposing of a leave application, the Court retains an overall discretion in deciding whether or not a committal application is appropriate on the facts of the case. This is not least because, in view of the potential penal consequences, committal proceedings should only be deployed as a last resort: see, for example, SJ v Cheung Kai Yin (No.2) [2016] 5 HKLRD 370 at §§12-13

14. The question arises as to how any delay in bringing intended committal proceedings factors, if at all, into the decision whether or not to grant leave.

15. Mr Ho acknowledged the remarks made by me in the previous cases, to which I have already made reference above. For example, in SJ v Sung Ho Tak Edward[2022] HKCFI 227, at §§ 27-30, I said:

27.  I recognise that some time might be needed, and that there may have been some manpower and resources issues. However, by late November 2019, the investigating authorities were in possession of all relevant information identifying the contempt of the Incitement Injunction, the very making of which was predicated on the need urgently to prevent further or continuing incitement of violence online. Indeed, it is the SJ’s case at this hearing – which I accept – that there is a correlation between the calls for violence and vandalism made online and the subsequent acts of violence and vandalism which ensued. Within three months or so after the now admitted breach, the investigating authorities were able to decide not to pursue the matter further, at least in the criminal courts. I am afraid I still do not understand why it would take so much longer to decide whether or not to pursue committal proceedings, and if so to make the application. Where the breach of the Incitement Injunction is rightly said to be a serious matter, it is more than just disappointing that the breach was not sought to be brought back to this Court until almost 2 years after the date of the breach.
28.  By nearly 2 years after the date of the breach, committed in the midst of the deep social unrest, that social unrest had largely calmed down. Of course, I do not say that it is improper to bring these contempt proceedings (or else I would not have granted leave). But it might be said that pursuing the contempt so long after the event, well after the fraught social situation at the time of the Incitement Injunction has calmed down, risks unhelpfully raking over the embers.
29.  Further, I think the Court is entitled to expect actions which are said to be clear breaches of Court orders to be brought to the attention of the Court within a fairly short time, if the matter is to be pursued at all. Court orders are not advisory; they mandate what must be done or not done. In a case such as the present, the Court itself is unlikely to be aware of any specific details of breaches of the Court’s order. The Court relies on one of the parties to the proceedings – here the SJ, who sought and obtained the injunction – to bring the matter to the attention of the Court timeously, so that the Court is in a position to enforce its order through contempt proceedings and orders for committal if necessary.
30.  Significant delay is almost bound to frustrate the Court’s ability properly to police its own orders. The value of late steps may well be less than the value of steps taken timeously. Enforcement steps which are considered to be necessary, appropriate and proportionate if taken within weeks or months of the breach of the order may no longer be considered either necessary or appropriate or proportionate if only pursued years later.

16. I stand by the points I made in that context, and which are at least potentially applicable to the present situation.

17. But Mr Ho also pointed to Note 52/2/5 in the Hong Kong Civil Procedure 2023, which states:

Delay – There is no time limit for the application for leave to be made but it should be made promptly (see Taylor v Ribby Hall Leisure Ltd [1998] 1 WLR 400, CA, esp. at 410). An unjustifiable or oppressive delay may have an impact on the leave application (Secretary for Justice v Siew Yun Long (HCA MP 2917/2015, 6 May 2016) at para. 18, per Chow J.) The respondent may take a delay point on an inter partes application under O.32, r.6 (see above) or an application under the inherent jurisdiction to strike out the contempt proceedings as an abuse of the process (as in Taylor v Ribby Hall Leisure Ltd (above)). But in general it is preferable to deal with the point at the substantive hearing (ibid.).

18. Mr Ho submitted that two matters arise from that passage:

(1) First, in order for the Court to strike out a committal proceeding on the ground of delay, it must be shown that the continued prosecution of the application would constitute an abuse of process, namely that it is no longer possible to have a fair trial because of unjustifiable delay in the commencement of contempt proceedings: referring to the Taylor case at 408A-G.
(2) Second, given the fact-sensitive nature of the inquiry in determining whether there is an abuse of process and/or whether a fair trial is still possible, the appropriate occasion to determine the relevance and significance of delay should be at the substantive hearing (at which the Court can hear from the putative respondents as to their stance and any evidence put forward).

19. The passage in Taylor at 408 seems to me to identify that the overriding power of the Court should be used to protect the integrity of its own processes. Obviously, it is an important part of the protection of the integrity of its process that those in contempt of court by breaching court orders should be held to account. But another part of the protection of the integrity of the process is to protect against the use of the process in a way which is unfair to a party to the proceedings.

20. I accept that the inability to have a fair trial because of unjustifiable delay may, in exceptional circumstances, be one situation where the power to stop the case would be exercised. It may even be correct to say that the power would be very sparingly exercised. But it is not the only situation when the power might or would be exercised.

21. In my view, if the Court takes the view that its process is being used in a way which threatens its integrity, the Court is entitled to take steps to protect that integrity – and those steps are not limited only to the situation where a fair trial is no longer possible. The Courts are the guardian of proper process. The Courts are independent, must continue to be independent, and must continue to be seen as independent.

22. In this context, reference can also be made to the case of Tiong King Sing v Sam Boon Peng Yee (No.2) [2015] 3 HKLRD 99 at §§6 and 19, which emphasised that the filtering process on the grant or refusal of leave can arise when there is either (a) oppression or (b) suspicion of oppression. It is to be noted that the suspicion of oppression may suffice for the refusal of leave to apply for committal. For example, though the phrase was also repeated at §19, at §6 the Court stated (quotation in original):

The ex parte stage is a filtering process which filters out oppressive applications, or applications which have “some suspicion of oppression”, or those which obviously have no chance of success.

23. Further, in Hwang Joon Sang v Golden Electronics Inc (No.3) [2021] HKLRD 301, at §11(5)(b), I noted that a significant period of delay in bringing proceedings for contempt may make it oppressive to grant leave.

D. Reason for Delay

24. In his written submissions, Mr Ho remarked that “the SJ acknowledges that these intended committal applications could have been brought earlier”. I suspect that many people would think the words “could have been brought earlier” to be a striking euphemism.

25. Further, it was obvious that the Court’s concern giving rise to refusal to deal with these applications on paper, and instead calling for an oral hearing, related to the question of delay. As a result, Mr Ho used more than half of his 16-page skeleton submissions to address the impact of delay.

26. Notwithstanding that, the submissions were essentially by reference to legal authorities – and to the suggestion that the Court should accord appropriate recognition and weight to the SJ’s views and assessment on the societal need for deterrence (a point to which I will return).

27. However, the only factual matter dealt with as might in any way be thought as an offered explanation for the significant delay is to be found in a footnote to the euphemistic acknowledgement (see above). That footnote merely reads as follows:

The Court would also appreciate the sheer number of matters DOJ had to attend to in the past 2 years. Unfortunate as it may be, we wish to re-assure the Court that only the individual merits of each committal application were taken into account in deciding to launch these applications for leave for committal.

28. As a factual explanation for the significant delay, it is at best underwhelming. The first sentence in essence says merely that the DOJ has been busy, but it does not provide any relevant detail nor attempt to explain why it took approaching two years to bring forward even any one of the individual four cases now being considered. The second sentence does not explain the delay at all.

29. What the second sentence instead appears designed to achieve is to ‘head off’ some other potential concern. I raised one such concern ‘head on’ with Mr Ho at the hearing, namely any perception that these potential committal proceedings might have been ‘sat on’ – or even ‘warehoused’ – ready to be brought forward later, if at some time it was thought appropriate to bring proceedings against the particular individuals concerned. The answer to such a concern is not to be found in a statement that only the merits were taken into account in deciding to launch the committal proceedings, as that simply does not address why those merits did not lead to the much earlier launch of the committal proceedings. It seems to me that once sufficient merit has been identified, the proceedings should be launched – without delay.

30. Indeed, the more Mr Ho sought to emphasise his main points as to why, notwithstanding the significant delay, leave for committal proceedings should be granted, the more the possible perception and consequent concern seemed to be highlighted.

31. Mr Ho first submitted that the individual merits of each intended application are strong, if not overwhelming. Elsewhere in his written submissions, Mr Ho submitted that there is “overwhelming evidence against the putative respondents (some of which having openly acknowledged that they are intentionally flouting court orders)”. But, assuming that is the SJ’s view, it might be asked why such strong applications were not brought to the Court with reasonable speed. It is the SJ’s case that this was clear, deliberate and intentional flouting of the court orders. Indeed, at least some of the putative respondents to these four applications are known individuals who sought to carry significant influence in their expressions of views, and who sought to create a tide of opinion. It might be thought that the DOJ’s resources would obviously be directed at bringing such strong applications to the fore, rather than focusing on applications relating to others who were swept up in that tide.

32. Mr Ho also submitted that the SJ, in his capacity as the protector of public interest, is of the clear view that there remains a strong public interest in pursuing these committal applications and to send a clear deterrent signal to society. But surely the most important time for sending any such clear message was much closer to the events for which a deterrent signal was required, and for which it might be most effective.

33. Mr Ho also submitted that contempt of civil court orders is a serious matter, where the consideration of the normal penalty for breaches of the Police Doxxing Injunction is imprisonment, perhaps measured in months. He submitted that refusing to grant leave notwithstanding that there is a prima facie case may send the wrong message to the public that such conduct can be condoned without legal consequence, and is unfair. But, on the other hand, it seems to me that the SJ’s failure to seek, or significant delay in seeking, leave notwithstanding that there is a prima facie case – indeed, it is said an overwhelming case – may send the wrong message to the public.

34. Mr Ho also submitted that the Court should adopt a consistent approach in dealing with delay, referring to the previous cases in which the matter of delay was reflected in sentencing (rather than being used as a basis for the Court to exercise its discretion to refuse leave). I see the force in the need for consistency in approach, but the submission risks overlooking the fact that time has continued to move on, and that at some point a line needs to be drawn.

35. Mr Ho also submitted that, while the delay is unfortunate, the applications cannot be regarded as “oppressive” to the putative respondents. He said that the applications hardly constitute an abuse of the Court process, and there is no suggestion that any of the putative respondents are hampered in their efforts to defend these proceedings by reason of the lapse of time. But, it seems to me that if applications are not brought forward with appropriate expedition, that might constitute an abuse. Further, it is at this stage simply unknown whether any of the putative respondents are hampered in their efforts to defend these proceedings by reason of the lapse of time. In any event, even if there is no hampering in the sense of being unable to obtain relevant materials and so forth, that does not necessarily mean that there is no oppression which arises from the timing.

36. The significant delay in these cases is also exacerbated by the fact that it is generally recognised that committal proceedings in the civil justice system require less extensive preparation, and are less protracted than, proceedings in the criminal justice system. That is why applications for committal can reasonably be expected to be, and should be, issued promptly after the alleged breach, and the cases listed without delay: see, for example, Lomas v Parle [2004] 1 WLR 1642 at §49; and the Taylor case at 410.

37. I am also not persuaded that the Courts are in any significantly weaker position than the SJ to assess various facets of the public interest. I acknowledge, of course, that the SJ is acting in his capacity as the guardian of the public interest in both seeking the underlying injunctive relief and pursuing committal applications against contempt laws who have breached the injunction is granted. But the injunctions were granted, and any penalties are imposed on contemnors, by the Courts’ recognition of and application of those facets of the public interest relevant to the situation.

E. Result

38. In the light of the significant and almost wholly unexplained delay, I have carefully considered whether this is an occasion when leave to apply for committal should be refused. The concerns arising from the delay, and any perception also arising, are real. But, ultimately, I am persuaded that leave should be granted.

39. I accept that on the materials so far available to the Court, it could not be said that there is no prospect of the Court granting relief to the SJ at the substantive hearing. Nor could it be said that the delay itself will necessarily cause such prejudice to the putative respondents as should lead the Court to exercise its power to refuse leave for committal. The proper impact of the delay in these individual cases can, I think, be addressed appropriately on the substantive hearing.

40. I also take into account that the alleged breaches in these four applications, if admitted or proved, can properly be regarded as serious, and well within the category of breaches that the Courts would wish to ensure do not go unnoticed.

41. In conclusion, I grant leave to apply for committal in each of the four cases, and the accompanying directions including the anonymity orders sought.

42. All questions of costs are reserved.

43. I would only add that the grant of leave in these cases is not intended to suggest that leave would certainly be granted in other cases where there has been significant delay, or be taken to suggest that the time has not come for the line to be drawn.

(Russell Coleman)
Judge of the Court of First Instance
High Court

Mr Martin Ho, instructed by the Department of Justice, for the applicants in all cases

SECRETARY FOR JUSTICE v. WONG CHI FUNG

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