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HCA 2007/2019
[2019] HKCFI 2809
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 2007 OF 2019
________________________
| BETWEEN |
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SECRETARY FOR JUSTICE |
Plaintiff |
and |
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PERSONS UNLAWFULLY AND WILFULLY
CONDUCTING THEMSELVES
IN ANY OF THE ACTS PROHIBITED
UNDER PARAGRAPH 1(a) AND (b) OF
THE INDORSEMENT OF CLAIM |
Defendants |
| and |
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THE INTERNET SOCIETY OF HONG KONG LIMITED |
Interested Party |
________________
| Before: |
Hon Coleman J in Chambers (Open to Public) |
| Date of Hearing: |
15 November 2019 |
| Date of Judgment: |
15 November 2019 |
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J U D G M E N T
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Introduction
1. On 31 October 2019, I made an interim Order (“Order”) on the ex parte application of the Secretary for Justice (“SJ”), acting in her role as the guardian of the public interest. The Order was to remain in force up to and including today, 15 November 2019 (unless otherwise varied or discharged beforehand). This is the hearing of the inter partes summons dated 4 November 2019, which seeks continuation of the interim Order until trial or further order.
2. The Order was made against defendants – in accordance with settled authority, properly described by activity, rather than by name – being “Persons unlawfully and wilfully conducting themselves in any of the acts prohibited under paragraph 1(a) and (b) of the indorsement of claim”. Those paragraphs are reflected in the same numbered paragraphs of the Order under which it was ordered that:
(1) The Defendants and each of them, whether acting by themselves, their servants or agents, or otherwise howsoever, be restrained from doing any of the following acts:
(a) Wilfully disseminating, circulating, publishing or re-publishing on any Internet-based platform or medium (including but not limited to LIHKG and Telegram) any material or information that promotes, encourages or incites the use or threat of violence, intended or likely to cause:
(i) bodily injury to any person unlawfully within Hong Kong, or
(ii) damage to any property unlawfully within Hong Kong.
(b) Assisting, causing, counselling, procuring, instigating, inciting, aiding, abetting or authorising others to commit any of the aforesaid acts and participate in any of the aforesaid acts.
3. No defendant falling within that description has appeared this morning with a view to seeking any variation or discharge of the Order, or to oppose its continuation until trial or further order.
4. However, by summons dated 11 November 2019, The Internet Society of Hong Kong Limited (“ISOC”) seeks the discharge of the Order or the variation of it in such terms as the Court may see fit.
5. Where there is no defendant seeking to contest the Order or its particular terms, it is perhaps helpful to have another party who can present an “adverse” point of view. At the very least, that will assist the Court in testing whether any Order should be continued, and if so what would be the appropriate terms.
6. Mr Victor Dawes, SC, Mr Jonathan Chang and Mr Martin Ho, instructed by the Department of Justice, appear for the plaintiff. Mr Nigel Kat, SC, Mr Benson Tsoi and Mr Simon Young, instructed by Daly & Associates, appear for the ISOC.
7. Against the extraordinary civil unrest in the last few days, it might be asked whether this was a good time for anyone to be apparently seeking to limit any step which might usefully attempt to curtail the escalating violence and vandalism. But, perhaps these are precisely the circumstances in which the Court must be most vigilant to ensure that the court process is used only appropriately, fairly and properly, and with the integrity which the law demands and the people of Hong Kong are entitled to expect.
8. This is my decision on the cross applications, which I am able to reach today with reasons because I have had the benefit of relatively full written submissions from the parties provided earlier, in addition their oral submissions made today.
Factual Background
9. The relevant factual background is well known. The unrest in Hong Kong, spoken to in the police affidavit which leads the application, is not in issue.
10. Since June 2019, a sizeable number of members of the public have resorted to the use of violence and vandalism, supposedly as a way to express dissatisfaction towards the proposed extradition amendment bill (since withdrawn), the Government, the Police, and other persons holding political or social views contrary to their own.
11. Instances of unlawful and criminal activities include, but are not limited to, very serious criminal damage to property, offences against the person, riot, and arson. This past week has only shown an escalation in such unlawful and criminal activities. That escalation is in line with previous signs of and even declared intent by violent “protestors” to escalate the degree of violence and vandalism being used.
12. I put the word “protesters” in quotation marks, lest it be thought that such unlawful and criminal activity is a legitimate form of “protest” in favour of or against any particular viewpoint. In my view, it is not. To point this out is obviously not the solution to current unrest, but to ignore this fact does no service to wider attempts which must be made to solve the current problems.
13. Nor, incidentally, do I think much of the phrase “pro-democracy activists” beloved of some members of the media, including the international media. The level of violence and destruction now on show in Hong Kong cannot properly be described as a promotion of democracy; rather, it approaches anarchy. Persons who commit such crimes are simply, and properly described as, “criminals”. Criminal activity does not cease to be criminal activity simply because the actor believes himself or herself to be acting for a particular, perhaps higher, cause.
14. As has been previously remarked, the promotion and maintenance of the rule of law is not sensibly or rationally pursued by repeated and escalating breaches of the law. Indeed, it is difficult to see how anyone could reasonably or rationally believe that extreme acts of violence and vandalism can further the cause of ensuring the continuation of the core values enshrined in Hong Kong law. Those core values, and the fundamental rights and freedoms, guaranteed by the Basic Law and the Hong Kong Bill of Rights, together connote the broad concept of quality of life and respect for others. Those core values are not protected or demonstrated by the wanton cause or risk of injury and significant property damage to others, or by inciting and encouraging persons to act in that way.
15. Concern is often expressed, rightly or wrongly, at the perceived erosion of civil and human rights in Hong Kong. Reference is made to bullets and batons, the excessive use of which by definition have no proper place in Hong Kong. But civil society – which envisages the protection and exercise of human rights by persons at the same time protecting and respecting the rights of others – will not be maintained, and is certainly not built, by a barrage of bricks and bombs and burning barricades.
16. There is abundant evidence that the use of internet-based platforms or media, such as discussion forums and social media platforms, have played a significant role in intensifying the situation by inciting “protesters” to resort to violence. This is in part because of the anonymous and instantaneous nature in communication as well as its wide accessibility. The prevalence of the use of weapons of increasingly destructive power coincides with the widespread circulation of online posts promoting their use. The correlation between calls on the internet and other media platforms to cause damage or do injury and the subsequent acts of damage and injury is stark. If one wants to use the word “chilling”, it can be properly applied in that context.
17. It is important to record that the use of such weapons, the cause of serious bodily injury and the serious property damage is occurring to a significant number of members of the community, both individual and corporate. It is not limited to targeting police officers, though they have been the subject of some such attacks in particular. The property damage is widespread. Extreme intolerance is being shown to anyone who does not share the same view.
18. Online discussions, advocating attacks against persons including police officers, include how to inflict deadly injury by use of knives, with infographics depicting the most efficient way to cause a fatal attack or at least lasting serious injury. Since July 2019, there have been online tutorials on the production and use of petrol bombs, since which their use during events of public disorder have increased significantly. On 13 October 2019 alone, over 20 petrol bombs were thrown in quick succession at the Mongkok Police Station. This past week it seems the number thrown has far exceeded that. Online discussions on the making of explosives have also coincided with the largest seizure of explosives in Hong Kong on 20 July 2019, and the detonation of a remote-controlled bomb apparently targeting approaching police officers on 13 October 2019. Online posts also incite protesters to damage government property (including traffic lights) and also shop premises of entities perceived by the protesters as being supportive of the Government or the police or with Mainland China ties.
19. Those who physically engage in criminal acts on Hong Kong streets might be arrested on the spot, and subject to prosecution in the criminal courts...
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