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Secretary For Justice v Yiu Ka Yu

Judgment Cited authorities 3 Cited in 1 Precedent Map Related
Vincent
Judgment Date29 December 2020
Neutral Citation[2020] HKCFI 3148
Judgement NumberHCMP1068/2020
Subject MatterMiscellaneous Proceedings
CourtCourt of First Instance (Hong Kong)
HCMP1068/2020 SECRETARY FOR JUSTICE v. YIU KA YU

HCMP 1068/2020

[2020] HKCFI 3148

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1068 OF 2020

________________________

IN THE MATTER of an application on behalf of the Secretary for Justice against Yiu Ka Yu (姚家瑜) for an Order of Committal

and
IN THE MATTER of civil proceedings in HCA 1957/2019

________________________

BETWEEN
SECRETARY FOR JUSTICE Plaintiff

and
YIU KA YU (姚家瑜) Defendant

________________

Before: Hon Coleman J in Court

Date of Hearing: 29 December 2020

Date of Decision: 29 December 2020

______________

D E C I S I O N

______________

A. Introduction

1. These committal proceedings relate to a civil contempt of court, for which the Defendant has admitted liability. Therefore, this is the mitigation and sentencing hearing.

2. The contempt arose on 11 November 2019, when the Defendant posted on a Telegram chat group (“TG Post”) the personal data of a particular police constable (“PW1”) and that of his wife. That conduct was in clear contravention of the injunction order made on 25 October 2019, as amended and re-amended on 28 and 31 October 2019, subsequently continued (though slightly varied) by me on 8 November 2019 (together “Doxxing Injunction”). The Doxxing Injunction was made in HCA 1957/2019 (“underlying action”).

3. The act constituting the contempt on 11 November 2019 was just two or three days after the continuation of the Doxxing Injunction Order on 8 November 2019, and the significant and widespread publicity that followed it.

4. The TG Post included a purported “warning” to readers not to re-post the data mentioned in the TG Post, and a reported “request” to readers not to forward it to third parties, and to have some mercy on the victim (ie. PW1). At the same time, the TG Post highlighted PW1’s residential address as being “important”. It is clear that the purported warning and request were the very opposite of what was intended (as the Defendant now accepts). In so far as anyone might think that stating matters in that way would shield them from legal responsibility for their wrongful acts, that is fundamentally misconceived.

5. The committal proceedings have been brought by the Secretary for Justice (“SJ”) by way of originating summons dated 7 August 2020, with prior leave granted by me on 31 July 2020. In support of the application, reliance is placed on the affirmation of PW1, as well as the affirmations/affidavits of other officers (PW2, PW3 and PW4) involved in investigating the TG Post.

6. The Defendant has herself filed an affirmation dated 30 November 2020, to which she has also exhibited her handwritten apology letter to the Court, and various mitigation letters from other persons. Earlier, on 28 August 2020, the Defendant (then acting in person) had filed her acknowledgement of service of the originating summons, in which she stated she did not intend to contest the proceedings.

7. At this hearing, the Secretary for Justice was represented by Counsel, Mr Martin Ho, and the Defendant was represented by Counsel, Mr Richard Yip.

B. Agreed Facts

8. On 7 December 2020, the parties (through their solicitors) jointly signed and filed a Statement of Admitted Facts. That document helpfully encapsulates the relevant background material, and in particular the material facts relied upon by the SJ in these committal proceedings that are not disputed by the Defendant. Some of its content can usefully be taken into this Decision. I accept those facts as stated and agreed between the parties.

9. I attach as Annex 1 to this Decision the history of the making of the Doxxing Injunction in the underlying action. The acts comprising the contempt in this case took place after the matters detailed in §§1-10 of Annex 1.

10. On the morning of 11 November 2019, PW1 used his firearm during a public order event in Sai Wan Ho to fire three rounds, one of which hit and injured a 21-year old male.

11. Since then, PW1 and his family have been subjected to widespread doxxing on social media platforms, such as Facebook, LIHKG (連登) and Telegram.

12. Upon investigation, Police identified a Telegram chat group named “SUCK 公海” (English translation: “high seas”) (web link: https://t.me/stuckwithyouopen) (“TG Chat Group”). Created in September 2019, the TG Chat Group is a public chat group which can be joined by any Telegram user. Anyone who has joined the TG Chat Group can read the messages in it, post messages, and share/forward messages. Members have been posting miscellaneous messages relating to protests against the introduction of the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019, including relevant court news, public order events (such as road/traffic blockage), as well as derogatory messages against the Police. As at 7 April 2020, there were 48,449 members who joined the TG Chat Group. As at the date of the TG Post, it may have been over 51,000.

13. Police investigation revealed that shortly after the firing incident in Sai Wan Ho in the morning of 11 November 2019, members of the TG Chat Group had been actively posting messages about the incident.

14. Furthermore, personal data of PW1 (including his name, residential address and photo) and those of his family (namely, his wife and his daughters) had since been widely disseminated in the TG Chat Group.

15. Among the messages, following a chain of posts and discussions on the Sai Wan Ho incident, at 10:56am, a member of the TG Chat Group named “生要見人死要見屍” (English translation: “Wanted, dead or alive”) (“TG Account”) published the residential address of “the Police Officer who just fired live ammunition” and the mobile phone number of “his wife” (“PW1’s Personal Data”) in a post (being the TG Post):

“我警告你地，唔好再post以下既資料，係剛剛開真槍個位正義警察叔叔既，同埋佢屋企人既。

最緊要

[地址]

佢老婆電話：[手提電話號碼] 呢個都唔可以再傳啦，拜託高抬貴手”

(English translation:

“I warn you. Never post the following data ever again. It’s about that righteous uncle policeman who has just fired live rounds, and his family.

Most importantly

[PW1’s address]

and his wife’s phone number [PW1’s wife’s mobile phone number]. Please don’t forward these data again. Please have some mercy.”)

16. Reading the TG Post in context (and with particular reference to the various posts immediately before the TG Post), the personal data divulged in the TG Post belonged to PW1 and his wife (and was believed by those making and reading the post to so belong). PW1 has subsequently confirmed that the personal data in the TG Post were correct information of himself and his wife.

17. Further, while the poster apparently asked others not to post or pass on the personal data of PW1 and his wife, the fact that the poster gave the detailed residential address and specific mobile phone number in a public chat group showed that she was facilitating others to disseminate the personal data, or that she was inciting others to intimidate, molest, harass and/or pester PW1 and his wife. There were other similar posts in the TG Chat Group in the morning on 11 November 2019 and in other online platforms in October and November 2019 with a similar tone.

18. Immediately after the TG Post, many other users copied or forwarded the same in the TG Chat Group.

19. The TG Post later came to the attention of the Police and an investigation was carried out.

20. The TG Account was linked to a local mobile phone number which had been used by the Defendant in a report of a “Dispute” case as an informant in June 2015. The Defendant had been residing at a flat in an Estate in Chai Wan, Hong Kong with her mother since 2011.

21. On 26 November 2019, at about 7:10am, PW2 together with PW3 and other police officers arrived at the Defendant’s residence. PW2 knocked on the door. A female (later known to be the Defendant) answered. PW2 identified himself and showed his warrant card and a search warrant to the Defendant. He explained the content of the search warrant to the Defendant and informed the Defendant that he was investigating into a case of “Disclosing Personal Data Obtained without Consent from Data Users” under section 64 of the Personal Data (Privacy) Ordinance Cap 486 (“PDPO”). The Defendant then let PW2 and his team in for investigation.

22. At about 7:15am, PW2 arrested and cautioned the Defendant for the offence of “Disclosing Personal Data Obtained without Consent from Data Users” under section 64(2) of the PDPO. Under caution, the Defendant admitted that she had used her mobile phone to post the TG Post, but she did not know that that was against the law. This was recorded in PW2’s notebook and was signed by the Defendant.

23. At about 7:26am, PW3 searched the Defendant’s residence and found, among other things, an Apple iPhone 11 and an Apple iPhone 6S Plus. The Defendant voluntarily unlocked the two iPhones for PW3’s investigation. The Defendant further showed PW3 her Telegram account linked to the Telegram app on her iPhone 6S Plus, as well as the TG Post posted from it.

24. In a subsequent video-recorded interview conducted at the Chai Wan Police Station from 10:55am to 11:12am on 26 November 2019, the Defendant stated under caution, amongst other things, the following:

(1) the relevant mobile phone number was subscribed by her mother with SUN Mobile about 3 years before but used by the Defendant herself;

(2) the Defendant registered the TG Account with the mobile phone number;

(3) although the mobile phone service was terminated about 2 years before, the Defendant continued to link her TG Account to the mobile phone number;

(4) the Defendant obtained the personal data of PW1 and his wife from a Telegram chat group (the name of which she could not recall);

(5)...

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