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Secretary For Justice v Wong Ho Ming

Judgment Cited authorities 13 Cited in Precedent Map Related
Vincent
Judgment Date23 March 2018
Neutral Citation[2018] HKCA 173
Year2018
Judgement NumberCACV259/2017
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV259/2017 SECRETARY FOR JUSTICE v. WONG HO MING

CACV 259/2017

[2018] HKCA 173

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 259 OF 2017

(ON APPEAL FROM HCMP NO 798 OF 2015)

_______________

BETWEEN
SECRETARY FOR JUSTICE Applicant

and
WONG HO MING (黃浩銘) Respondent

_______________

Before: Hon Cheung CJHC, Lam VP and Poon JA in Court
Date of Hearing: 5 March 2018
Date of Judgment: 23 March 2018

_______________

J U D G M E N T

_______________

Hon Poon JA (giving the Judgment of the Court) :

1. By a judgment handed down on 13 October 2017, Andrew Chan J found Mr Wong Ho Ming (“Mr Wong”),[1] together with 8 other respondents, guilty of criminal contempt (“Judgment”). Mr Wong now appeals.[2]

2. The background facts leading to the proceedings below are largely not in dispute.[3] They may be summarized as follows.

A. BACKGROUND FACTS

A1. The Amended Injunction

3. As part of the so-called “Occupy Movement”, large crowds of people had since September 2014 occupied significant portions of Nathan Road between Argyle Street and Dundas Street in Mongkok, Kowloon, which prevented the general public, to various extent, from using the public roads so occupied. Also affected were those taxi operators and taxi drivers who had to rely on normal vehicular traffic at the occupied areas for their livelihood.

4. On 20 October 2014, Lai Hoi Ping (suing on his own behalf and on the behalf of all other members of Hong Kong Taxi Association) and Tam Chun Hung (suing on his own behalf and on the behalf of all other members of Taxi Drivers and Operators Association) (“the Plaintiffs”) commenced proceedings in HCA 2104/2014. They made an ex parte application on notice for an injunction against “persons occupying portions of Nathan Road near to and between Argyle Street and Dundas Street to prevent or obstruct normal vehicular traffic from passing and repassing the occupied areas” (“the 1st Defendant”). After hearing counsel, Poon J (as he then was) granted the injunction sought until the return date on 24 October 2014.

5. At the same time, some other plaintiffs commenced HCA 2086/2014 and HCA 2094/2014, which respectively concerned other areas in Mongkok and Admiralty occupied by large crowds of demonstrators. Poon J also, upon their applications, granted similar injunctions until the same return date.

6. On 24 October 2014, several named individuals applied and were allowed to be joined as additional defendants in all the three actions. All the plaintiffs applied for continuation of the ex parte injunctions and for directions for enforcement of the same. Their applications were opposed. Au J heard arguments on 24 and 27 October 2014 and then reserved judgment, while continuing the ex parte injunctions in the meantime. On 10 November 2014, the learned judge handed down judgment ordering all the ex parte injunctions to be continued (“Injunctions Judgment”). The terms of the orders were subsequently finalized after a directions hearing on 13 November 2014 and amended by a judgment dated 21 November 2014.

7. For HCA 2104/2014, the amended injunction order (“Amended Injunction Order”) provided :

“ (1) The Defendants, and each of them, whether by themselves or agent or servant or howsoever, be restrained until trial or further order of the Court, from doing, any of the following acts, namely :-

(a) Occupying portions of Nathan Road between Argyle Street and Dundas Street (“the Area”) to prevent or obstruct vehicular traffic from passing and repassing the Area (“Para 1(a)”);

(b) Erecting, building or otherwise set up tents, canopies, barriers, barricades or other structures obstacles or obstruction, or doing any other act, to prevent or obstruct vehicular traffic from passing and repassing the Area; or

(c) Obstructing or interfering with, or doing any other act which deters, the Plaintiffs through their agents properly authorised in writing from or in dismantling or removing barriers and other obstacles and obstruction in or from the Area (“Para 1(c)”) (“Para 1”).

(2) The bailiff does take all reasonable and necessary steps to assist the Plaintiffs and its agents to effect the clearance and removal of the obstructions as provided in the Injunction Order (“Para 2”).

(3) The bailiff be authorized and directed to request the assistance of the Police where necessary (“Para 3”).

(4) Any police officer be authorized to arrest and remove any person who the police officer reasonably believes or suspects to be obstructing or interfering any bailiff in carrying out his or her duties in enforcing the terms of the Injunction Order, provided that the person to be arrested has been informed of the gist of the terms of the Injunction Order and this Order and that his action is likely to constitute a breach of the Injunction Order and this Order and obstruction of the administration of justice, and that he may be arrested if he does not desist (“Para 4”).

(5) Without prejudice to the provisions of the Police Force Ordinance (Cap 232) (including S 51 and S 52 thereof), any person so arrested by the police shall be brought before the Court, under lawful or legal processes, as soon as possible for further directions (“Para 5”).”

8. The amended injunction orders granted in HCA 2086/2014 and HCA 2094/2014 were similar in terms, including Para 4, save and except, for obvious reasons, the difference in the areas covered in Para 1 of the injunction.

9. Some of the defendants in the three actions applied for leave to appeal against the injunction orders. Au J refused them all. They then applied to the Court of Appeal. Their applications were likewise all dismissed by the Court of Appeal (Cheung CJHC and Lam VP).[4] In the judgment refusing the leave application by the 2nd Defendant in HCA 2086/2014 dated 21 November 2014 (“CA Judgment”), Lam VP clarified the requirements contained in the proviso of Para 4.[5] As explained by his Lordship, “(a) informing the person concerned as to the gist of the injunction; (b) warning him that his action is likely to constitute a breach of the injunction; and (c) warning him also the possibility of his being arrested if he does not desist … are steps to be taken by the bailiff in the execution of his duty under the order and the person concerned will be given a last opportunity to comply with the order voluntarily… [These] are steps a bailiff would have to take before a case of obstruction or interference with the carrying out of his duties can be made out. Whether a police officer would like to repeat any of these steps before he exercises his power of arrest is entirely a matter for him to decide.”

10. All the legal proceedings mentioned above including all the judgments handed down and orders made were widely covered by the local media, be it paper, electronic or internet.

A2. Service of the Amended Injunction

11. On 24 November 2014, service of the Amended Injunction Order was effected on the 1st Defendant in the manner as provided for, namely, by way of advertisement in Sing Tao Daily and the Standard; and placing the same in a clear plastic envelope and attached to 11 different prominent locations at the portions of Nathan Road between Argyle Street and Dundas Street.

12. Service of the Amended Injunction Order was also widely reported in the local media.

A3. Execution of the Amended Injunction

13. Prior to 26 November 2014, it was already widely reported in the local media that the Plaintiffs and the bailiff would take action to execute the Amended Injunction Order on that day. As a matter of fact, the bailiff had on 25 November 2014 executed the injunction order granted by Au J in HCA 2086/2014 in respect of Argyle Street between the junction of Tung Choi Street and Portland Street. Such enforcement action was also widely covered in the local media.

14. On 26 November 2014, the bailiff executed the Amended Injunction Order in the manner described below.

A3.1 Preparatory steps

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

16. Around 8:05 am, the Plaintiffs’ legal representatives and lawful agents, certain bailiff officers and police officers (“the Execution Team”) gathered at Argyle Street, preparing for the execution of the Amended Injunction Order.

17. Five rounds of announcements were then made at four different locations before actual steps were taken to execute the Amended Injunction Order. The manner in which the announcements were made was similar.

A3.2 Announcements

(1) First announcements (Argyle Street junction with Nathan Road)

18. At about 8:40 am, Assistant Chief Bailiff Chiu Shuk Man (“AC Bailiff Chiu) made an announcement at the junction of Argyle Street and Nathan Road (near HSBC at No 675, Nathan Road). Through the loudhailer, AC Bailiff Chiu explained to the crowd at the scene that the bailiff officers were there to enforce the Amended Injunction Order (“the Bailiff’s First Announcement”):

“ 各位在場人士注意，我哋係司法機構執達事務組嘅執達主任。

根據高等法院案件編號2014年第2104號於2014年11月10日發出並於2014年11月21日修訂嘅禁制令，執達主任會協助原告人嘅合法代理人，清除及移走阻塞車輛在介乎亞皆老街與登打士街之間的彌敦道各部份正常交通運行嘅障礙物。請在上述範圍內嘅人士，立即收拾你哋嘅物品離開。

任何人士，如果作出任何阻礙執達主任執行職務嘅行為，將有機會觸犯藐視法庭罪，執達主任會要求警方協助作出拘捕行動。

以下時間會由原告人代表律師，宣讀禁制令嘅內容。”

The Plaintiffs’ legal representatives followed suit by making an announcement of the contents of the Amended Injunction Order through the loudhailer in the following terms (“the Plaintiffs’...

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