Secretary For Justice v Lester Shum

Judgment Date14 April 2022
Neutral Citation[2022] HKCFI 1015
Judgement NumberHCMP1158/2021
HCMP1158/2021 SECRETARY FOR JUSTICE v. LESTER SHUM

HCMP 1158/2021

[2022] HKCFI 1015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1158 OF 2021

________________________

IN THE MATTER of an application on behalf of the Secretary for Justice against Lester Shum (岑敖暉) for an Order of Committal

and

IN THE MATTER of civil proceedings in HCA No. 2007 of 2019

________________________

BETWEEN
SECRETARY FOR JUSTICE Plaintiff

and

LESTER SHUM (岑敖暉) Defendant

________________

Before: Hon Coleman J in Court

Date of Hearing: 14 April 2022

Date of Decision: 14 April 2022

_________________

D E C I S I O N

_________________

A. Introduction

1. The Defendant (“Mr Shum”) admits that he acted in contempt of court, in breaching an injunction order made by me dated 31 October 2019. This hearing is to sentence him for that contempt.

2. The contempt occurred in May 2020. It is now almost two years later. The reasons for the passage of such a long time may need to be considered, as that delay may impact the approach now taken by the Court.

3. It is common ground that the likely sentence for this contempt is one of immediate imprisonment. But, Mr Shum is already in prison – albeit not presently as the result of being convicted of a crime, but on remand pending trial on a charge under the National Security Law. Indeed, the Originating Summons in this action, dated 25 August 2021, was served on Mr Shum in Stanley Prison.

4. This sentencing hearing was originally fixed for 31 March 2022. That date was vacated on the eve of the hearing. It was vacated because Mr Shum could not be brought from prison to the Court, as a result of Covid-19 restrictions affecting the ability of the correctional services to produce him. Therefore, I re-fixed the hearing for today, 14 April 2022.

5. Mr Shum has been brought to Court for this hearing. He is represented by Mr Albert NB Wong of Counsel. The Plaintiff (“SJ”) is represented by Mr Jonathan Kwan and Mr Ivan Suen of Counsel. This hearing has been conducted with the advantage of the skeleton submissions filed by Counsel for Mr Shum and the SJ.

6. This is my Decision.

B. Injunction Order Breached

7. On 31 October 2019, the SJ, as guardian of the public interest, applied ex parte in HCA 2007/2019 for an interim injunction against persons unlawfully and wilfully conducting themselves in any of the acts prohibited of:

(1) wilfully disseminating, circulating, publishing or re-publishing on any internet-based platform or medium any material or information that promotes, encourages or incites the use or threat of violence, intended or likely to cause (i) unlawful bodily injury to any person within Hong Kong or (ii) unlawful damage to any property within Hong Kong;

(2) assisting, causing, counselling, procuring, instigating, inciting, aiding, abetting or authorising others to commit any of the aforesaid acts or participate in any of the aforesaid acts.

8. On the same date, 31 October 2019, I granted an interim injunction order in those terms (“Incitement Injunction”). The grant of the Incitement Injunction was widely reported in the mass media, including in English and Chinese newspapers with wide circulation in Hong Kong, major radio and television service providers and various sources on the internet.

9. On 4 November 2019, the SJ made an inter partes application for continuation of the Incitement Injunction. That application was heard on 15 November 2019, and I made an order continuing the Incitement Injunction in slightly amended terms (“Return Date Order”). My Judgment dated 15 November 2019 and the Return Date Order were widely reported in the local media.

10. The Incitement Injunction was served on the defendants to that action by way of substituted service, by publishing a copy of the Incitement Injunction on the web page of the Hong Kong Police Force as well as that of the Government of the Hong Kong Special Administrative Region.

C. The Breach Comprising the Contempt

11. I take the facts from the Statement of Facts used, pursuant to RHC Order 52 rule 2(2), in the application for leave to apply for an order of committal. As Mr Shum has admitted the contempt, it is those facts which delineate the breach, and it can be seen that Mr Shum’s breach of the Incitement Injunction occurred as follows.

12. On 14 May 2020, during a cyber patrol, the Police found an article with the title “周梓樂被香港警察謀殺身亡,半年” (English translation: The Murder of Chow Tsz Lok by Hong Kong Police, Half a year) published on the Mr Shum’s Facebook Profile on 8 May 2020 at around 2219 hours (“Facebook Post”). The article was also published on the Inmediahk Website on 9 May 2020 (“Inmediahk Article”).

13. Since the Facebook Post and Inmediahk Article (collectively “Article”) contained contents of prima facie breach of the Interim Injunction Order, the Police conducted an investigation into their publication.

14. The Article alleged amongst other things that the Police “murdered” the (then) 22-year-old Chow Tsz Lok (周梓樂), who died on 8 November 2019, after falling from the multi-storey Sheung Tak Car Park in Tseung Kwan O on 4 November 2019. The author of the Article further called on the people of Hong Kong to “take revenge” against the police for the incident and appealed for not severing ties with those who were prepared to resort to the use of violence, including guns and bombs, against the Police.

15. The Article contained, amongst others, the following references:

(1) 兇手正是香港警察 (English translation: The murderer is the Hong Kong Police Force.)

(2) 但我是確信,周梓樂是被香港警渣所謀殺的。 (English translation: But I firmly believe that Chow Tsz Lok was murdered by the Hong Kong Police scum.)

(3) 從那天開始,我們的口號由「香港人加油」、「香港人反抗」,變為「香港人,報仇」。香港警察親手殺害了我們的手足,制度不彰,公義不顯,報仇是理所當然。 (English translation: From that day onward, our slogan had been changed from “Hong Kong people, keep it up”, “Hong Kong people, rebel”, to “Hong Kong people, take revenge”. Hong Kong Police murdered our comrade with their own hands but the institution was faulty and justice was not seen. Taking revenge is a matter of course.)

(4) 「香港人報仇」……也不能只是流於口號,因為牠們是切實地殺害了我們親友的仇人。 (English translation: “Hong Kong people, take revenge” … should not remain as a slogan only, as they [using the animal form of “they”] are the enemy who actually murdered our close family and friends.)

(5) 自此之後,有些手足向著更高規格的裝備發展,有槍有炸彈。(English translation: Since then, some comrades have been advancing the level of their equipment, there are guns and bombs.)

(6) 其實我一路都想講,如果佢地真係做左,行埋未行到果步,其實一定唔會割,至少我一定唔會割。 (English translation: As I have been wanting to say all along, if they actually do it, taking the step that has not been taken yet, we are definitely not going to sever ties with them. At least I myself am definitely not going to sever ties.)

(7) 自從周梓樂那夜,香港人要報仇,是一個實在的任務來。香港警畜是實實在在地謀殺了我們一位手足。或許是多位。(English translation: Since the night Chow Tsz Lok (was killed), it has become a real mission for Hong Kong people to take revenge. Hong Kong Police beasts have actually murdered one of our comrades, or possibly more)

(8) 如果香港人報仇,不再是口號,而是真的有手足做了,一定不割。(English translation: If “Hong Kong people, take revenge” is no longer a slogan but actually done by our comrades, definitely will not sever ties.)

16. The SJ submits that, reading the lines together and in context, the Article incited hatred against the Police, promoted, encouraged and condoned the use of violence, guns and bombs against the Police. I agree.

17. Mr Shum’s Facebook Profile bore his name and photo. It had a blue tick to show that Facebook, based on its internal vetting process, had confirmed that the account is the authentic presence of the public figure, celebrity, or global brand it represents. The status of the Facebook Post, as shown by a “Globe” icon underneath the account name and next to the time stamp, was “Public” (meaning the Facebook Post was publicly accessible by anyone browsing the Facebook Profile).

18. As of 25 May 2020, the Facebook Profile had attracted 53,714 followers. The Facebook Post had attracted 13 comments from other Facebook users, and had been shared on 646 occasions to other Facebook accounts. 1,624 Facebook users had responded to the Facebook Post with emotion icons. Those statistics imply that at least 1,624 Facebook users had read the Facebook Post. Of the 13 comments left under the Facebook Post, four posts contained expressions promoting, encouraging or inciting the use of violence:

No.
Facebook User Date and Time
Content
English Translation
1.
21 May 2020, 09:05am
我轉載呢篇文,告埋我煽動暴力好冇? ?
Would you prosecute me with “inciting the use of violence” for relaying this article?
2.
21 May 2020, 08:37am
多謝發聲 黑警死全家
Thank you for voicing out. The whole family of corrupt police should die.
3.
9 May 2020, 12:01am
岑敖暉,6年前雨傘運動,我一直覺得你地學聯係食緊人血饅頭,好撚討厭你地。6年後的今日,我要感謝你。因為你一直冇放棄過一班前線嘅手足。皇軍殺周梓樂,係鐵一般的事實, 721 , 831等等,係唔會再返得到轉頭。我相信心水清既人,一定一定一定會繼續呢場逆權運動,持續抗爭!
Lester Shum, in the Umbrella Movement 6 years ago, I always thought you guys in the Federation of Students [Hong Kong Federation of Students] were eating steamed human-blood buns and I fucking hated you guys. 6 years later, I have to thank you today, because you have never given up on the comrades at the frontline. The royal army killed Chow Tsz Lok, it is an undeniable truth. After the events of 721, 831, etc., there is no turning back. I believe those with a clear mind will definitely continue with this anti-establishment movement, carry on fighting!
4.
9 May 2020,
07:16am
由梁義士墮下一刻開始,向政權報仇/問責已經開始,我們都已經難以回頭。
Since the fall of martyr LEUNG, the revenge or fault finding against the regime has begun. There is no way back.

19. According to the guidelines published on the Inmediahk Website, any person who...

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