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Secretary For Justice v Cheung Chi Ho

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date14 August 2023
Neutral Citation[2023] HKCFI 2104
Subject MatterMiscellaneous Proceedings
Judgement NumberHCMP598/2022
HCMP598A/2022 SECRETARY FOR JUSTICE v. CHEUNG CHI HO

HCMP 598/2022

[2023] HKCFI 2104

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 598 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 2007/2019

________________________

BETWEEN
SECRETARY FOR JUSTICE Plaintiff
and
CHEUNG CHI HO (張志豪) Defendant

________________

Before: Hon Coleman J in Court
Date of Hearing: 14 August 2023
Date of Decision: 14 August 2023

_________________

D E C I S I O N

_________________

A. Introduction

1. This matter last came before the Court on 18 July 2023. On that occasion, the plaintiff (“SJ”) was represented by Mr Justin Lam of Counsel, but the Defendant was absent. Today the SJ is represented by Mr Alvin Hor, Government Counsel (who has adopted Mr Lam’s previous written submissions), and the Defendant is again absent.

2. The 18 July 2023 hearing was the first hearing of the originating summons dated 30 November 2022 (“OS”), for which leave had been previously granted by me. The OS sought an order of committal to be made against the Defendant, on the basis of his alleged breach of an injunction order made by me seeking to prevent incitement of injury or harm to judicial officers (“Incitement Injunction”).

3. Because the Defendant had failed to give any response to the OS, I had also previously given leave for substituted service on the Defendant by way of sending the various materials to his last known e-mail address. I was satisfied that the documents were received by the Defendant and that he knew of the circumstances of the application and the hearing date.

4. At the hearing, I found that it was appropriate in the circumstances to deal with the matter of any liability for the alleged contempt, notwithstanding the absence of the Defendant.

5. Having carefully considered the materials, I found the Defendant liable for the contempt.

6. However, I was not prepared to go on to deal with the sentencing or penalty phase of the hearing, without at least giving the Defendant one further chance to participate in these proceedings.

7. Instead, I ordered a warrant for his arrest, so that the Defendant might be brought back before the Court. But it also seemed to me to be appropriate to set a ‘long stop’ date, so that the matter would not be left open or in abeyance pending the effecting of the warrant of arrest. I said that I would consider on that date whether it would then be appropriate to go on to deal with the question of penalty even if the Defendant continues to be absent.

8. The date I set was 14 August 2023, i.e. today. I am again satisfied that the Defendant has been served in accordance with my order for substituted service. I also note that the finding of contempt garnered some media coverage, and may well have come to the attention of the Defendant or those persons in contact with him who might have informed him of it.

9. However, as already stated, the Defendant has continued to be absent. He is neither present nor represented in Court. Nor has there been any communication from him. In the circumstances identified below, this is perhaps not surprising.

10. Having considered matters, and where the Court clearly has jurisdiction to proceed to sentencing in the absence of the defendant where circumstances so justify, it seems to me that I should no longer put off dealing with the question of an appropriate sentence to impose for the Defendant’s contempt of Court, which I have found proved.

B. Background of Contempt

11. The Incitement Injunction was first obtained on an ex parte basis on 31 October 2019. The grant of the ex parte injunction was widely reported in the media.

12. On 15 November 2019, the Incitement Injunction was continued on an inter partes basis, albeit with an amendment, so that it prevented or prohibited wilfully disseminating, circulating, publishing or republishing on any internet‑based platform or medium any material or information for the purpose of promoting, encouraging, or inciting the use or threat of violence, intended or likely to cause bodily injury to any person unlawfully within Hong Kong or damage to any property unlawfully within Hong Kong as well as wilfully assisting, causing, counselling, procuring, instigating, inciting, aiding, abetting or authorising others to commit any of those aforesaid acts or participate in any of those aforesaid acts. The inter partes continuation of the Incitement Injunction was also widely reported in the media and substituted service of it was effected in accordance with the Court’s directions.

13. On 3 December 2020, the Chief Magistrate’s Office received a phone call in which the caller threatened to kill the Chief Magistrate, his wife, and his son by a bomb (“Bomb Threat”). The Bomb Threat was widely reported in the local media and generated significant social media activity.

14. The Defendant later posted two Facebook comments (together “Comments”), using his account, which were the subject of these committal proceedings. It suffices to say that:

(1) On 5 December 2020, the Defendant posted a comment (“Comment 1”) in a particular Facebook group named “51黃金良心圈” (“FB Group”) underneath a post which referred to the Bomb Threat (“FB Post”), and which said “講系無用，炸死全家先有證據” (in translation: “It is useless to talk. Bomb the whole family to death. Then there will be evidence.”)

(2) Later on the same day, a second comment (“Comment 2”) was posted on the Facebook page of i-Cable News (“i-Cable Page”), underneath the post about the Bomb Threat (“i-Cable Post”) saying “炸死全家先有證據” (in translation: “There will only be evidence when the whole family is bombed to death.”)

15. As I stated in finding the Defendant liable for the contempt, the two Comments posted by the Defendant were clearly in breach of the Incitement...

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