Secretary for Justice v Wong Chi Fung (黃之鋒) (No 2) [2023] 4 HKC 619, [2023] HKCFI 1023

Albert NB Wong represented the defendant in Secretary for Justice v Wong Chi Fung (黃之鋒) (No 2) [2023] 4 HKC 619, [2023] HKCFI 1023.

Committal proceedings were commenced against the defendant for breach of the injunction order granted by the Court of First Instance in 2019 against police doxxing, and the anonymity order granted by a magistrate in relation to a set of criminal proceedings. The breach occurred in that the defendant, a public figure, published a post on his Facebook page which disclosed the personal data of a police officer, who used firearm during a public order event in Sai Wan Ho on the morning of 11 November 2019, his wife and two daughters. The proceedings were, however, only commenced by the Secretary for Justice some 21 months later. The defendant did not contest liability, and had issued an apology after the commencement of these proceedings.

Held, sentencing the defendant to a term of three months’ imprisonment, that:

• (1) The delay in commencing these proceedings undermined the public policy origin of the inherent jurisdiction of contempt of court. The Police had concluded the bulk, if not the entirety, of the relevant investigations as revealed in the facts now relied upon in support of the application to commit the defendant, by 17 August 2020. The overall explanation of delay remained not particularly convincing. There was also great force in the submission that had there been contempt proceedings initiated in 2020 against a person as high profile as the defendant, leading to an apology, acceptance of liability and punishment, that would have deterred any further breaches of the police doxxing injunction. To put it in another way, some of the circumstances which the Secretary for Justice relied upon as explaining, if not justifying, the significant delay, namely the huge number of cases which were considered for possible contempt proceedings, would likely have been somewhat different had the Department of Justice focused on the ‘big fish’ rather than the ‘low hanging fruit’. It would be surprising if there were not some form of prioritising, yet that was clearly not evident in the failure to have brought applications like this one in good time, when it might have had the greatest effect. Indeed, the deterrent effect of the defendant’s apology, and any penalty imposed on the defendant, had been undermined by the delay. There was also loss of an opportunity to lessen the nuisance, harassment and intimidation suffered by the officer and his family. On the other hand, there was also delay on the part of the defendant in publicly and expressly making an apology and disavowing any of the sentiments in the relevant materials (paras 47-61).
• (2) In sentencing, the starting point was that it was fundamental to the rule of law that court orders were to be obeyed. Court orders were not guidelines, and the requirement to obey court orders did not depend on one’s political or personal views, or state of emotion. The defendant was a public figure who had, knew he had, and intended to have, a significant public following and consequent influence. The post was in the form of an open letter written to another similar public figure. It had a link to a known doxxing site or channel. The numbers in the present case showed that if a person had a large social media following, the harm caused by the posting of materials may be greater. The defendant must have had some intention when he made the post, and it would have been naïve in the extreme in the then climate to have assumed that the post would not provoke or generate or be linked to at least unhelpful and inappropriate comments. Making the post was only more likely raise the temperature and inflame the situation than calm it. This was to an extent recognised by the defendant. Not to have been aware of the content of the immediately linked item was not a significant point of mitigation. The very problem with the use of social media was that persons post or forward materials without thinking of, or simply not caring about, the potential and often likely consequences. It was easy to post something on social media or the internet with just a few clicks or keystrokes that people should stop to think about the consequences of their actions, where the effects may be wide and last a long time. The very nature of the internet and social media facilitated, and the very point of doxxing activities was, to put private personal data into the public domain, and precisely to facilitate or to encourage the kinds of interference and harassment as had typically followed. The Court took into account (i) that once these proceedings were started, the defendant quickly identified that he would admit liability, and that he would apologise both for the original contempt and for the failure to have apologised earlier and (ii) that there had been a significant shift in the mind-set of the defendant since 2020, which was that he now recognised that his stance and methods for pursuing his stated aims were not appropriate. However, the particular post and the consequences of it were amongst the most serious of those which had been brought back before the Court as a breach of the police doxxing injunction, taking into account the defendant’s personal standing and circumstances. Taking into account such matters, as well as the passing of time, and other mitigating factors, an immediate custodial sentence of three months was appropriate (paras 78-86).
• (3) There was no presumption of indemnity costs in contempt proceedings. Taking into account the factors including that the delay had undermined the utility of the proceedings, the appropriate costs order was by way of a contribution in the sum of $50,000 (paras 87-90).

[The above is excerpted from the headnote to the report in HKC.]