Secretary for Justice v Siew Yun Long

Secretary for Justice v Siew YunLong
[2018] 4 HKLRD 438
Court of First Instance
Miscellaneous Proceedings Nos 2917, 2918, 2925, 2929 and 2931 of 2015
Andrew Chan J

31 August 2018

Contempt of court - criminal contempt - contempt proceedings arose out of events of mass protests during "Occupy Central" movement - breach of injunction order - protestors refusing to leave area in breach of injunction and obstructing bailiffs in executing order - deliberate defiance of order - conduct amounted to criminal contempt

The Secretary for Justice applied for the committal of R1-5 for criminal contempt which took place on 25 November 2014 during the Occupy Central Movement, by deliberately interfering with and/or impeding the due execution by bailiffs and police of an Injunction Order granted to P, a public light bus company, inter alia, restraining persons from unlawfully remaining on a public highway and nearby streets in Mongkok (the Area), despite repeated warnings to disperse (the Announcements). Major obstructions were removed by 2:45pm but the Area was not completely cleared until 3:35pm that day. Rs all had clear records. R1 was in the Area for over five hours, but claimed he only took photographs as a documentary reporter and did not participate in the protests. R1 did not give evidence, but a post by him on Facebook indicated that he had been in the Area as a documentary reporter before his arrest and a protester thereafter. R2 was in the area from 2:44 pm to 3:06 pm. After the final Announcement, some protesters left, but R2 went and stood with his back to the police cordon. Shortly before his arrest, although the crowd was advised to leave, R2 did not move. R3 was in the Area from 9:54 am to 3:10 pm, standing close to bailiffs and police with a loudhailer and helping others broadcast messages. R4 was in the Area from 11:16 am to 3:10 pm, wearing a helmet, googles, a yellow scarf over his face and a red T-shirt, standing close to bailiffs and P's solicitors while they made announcements. R5 was in the Area from 9:26 am to 3:07 pm, his mouth masked, in front of the barricades or near P's agents or bailiffs. R5 and others shouted their demands for universal suffrage and R5 stood on a stage holding a yellow banner with the same demand. He later assisted to dismantle the stage and remove it, but returned to the Area and ate cake with his back to the police cordon. However, R5 gave evidence that he wanted to leave the Area after he learnt of the injunction order, but by then, he was trapped in the crowd.

Held, that:

  • Where a party to a court order obstructed or interfered with the bailiff in executing the order, whether or not the order contained a provision authorising the bailiff to do so, the party committed a criminal contempt. It was sufficient to prove as mens rea that the party intended to do the acts which constituted the actus reus of the contempt; no specific intent to interfere with the administration of justice was required (Secretary for Justice v Wong Ho Ming [2018] HKCA 173, [2018] HKEC 726 applied). (See para.19)
     
  • R1 was fully aware of the Announcements, but wanted to play a part as a protester and history-making photographer until the last minute. R1's continued presence with a large crowd of fellow protesters reflected a clear intention to flout the Injunction Order and was not only inherently likely to but calculated to delay, if not frustrate, the bailiffs' and P's agents' efforts to clear obstacles. His conduct was a serious interference with the due administration of justice and he was guilty of criminal contempt (Secretary for Justice v Chu Pui Yan (HCMP 778/2015, [2017] HKEC 2175) applied). (See paras.25-28.)
     
  • For the same reasons, R2-5's conduct was guilty of criminal contempt. They, like R1, had no intention of leaving the Area despite ample opportunities to do so. In particular, R4 intended to stay until the end and, given his gear, was expecting a confrontation with the police. R5's testimony that he wanted to leave but was blocked by the crowd was rejected. Given his extended presence in the Area and involvement and knowledge of the intended clearance operation, he deliberately defied the Announcements. (See paras.31, 33, 38, 46.)

Application

This was an application by the Secretary for Justice for the committal for criminal contempt of the five respondents in relation to events which took place on 25 November 2014 in Mongkok during the Occupy Central movement. The facts are set out in the judgment.

Jurisdictions: 

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