The seven policemen who were suspected of assault / battery in October 2014 – where grainy video showed the group lugging a victim to a dark corner of Tamar Park and apparently kicking and punching him – were finally convicted at the District Court by Dufton J (i) wounding or striking with intent to do grievous bodily harm (s. 17 Offence Against the Persons Ordinance (Cap. 212)); and (ii) common assault (s. 40 of the same). Subsequently director Clifton Ko Chi-Sum posted a status on his Facebook profile which roughly translates to “‘Yellow ribbon’ judge shows bias in helping those who spread disorder in Hong Kong; localists and pro-independence thugs have committed arson, assaulted police, destroyed public property – the “dog” judge (i.e. “bad” judge) sentences them lightly or even pronounces them not guilty, which is extremely biased”
Subsequently, in response to backlash, Ko posted on 15 February that he respected the law greatly – but only distrusted individual judges. He further asked rhetorically what law in Hong Kong prohibited the criticism of judges. Apple Daily has reported (regarding the first status) that this might constitute contempt of court, especially given the implications behind the label “yellow ribbon” – the term first cropped up in the Occupy Central movement, when yellow ribbons were worn as a symbol of the protest, while those supporting the police (and arguably as a corollary, denounced the acts of civil disobedience which placed stress on the police force) wore blue ribbons. The two colors have gradually become representative of the pan-democratic movement and its more extreme offshoots (most noticeably localism and pro-independence factions), while “blue ribbon” suggests a pro-China, pro-establishment outlook. To suggest that Dufton J was a “yellow ribbon” judge points to a political inclination and a bias which heavily undermines the impartiality of the judiciary.
Was there contempt of court?
However, although Ko’s statements are highly provocative and definitely influential given his career as a famous director with a series of successful movies behind him, it seems doubtful that this can be – or will be – prosecuted for contempt. Specifically, this will really only engage the offence of “scandalizing the court”, which is a rather ancient criminal offence now abolished in the UK. It is part of the arsenal of offences within the contempt of court regime, used to ensure smooth administration of justice and preserve integrity in the judicial process. The gist of the offence is to punish those who launch spurious attacks on the judiciary (whether as a whole, or on individual members), so as to interfere with the due course of justice as a whole. Denning in “The Road to Justice” explained it based on the age-old mantra about justice having to be seen to be done – indeed, because institutions like the judiciary are only as strong as they are perceived to be, and are highly dependent on public confidence and perception, incessant insinuations that the courts are all corrupt and prejudiced will do little to help the public trust that there will be justice meted out in the proceedings. The Law Commission when discussing contempt of court reform in the late eighties recommended that an offence be created – though noting the need to preserve freedom of expression, and protection of bona fide criticism and debate about judgments.
This bona fide criticism / freedom of expression point is of course of paramount importance – as the must-read book for aspiring law students by Lord Bingham, “The Rule of Law”, noted, the independent judiciary (reinforced with appropriate prohibitions on groundless and malicious attacks) and protection of human rights go hand in hand in building up the rule of law. Clearly, any offence of “scandalizing the court” must not go as far as to ban discussion about court judgments or even the decision of particular judges; that is healthy for public discourse and adds to the exchange of information critical to any healthy society. Even disagreeing (vehemently) with a sentence is acceptable, since that goes to a contention with the substance of the judgment. What the offence targets is where the criticism consists of personal attacks on judges, lacking reasoned argument and good faith.
As an aside then, Ko’s later rhetorical question is evidently misguided: although there is no statute per se which prohibits scandlizing the court, and the Basic Law, for instance, does not set it out in black and white that judges cannot be criticized, there is an established offence in Hong Kong law prohibiting personal attacks which undermine the administration of justice, which has been relied on to prosecute defendants who have crossed the line from bona fide criticism.
The landmark decision in this area is Secretary for Justice v the Oriental Press Group & Others (1998), where the Oriental Press Group launched a series of attacks against various judges who had decided against them in two particular cases. The attacks included consecutive days of publishing articles insinuating that the judges were remnants of the colonial government who systematically persecuted the Oriental Press Group, peppered with various racist slurs and vulgarities. Given the extensive barrage of attacks, the court found that the newspaper was guilty of scandlizing the court – and also set out the actus reus and mens rea of the offence, based on precedents from around the world.
The actus reus of the offence involved “any act done or writing published calculated to bring a Court or a judge of the Court into contempt, or to lower his authority“. There was no need to show that due administration of justice was actually, or may be, in peril since the issue was whether there was a “real risk…[that the act] would undermine public confidence in the administration of justice“. Such a real risk merely meant a “good chance“, instead of remote possibilities – it did not require proof on a balance of probabilities. Factors to be considered include whether there is a pending action, and whether the act is targeted at a particular case or at the court generally. The essence was whether there was a risk that the acts would “undermine confidence in the due administration of justice in the minds of at least some of the persons who were likely to become aware of the publication or acts complained of” – which need not be a reasonable man.
On mens rea, the court held that the defendant(s) need only intend to do the act (of publishing or making the attacks); it was not necessary to show that he intended to undermine public confidence per se. Evidently, the bar here is very low – partly to complement the importance of the contempt of court rules intended to preserve the very integrity of the judicial process.
Ko’s Facebook status prima facie could satisfy the two prongs of the offence, given his specific targeting of Dufton J and the policemen-assault case – while not mentioned by name in the status, the next status on his page involved sharing a link of a news article on the judgment, which means that the obvious inference was that the status in question was not a blanket, general shot in the dark. It was evidently calculated to bring the judge into contempt by suggesting that the judge had political inclinations leading to his bias in deciding the case against the policemen, and that judgments depended only on the political affiliations of the defendants in the dock. Given the public nature of the Facebook platform, there was definitely a real risk that the status would undermine confidence in the due administration of justice in the minds of a number of his friends / followers – multiplied exponentially once the news media picked up on his status and blew it up.
Of course, in Oriental Press Group there were a handful of different articles published over a number of days with offensive slurs and groundless attacks, which (on balance) seems much worse than a disgruntled Facebook user. At this juncture, perhaps it is important to consider whether the freedom of expression concerns that the court waved away in Oriental Press Group can resurface in a new era. There, the court dismissed the argument that the recognition and application of the offence amounted to an attack to freedom of speech by holding that (i) where D commits the common law offence of scandalizing the court, he is not exercising his right to freedom of expression at all; and (ii) even if the right were engaged, the considerations about upholding the integrity of the judiciary etc. were appropriate aims and the offence was a necessary and proportionate means to achieve those objectives.
That case involved a newspaper and a whole corporate group using the machinery of a publication to attack the judiciary – whereas Ko is a single individual with a phone and a Facebook account i.e. very much the same as every other Facebook user who signed up for a platform of venting one’s (inane) thoughts and pent-up angst against the world. It seems difficult to draw a line between an offhand comment between friends discussing a current judgment – when someone says, “Ugh, that judge must be out of her mind to decide in that way; it’s just pretty obvious the defendant should have gotten off”, and the other concurs by rolling her eyes and snorting, “Yeah, what a bitch” – that is clearly not an “act done or writing published” and so will not be caught by the actus reus as laid out in Oriental Press Group, but why is Ko’s status any different? True: calling a judge “a bitch” – which is definitely derogatory and very not nice – may be a little milder than suggesting that Dufton J was biased and acted only to help the pro-independence movement, but in both instances there is some attack calculated to undermine the due administration of justice.
It would be near impossible for any sort of prosecution to be brought against Ko (or anyone who Facebooks like him, for that matter), largely because the Secretary of Justice is not concerned with individual trivialities like this (regardless of the public outrage / support), and because the issues stemming from choosing to take action are much more complex than proving the straightforward offence here. It seems like a catch-22 then: not taking action against individual users who publish sentiments daily about the “corruption” endemic in the “yellow ribbon” judges are getting off scot-free while continuing to spread their views to a public who may gradually start questioning the judiciary and its independence (which starts a whole cycle of corrosion of confidence), but prosecuting certain critics can both chill actual constructive debate and fire up protestors intent on protecting freedom of speech. Voltaire might disapprove of Ko’s Facebook status, but he will defend to death his right to say it, and perhaps in a precarious situation where people speak in hushed tones of growing threats to human rights in Hong Kong, it is (more / equally) important to safeguard that last wall – but at what cost to our judiciary? Without that judiciary, we can hardly safeguard any freedom of speech rights, but curbing the latter may be necessary to save the former.