Contempt of Court – Defamation – Court of First Instance Imposes Immediate Custodial Sentence for Breach of an Injunction Order Prohibiting the Publication of Certain Defamatory Statements and Procuring the Removal of the Same
Defamation
Recently in Poon Ki Chi (潘麒智) v Poon Chuk Hung Jason (潘焯鴻) [2024] HKCFI 3371, Jeffrey Tam (together with William Kwok) represented the successful Plaintiff in her application for an order of committal against the Defendant, a well-known figure in the society, for his breach of an injunction order by making defamatory statements and offensive videos available and accessible. In the hearing for sentence, Deputy High Court Judge Kent Yee sentenced the Defendant to immediate imprisonment for 21 days and ordered him to pay the Plaintiff’s costs on an indemnity basis.
In the underlying defamation action of Poon Ki Chi (潘麒智) v Poon Chuk Hung Jason (潘焯鴻) [2024] 2 HKLRD 851, an interlocutory injunction was granted against the Defendant which prohibits his publication of three defamatory statements on his Facebook page and YouTube channel (the “Injunction Order”). The Injunction Order also requires him to forthwith remove the three defamatory statements and other similar defamatory statements. Despite the Injunction Order, the Defendant did not remove these defamatory publications from his social media platforms.
In light of the Defendant’s intransigence, the solicitors for the Plaintiff issued a letter explicitly demanding the Defendant’s compliance with the Injunction Order by his removal of the defamatory Facebook posts and YouTube videos, and threatening a committal proceeding in case of non-compliance (the “Demand Letter”). The Demand Letter, which the Plaintiff was not obliged to issue, was considered by the Court as an unequivocal warning to the Defendant [41]. The Defendant therefore had no excuse not to remedy the breach immediately, who however, sensed no urgency and waited for 10 days after his receipt of the Demand Letter to act [57].
The deflection of blame on his former solicitors and assistant did not assist the Defendant in mitigating his breach for the fact that the Injunction Order was made against him personally and the penal notice made it clear that he had to shoulder personal liability for any breach [74].
The Court concluded that the Defendant was less than conscientious in his compliance with the Injunction Order and was not serious enough about the same. The Court was also of the view that the Defendant has not been fully co-operative in these proceedings, and did not appreciate sufficiently the effect of the Injunction Order and the harm caused to the Plaintiff by the continued publication of the defamatory statements. To reflect the gravity of the breach, the Court eventually sentenced the Defendant to 21 days’ immediate imprisonment as opposed to a suspended sentence [77]-[78].
This case underscores the importance of adhering to court orders, the importance of giving a warning to the Defendant before commencing a committal proceeding and the serious consequences of any breach thereof.
Jeffrey Tam
“Jeffrey Tam of Denis Chang’s Chambers has a broad public law practice that spans issues relating to broadcasting, elections, police powers, housing policy and the National Security Law”
“We handled a very high-profile case; he’s a rising star.”
Chambers and Partners Greater China Region Guide 2024, Administrative & Public Law — Juniors, Band 2
Jeffrey Tam, FHKIArb, attended St. Anne’s College at the University of Oxford for a Bachelor of Civil Law (BCL) on a scholarship after reading law at the City University of Hong Kong. He is also named as a “Leading Junior” for Administrative and Public Law in Legal 500 Asia-Pacific 2022-2025.
Visit Jeffrey’s profile for more details.
This article was first published on 29 November 2024.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers, or of any other member or members of Denis Chang’s Chambers.