In a recent case, Secretary for Justice v Persons Conducting Prohibited Acts,(1) the High Court ordered the continuation of various injunction orders restraining unnamed defendants from engaging in activity, commonly known as 'doxxing' (together with associated conduct), directed at judges and judicial officers in Hong Kong, together with their spouses and immediate family members. The court's decision follows an increase in such activity in connection with certain verdicts and (upon conviction) sentences in cases where persons have been charged with offences arising out of protests or related public order incidents. The proceedings were commenced by the secretary for justice, as the guardian of the public interest, and not at the instigation of the judiciary.
As a result of certain public order incidents arising out of protests in Hong Kong in 2019, many cases have been making their way through the first-instance criminal courts – principally, in the magistrates' courts and the District Court. While some cases have resulted in acquittals, others have resulted in convictions and sentences. Some of the sentences have included custodial sentences.
In the current climate, and in an era of cyberbullying, the judiciary has not been immune to unfair criticism. This has included doxxing, often by anonymous persons via encrypted messenger apps and social media platforms or forums. The doxxing in this case appears to have included the publication of sensitive personal data relating to certain judges and judicial officers and their families. In some instances, the doxxing appears to have involved threats.
On 30 October 2020 a High Court judge granted ex parte (without notice) injunction orders against unknown persons, restraining the unlawful acts – in particular, the publication of the personal data of judges and judicial officers and their spouses and immediate family members (namely, parents, children and siblings). The category of personal data sought to be protected from unlawful disclosure was wide and the injunction orders were aimed at acts intended (among other things) to intimidate judges and judicial officers or that (among other things) assist, aid or abet such acts.
The court proceedings were commenced by the secretary for justice acting in the public interest and not by the judiciary itself or by any one judge. There is no suggestion that any judge or judicial officer had succumbed to any pressure, but the evidence pointed to some particularly egregious threats.
Importantly, the injunction orders did not prevent the reporting of legitimate 'news activity', as defined in Section 61 of the Personal Data (Privacy) Ordinance (Cap 486).
Given that the persons against whom the injunctions were aimed appeared to be anonymous (for now), the judge also granted permission for the court proceedings and ex parte orders to be served on the defendants by substituted service – for example, by publication on the webpages of the Hong Kong police, the department of justice and the government.
The ex parte injunction orders remained in place for two weeks and on 13 November 2020 (at an inter partes 'return date') the judge considered whether to continue the orders. Unsurprisingly, no one falling within the description of the category of defendants appeared at the court hearing (which was open to the public).
In a detailed decision, the judge explained the reasons for continuing the injunctions. Breach of the injunctions is a serious matter, potentially sounding in contempt of court (which can result in fines or imprisonment). While the court proceedings are civil in nature, the unlawful acts which the injunctions restrain are potentially criminal acts.
In an interesting decision, the judge considered the relevant legal principles for the grant of an injunction in such circumstances and how they applied to the evidence before him.
Cause of action
The judge noted that the underlying cause of action was based on public nuisance and that the secretary for justice was entitled to act to restrain such nuisance in the public interest. Further, the issues that arose were serious. In particular, if left unchecked, the unlawful acts could erode the public confidence in the administration of justice.
Damages
The judge held that the damage caused by the unlawful public nuisance was not quantifiable and could not be adequately remedied by an award of damages, so it was appropriate to award injunctive relief.
Balance of considerations
The judge noted that it was difficult to envisage any scenario where the defendants were legally entitled to act in the manner that they had (doxxing).
Further, to the extent that the injunction orders may have the effect of restricting freedom of speech, the court recognised that it had to perform a balancing exercise, taking into account (among other things) the protection of personal privacy, the maintenance of public order and confidence in the administration of justice. In any event, it was only unlawful acts that would be restrained and legitimate press reporting would continue to be permitted.
The injunction also served a purpose (described by the judge as a "utility"),(2) in that it would have a deterrent effect against acts aimed at harming the administration of justice, particularly, bearing in mind the demographics of Hong Kong – this was also the case even where, on the evidence, no particular judge or judicial officer had (to date) actually needed protection in order to perform their judicial role.
The judge understandably appears to have had little difficulty in ordering the continuation of the injunction orders.
The court's decision is powerful and has much to commend it. It reminds all stakeholders that the courts in Hong Kong are independent and that judges are impartial – duty bound, as they are, to uphold their judicial oath and decide cases without fear or favour.(3)
It is important to note that the rationale for the injunction is the public interest in upholding the rule of law and the administration of justice, not that any judge might otherwise fail to carry out their duty to be independent and impartial as a result of unlawful acts of doxxing.
The decision also analyses the public interest in some detail, including the role of the secretary for justice. Noting that judges speak through their judgments and do not defend their judgments in public, the judge commented:
On that basis, in common law jurisdictions like Hong Kong, it was the tradition that the minister responsible for the administration of justice has the duty of defending the Judiciary or individual Judges against wrong accusations. However, it seems that unfortunately that tradition is in decline and is not now always promptly honoured.(4)
This comment is, perhaps, best considered in the context of the political environment in several jurisdictions, and not with any one jurisdiction in mind.
Finally, the decision is a salutary reminder that while judicial decisions are not above criticism, criticism should be informed. There are proper avenues to challenge judicial decisions or to raise complaints. As the judge noted, those who engage in doxxing, in pursuit of misguided notions of justice, actually harm the rule of law.(5)
Endnotes
(1) [2020] HKCFI 2785, 13 November 2020. Similar injunction orders have been granted to prevent doxxing of police officers and their families – for example, [2019] HKCFI 2773, [2020] HKCFI 2687 and [2020] HKCFI 1194.
(3) In an environment in which questions are raised in a number of jurisdictions about a "separation of powers", in the context of judicial independence, it is interesting to note that the judge had this to state (at para 41): "Therefore, whatever label is used to describe the Hong Kong system, no Judge or Judicial Officer is 'led' by any member of the Executive".
