Executive Summary

In April 2026, the Court of First Instance held that POON Chuk Hung, Chairman of CHINAT Monitor, in connection with a wage dispute involving a company of which he was a director, after the Labour Tribunal had ruled in favour of the claimant and while the company was seeking leave to appeal, obtained a transcript of the hearing and disclosed parts of it publicly while criticising the presiding officer. He was convicted of both criminal and civil contempt of court, and was sentenced to immediate imprisonment and ordered to pay costs.

On its face, the case concerns out-of-court commentary and breach of a transcript-use undertaking. At its core, however, it raises two questions: how out-of-court speech—absent any proven interference with judicial proceedings—can be elevated to criminal liability; and how restrictions on the use of hearing transcripts can be enforced without a clear statutory basis.

Under Hong Kong common law, criminal contempt arising from out-of-court speech is generally treated as scandalising the court, with the operative threshold primarily derived from the “real risk” test adopted in Wong Yeung Ng v Secretary for Justice [1999] 2 HKLRD 293. That case arose from extreme circumstances involving retaliatory and intimidating language directed at judges, followed by acts of actual pursuit. The threshold was developed to address such exceptional situations where threats and actions combine to create a real risk of substantive interference with judicial proceedings, rather than to apply to ordinary post-judgment commentary or intemperate criticism.

In the present case, the judgment does not squarely address the nature or limits of that threshold. The conviction proceeded solely on the basis that the impugned speech would “undermine public confidence in the administration of justice”, without identifying any element of procedural interference. At sentencing, however, the court introduced, for the first time, an inference that Poon “plainly intended to involve other people to affect the outcome of the Leave Application or appeal, if leave is granted”. In doing so, the court converted a system-level impact into an inference of procedural interference and relied on that inference to aggravate sentence. This inference was neither part of the conviction analysis nor supported by a sound logical foundation, yet it produced materially adverse consequences at sentencing, resulting in a structural misalignment between conviction and sentence.

As a common law offence, scandalising the court has been abolished by statute in its originating jurisdiction, England and Wales. In contrast, Hong Kong now operates within a constitutional framework defined by the Basic Law and the Hong Kong Bill of Rights. In particular, Article 16(1) of the Bill of Rights guarantees the right to hold opinions without interference. Within this framework, whether the existing common law threshold for scandalising the court remains sufficient to sustain criminal sanctions on out-of-court speech has yet to be fully considered by the Court of Final Appeal.

The civil contempt limb exposes the same underlying deficiency in a different form. In a system where open justice is the default, restrictions on the use of hearing transcripts lack a clear statutory basis, yet are enforced through standard-form undertakings. The 2004 Labour Tribunal Review Report recommended legislative provision for limited-purpose restrictions, but such reforms have not been implemented. Under Article 10 of the Hong Kong Bill of Rights, any departure from open justice should arise only in exceptional circumstances.

The Poon case therefore brings into focus two long-standing and unresolved constitutional issues arising respectively in the criminal and civil contempt pathways: on the criminal side, the limits of the scandalising-the-court threshold within a contemporary rights framework; and on the civil side, the legal foundation for restrictions on the use of hearing transcripts under the principle of open justice. The convergence of these issues gives the case potential landmark significance.

(Full Chinese article available here.)