The Secretary for Justice v. The Oriental Press Group Ltd. and Others

HCMP000407A/1998

HCMP 407/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 407 of 1998

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Coram : Hon Chan, C.J.H.C. and Keith, J.

Dates of Hearing on Sentence and Costs: 27, 29 and 30 June 1998

Date of Sentence and Ruling on Costs : 30 June 1998

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J U D G M E N T

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Chan C.J.H.C. and Keith, J.:

1. Both members of the Court have contributed to the drafting of the remarks which we are about to make.

Sentence

2. It is regrettable that we have to sentence for scandalising the court the proprietor of the Chinese newspaper with the widest circulation in Hong Kong and an experienced journalist with an impeccable character. An independent Judiciary and a free press are two vital pillars of our community. If, as in this case, the freedom of the press is abused by the scandalising of the court, both the independence of the Judiciary and the freedom of the press suffer. The rule of law is at risk if public confidence in the Judiciary is weakened. Freedom of expression is endangered if it is abused. Judges are not immune from criticism. They need criticism to point out their mistakes and to remind them that they are not infallible. If freedom of expression is to be respected, it must be exercised fairly, reasonably and in good faith. This must be the guiding principle of a responsible and respectable press. In the present case, most unfortunately, freedom of expression has been grossly abused.

3. The campaign which the Oriental Daily News waged against the Judiciary was without parallel in modern times. The features of this prolonged and sustained campaign which made it so unique include the venom of the language which was used, the outrageousness of the motives which it ascribed to its targets, and - if the numerous letters of support which the Oriental Daily News claimed to have received from its readers is anything to go by - the impact which the campaign had on public confidence in the ability of Hong Kong's judges to dispense justice conscientiously and impartially.

4. It has been argued that these contempts of court were not of the most serious kind, and that the heaviest punishments should be reserved for cases similar to that of the editor of a national newspaper in England in 1949 which reported in a sensational manner that a man in custody facing a murder charge had murdered a number of other people who the newspaper named and that the man was a vampire who drank the blood of his victims. We do not wish in any way to minimise the gravity of the contempts of those who publish highly irresponsible articles about pending criminal cases, and who therefore undermine the integrity of the criminal process. But we regard the contempts which were committed in the present case as even more serious, probably more serious than any of those involved in the cases which have been referred to us. That is because what was at stake in the Oriental Daily News' campaign was not the outcome of an individual case but nothing less than the rule of law itself. As we said in our judgment, the intention was to create a climate of dissatisfaction with the Judiciary - probably in the hope that the Judiciary would bow to the weight of public opinion, and treat the Oriental Daily News and its sister newspapers in a more benevolent way in the future. It was this ultimate challenge to the rule of law which makes these contempts probably the most serious examples of "media" contempts which the courts in the common law world have ever encountered. Hence, we have not found the authorities referred to us for the purpose of comparison to have been of any assistance.

5. The contempt of court consisting of the pursuit of Godfrey JA was equally unprecedented. We know of no case in which a judge has been harassed in the way in which Godfrey JA was. What made the pursuit of him particularly serious was that it was done, not as was suggested to educate him in the ways of paparazzi, but to pay him back for not going along with all of the Oriental Press Group's arguments in the case which he had heard. For these reasons, the sentences which we impose must reflect our view of the unprecedented gravity of the contempts which have been committed.

6. We deal first with the 6th respondent, Wong Yeung Ng, the former editor of theOriental Daily News. Subject to one reservation which we shall mention in a moment, he must bear the prime responsibility for this campaign. That is because as editor he had ultimate control over the contents of the Oriental Daily News and over the activities of the newspaper's photographers and reporters who hounded Godfrey JA. We have noted his unreserved apology for his conduct, and we are prepared to accept that he is genuinely remorseful for what he has done. We are also prepared to accept that he would have admitted his responsibility for these contempts at the outset were it not for the arguments canvassed on behalf of the other respondents that the conduct complained of did not in law amount to contempts of court at all. We have also borne in mind his personal background, his hitherto unimpeachable character, and the fact that his reputation as an experienced and respected professional in his field has been irretrievably tarnished.

7. We have not overlooked the argument of Mr Cheng Huan, SC for Mr Wong that journalists may have been led to believe that they would not be prosecuted for the offence of scandalising the court because abusive attacks on judges have escaped prosecution elsewhere, and because the offence has been thought at various times to be obsolete. We do not know whether that is what Mr Wong believed, but even if he did, we do not regard it as being a serious mitigating factor. As we said in our judgment, the rarity of prosecution is not

"because of a belief that there is no room for this branch of the law of contempt in a society which places so high a premium on an independent and vigorous press and freedom of expression, but rather because attacks on the judiciary are so infrequent and prosecutions for contempts of this kind are only initiated in the most outrageous cases."

8. Nor have we overlooked the point stressed by Mr Cheng - that Mr Wong had sought legal advice and had been told that it was not unlawful for paparazzi to tail public figures, provided that they did not trespass on their person or property. But the fact that a person acts with the benefit of legal advice can only really mitigate his offence if he puts his legal advisers in the picture. In the present case, Mr Wong omitted to mention the fact that the target of the paparazzi would be a judge, and that the reason for the harassment of him was to settle old scores.

9. We return to our reservation over the extent of Mr Wong's responsibility for these contempts. In our judgment, we referred to the suggestion that although Mr Wong nominally enjoyed editorial independence, it was the 3rd respondent, Ma Ching Fat, the Chairman of the Board of Directors of the Oriental Press Group Ltd., who had actually instigated the campaign against the Judiciary. We did not find that allegation proved to the requisite standard. But we remained sceptical about Mr Wong's assertion that the campaign was the idea of the Oriental Daily News' editorial team alone. Although Mr Wong and his editorial team may have thought that the Oriental Daily News and other newspapers in the Oriental Press Group had not received fair treatment from the courts, we were sceptical about his assertion that they became so distressed about it that they themselves decided, without any outside instigation or encouragement, to embark on this campaign.

10. We therefore suspect that Mr Wong might have been instructed or at least encouraged to mount this campaign by members of the Board of Directors of the Oriental Press Group Ltd., including Mr Ma, even if the detailed implementation of it was left to Mr Wong and his editorial team. While this suspicion is not sufficient to fix liability on anyone other than Mr Wong, for the purpose of sentencing him, we are obliged to take into account in his favour our suspicion that the impetus for this campaign might not have come from him, and that in this respect he did not enjoy full editorial independence. That does not by any means absolve Mr Wong from serious culpability for these contempts. What he should have done was to have the strength of conviction of any responsible editor, and to have refused to have anything to do with the campaign. It was his willingness to go along with the campaign, and to put it into operation, that he has to be punished for.

11. We should add that none of this was advanced by Mr Cheng as part of Mr Wong's mitigation. That is because Mr Wong has at all times taken full responsibility himself for the contempts. But we have decided to give effect in his favour to what we suspect the true position to have been, because rightly or wrongly we suspect that a deal has been done for Mr Wong to take full responsibility on himself, and in doing so to enable others to be exonerated.

12. Having taken all these circumstances into account, we have concluded that we have no alternative but to sentence Mr Wong to terms of imprisonment of immediate effect. In view of the unprecedented gravity of these contempts, we propose to take a total of 8 months' imprisonment as our starting point. We propose to reduce the sentence to 4 months' imprisonment to reflect the mitigating features which we have sought to identify. Having regard to the terms of the Notice of Motion, Mr Wong has technically been convicted of 8 acts of contempt - 7 being the publication of the various articles complained of, and one being the harassment of Godfrey JA. We propose to treat the publication of the various articles as one contempt. For the contempt of court relating to the publication of the articles, therefore, Mr Wong must go to prison for 3 months. For the contempt of court relating to the harassment of Godfrey JA, Mr Wong must go to prison also for 3 months, but one month of that sentence will be served consecutively to the other sentence of 3 months' imprisonment. That makes 4 months' imprisonment in all, and Mr Wong must surrender himself into the custody of the bailiff who is present as soon as we leave court. We should add that in determining the sentence to be imposed on Mr Wong, we have taken into account the order for costs which we propose to make against him.

13. We turn to the 1st respondent, the Oriental Press Group Ltd. We suspect that this campaign against the Judiciary might have been instigated by the directors of the Oriental Press Group Ltd., and that the editor of the Oriental Daily News has agreed to take full responsibility for the campaign. We said as much when dealing with the 6th respondent. But because we cannot be sure that this is so, we are obliged to ignore our suspicions when deciding what sentence should be imposed on the Oriental Press Group Ltd. Accordingly, we deal with the Oriental Press Group Ltd. on the footing that it was responsible for the publication of the articles complained of because it owned the enterprise which was responsible for the publication of the Oriental Daily News, and that its directors did nothing to stop the campaign.

14. It has been argued that the principle of editorial independence prevented the directors of the Oriental Press Group Ltd. from putting a stop to the campaign waged by the Oriental Daily News. We do not agree. Because our suspicions about editorial interference have not reached a state of certainty, we must assume, for the purposes of sentencing the Oriental Press Group Ltd., that it did not in fact participate in editorial decisions relating to the newspaper. But we wholly reject the suggestion that it is inappropriate for the proprietor of a popular daily newspaper to stand back and do nothing when the newspaper commits the very grave contempt of subjecting the Judiciary to an unparalleled campaign of vilification and abuse to achieve its own ends. This is neither the time nor the place to embark on a debate about the need for editorial independence to ensure a free and vigorous press, or on the role of a newspaper proprietor when it sees journalistic freedom so patently abused as it was in this case. But it has not been suggested that the Oriental Press Group Ltd. did anything to curb the excesses of the newspaper which has been described as the flagship of the Group, and it was that which was one of the reasons which made us suspect that the directors of the Oriental Press Group Ltd. might have been orchestrating this campaign behind the scenes. However, we repeat: this is not the basis on which we propose to sentence the Oriental Press Group Ltd.

15. We have noted the unreserved apology which the Oriental Press Group Ltd. has tendered. We have also read the guidelines (if they can properly be characterized as guidelines) which it has issued as to the form and content of articles appearing in the Oriental Daily News to ensure that the law is not broken in the future. However, it is impossible for us to deal with the Oriental Press Group Ltd. other than by the imposition of a very heavy fine. We bear in mind that in the Group's consolidated accounts for the year ending 31st March 1997, the Group's profit after taxation was in the region of $208 million. We bear in mind also that fines are intended to punish the offender. They are meant to hurt. A fine which is merely an irritating annoyance represents hardly any punishment at all. In all the circumstances of the case, we believe that the proper fine to impose on the Oriental Press Group Ltd. for its contempt of court relating to the publication of the articles complained of in a newspaper with the largest readership in Hong Kong is one of $5 million. In determining that amount, we have taken into account the order for costs which we propose to make against it.

Ruling on costs

16. We turn to the question of costs. The Secretary for Justice applies for an order that the Oriental Press Group Ltd. and Mr Wong pay all the costs incurred by her in this prosecution, including the costs incurred in the prosecution of the 2nd, 3rd, 4th and 5th respondents, who were acquitted of contempt of court. Neither Mr Griffiths nor Mr Cheng sought to argue that the Secretary for Justice should not be awarded those of her costs which can properly be said to be attributable to the prosecution of the Oriental Press Group Ltd. and Mr. Wong. However, Mr Griffiths contended that the Secretary for Justice should not be awarded those of her costs which can properly be said to be attributable to the prosecution of the four respondents who were acquitted. Indeed, he argued that the Secretary for Justice should be ordered to pay their costs.

17. We do not believe that the Secretary for Justice's costs would have been significantly different if only the Oriental Press Group Ltd. and Mr Wong had been prosecuted. That is because much of the argument related to whether the acts complained of amounted to contempts of court in law. But in any event, it was entirely appropriate for the 2nd respondent to have been prosecuted, in view of the particulars given to the Registrar of Newspapers in 1990 and 1992. We assume that those particulars were given on the instructions of the Board of Directors of the Oriental Press Group Ltd., because it is they who must be taken to decide the nature of the businesses run by the Group's operating subsidiaries. It was also appropriate for the 3rd respondent to be prosecuted, in view of the evidence which suggested that he had instigated the campaign against the Judiciary.

18. In the light of these considerations, we think that the acquittal of the 2nd, 3rd, 4th and 5th respondents should be reflected by ordering the Oriental Press Group Ltd. and Mr Wong to pay four-fifths of the costs incurred by the Secretary for Justice in this prosecution. In our view, this is an appropriate case for the Secretary for Justice's costs to be taxed on an indemnity basis, although we think that the order for costs should first be enforced against the Oriental Press Group Ltd. Accordingly, we direct that the order for costs against Mr Wong should not be enforced without a further order from the court.

As for the costs of the respondents who have been acquitted, it was not suggested that they are likely to have incurred legal costs independent of those incurred by the Oriental Press Group Ltd. We doubt whether the arrangements made between the respondents and their solicitors differentiated between the costs for which the respondents would be individually liable, in view of the fact that the Oriental Press Group Ltd. was the ultimate holding company of the 2nd respondent and that the 3rd, 4th and 5th respondents were all directors of companies in the Oriental Press Group. In any event, the 2nd respondent brought this prosecution on itself by permitting the registration of the Oriental Daily News to be in its name. We have also concluded that, despite the respondents' solicitors' letter marked "without prejudice save as to costs" of 8th May, the 3rd respondent's possible responsibility for the contempts was sufficient to justify the inquiry into his conduct which proceeding against him would involve. After all, the Secretary for Justice has a variety of factors to consider in deciding whether to proceed with a prosecution for contempt. Accordingly, the order we make in relation to the costs of the 2nd, 3rd, 4th and 5th respondents is that there be no order in relation to their costs.

Representation:

Mr. Ronny Tong S. C. and Mr. Johannes Chan, instructed by the Department of Justice, for the Secretary for Justice.

Mr. John Griffiths S. C. and Mr. Jason Pow, instructed by Messrs. Hui & Lam, for the 1st-5th Respondents.

Mr. Cheng Huan S. C. and Mr. Clement Lee, instructed by Messrs. Chan & Partners, for the 6th Respondent.

Remarks:
On appeal by 6th Respondent to the Court of Appeal: Appeal against sentence dismissed. Please refer to the Appeal Judgment CACV000161/1998.