Re Hongkong Standard Newspaper

HCMP000012/1976

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Coram: Huggins & Pickering, JJ.A. & McMullin, J.

Date of Judgment: 26th March 1976.

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JUDGMENT

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Huggins, J.A.:

1. This is an application by the Attorney General for an order of committal for contempt of court against the publishers of the Hong Kong Standard Newspaper and against the Editor of that newspaper. The subject of complaint is the publication in the issue of 11th December 1975 of the following report of an alleged robbery, together with a man's photograph above the caption "Suspect":

The particular grounds of complaint are set out as follows:

Counsel for the Applicant did not rely upon Ground (iii) separately but said it was inextricably bound up with the other two grounds. It is sufficient to say that we do not think the article does assume the guilt of the person depicted in the photograph.

2. The gravamen of the charge against the Respondents is the juxtaposition of the article and the photograph and the contention is that at the time of publication the issue of the identity of the perpetrator of the alleged crime might well have had to be decided by a court of law. Counsel rightly submitted that it would be enough if he established a tendency to prejudice the fair trial of the person then in custody awaiting trial, whether in favour of the Crown or in favour of the defendant. Such prejudice, the argument went on, might arise here in either of two ways, by influencing the judge of fact in the court of trial (be that a magistrate, judge or jury) or by influencing and identifying witness.

3. We do not think any real dispute or doubt exists as to the law in cases such as this. It was conceded that no intent to cause prejudice had been alleged. The test is a purely objective one and we must be satisfied that it should have been apparent to a reasonable man that a question of identity might arise and that publication of the photograph would prejudice the decision of that question: R. v. Daily Mirror ex parte Smith 1927 1 K.B. 845. Mr. Mills-Owens went on to contend that even should the Applicant succeed in satisfying that test there was this further hurdle, that there had to be a real risk, as opposed to a remote possibility, of prejudice (Reg. v. Duffy 1960 2 Q.B. 188) and the court would not order committal where the risk of prejudice was slight. It is arguable that this second point cannot be satisfactorily considered in isolation from the first, because where the risk is slight a reasonable man might well not appreciate that prejudice could arise. Be that as it may, on the facts of this case we are not persuaded that the identity of the alleged robber could reasonably be anticipated to be a live issue. It is true that in Hong Kong even the most hopeless cases are frequently contested with wild allegations of perjury against patently honest prosecution witnesses, but that does not mean that this Court ought to intervene in every case in anticipation that an unreasonable defence will be raised. In the present case the available information disclosed that the person arrested was said to have taken a meal in the restaurant before committing the alleged robbery, to have been chased from the restaurant by an employee until he (the suspect) was arrested and to have been arrested with the proceeds of the alleged robbery in his possession. It was never suggested that the article by itself would have amounted to a contempt and we are not satisfied that the addition of the photograph justifies the intervention of this Court.

26th March 1976.

Representation: