Hong Kong Polytechnic University and Others v. Next Magazine Publishing Ltd and Another

1995 No. A3238

HEADNOTE

[(i) A university which is, for the most part, publicly-funded, and which confers diplomas and degrees recognised for employment purposes, for admission to further studies and as professional qualifications, should be open to uninhibited public criticism. Legitimate public debate about its activities is liable to be stifled if its critics fear the institution of proceedings for defamation in the event of exposing malpractice. The institution of such proceedings by such a university is therefore contrary to the public interest, and a disproportionate restriction on the right to freedom of expression, and its claim should be struck out both under the common law and as infringing Art. 16 of the Bill of Rights.

(ii) The circumstances in which the law permits a departure from the rights guaranteed by the Bill of Rights are extremely limited, but in those exceptional cases where such a departure is permitted, no infringement of the Bill of Rights takes place : Association of Expatriate Civil Servants of Hong Kong v. Secretary for the Civil Service (HCMP 3037/94) explained.]

1995 No. A3238

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

______________

_______________

Coram : The Hon. Mr. Justice Keith in Chambers

Dates of Hearing : 28 and 29 November 1996

Date of Delivery of Judgment in Court : 10 December 1996

_______________

J U D G M E N T

_______________

1. INTRODUCTION

In this interlocutory appeal, both sides claim the high moral ground. The Plaintiffs seek to have their good name and reputation restored to them, which they say has been unfairly tarnished by the Defendants. The Defendants assert that the right to freedom of expression and the important role played by the press as public watchdog means that they should be permitted to speak out on matters of public interest without fear of facing defamation proceedings.

2. The background to this appeal appears from the judgment I handed down on 7th June 1996. That judgment is now reported in [1996] 6 HKPLR 117. For ease of reference, I propose to set out the relevant part of that judgment here :

"'Next' is a weekly magazine published in Hong Kong. The issue published on 2nd September 1994 contained an article about the Hong Kong Polytechnic University. The University was alleged, amongst other things, to have turned a blind eye to the lack of academic qualifications on the part of its lecturers. The University, its president and one of its lecturers have now commenced libel proceedings against the publisher of the magazine and its editor.

However, the parties are now engaged in an important and far-reaching interlocutory skirmish. The magazine argues that the public interest requires bodies like the University to be subject to close scrutiny by a free and independent press. It would be a serious matter if the press felt inhibited in performing that function by the possibility of libel proceedings. Relying on Derbyshire County Council v. Times Newspapers Ltd. [1993] AC 534, the magazine claims that, to the extent that the proceedings are brought by the University and its president, they infringe the common law, because they enable the University to stifle legitimate debate about its activities.

The magazine has another weapon in its armoury. Art. 16 of the Hong Kong Bill of Rights accords to the magazine the right to freedom of expression. Although that right may be subject to restrictions, those restrictions have to be lawful and only to the extent that they are necessary to protect 'the rights and reputations of others'. The magazine argues that, to the extent that these proceedings are brought by the University and its president, they infringe Art. 16, because they are not necessary for the protection of the rights and reputation of the University.

The route by which the magazine chose to argue these points was unusual. What the magazine and its editor chose to do was to issue summonses under Ord. 15 r.6(2) seeking orders that the University and its president cease being parties to the action. The more appropriate course would have been to issue summonses under Ord. 18 r.19(1) to strike out the claim, to the extent that the claim was being made by the University and its president. Be that as it may, the summonses eventually came before Master Cannon on 2nd April 1996. She dismissed the summonses, and the publisher of the magazine and its editor now appeal against that order. The parties are agreed that I should treat this appeal as if it was an appeal against orders under Ord. 18 r.19(1) refusing to strike out the Statement of Claim.

The rights guaranteed by the Bill of Rights are capable of only limited enforcement. That is because section 7(1) of the Hong Kong Bill of Rights Ordinance (Cap. 383) ('the BORO') provides that the Ordinance (which incorporates the Bill of Rights) binds only 'the Government and all public authorities'. It follows that Art. 16 of the Bill of Rights can only be relied on by the magazine to strike out the claims of the University and its president if the University is a public authority within the meaning of section 7(1). I heard argument on that issue first. If I decided that the University was not a public authority, all the arguments on Art. 16 would fall away."

At the end of my judgment, I concluded that the University is a public authority within the meaning of section 7(1) of the BORO. It followed that the publisher and editor of the magazine could rely on Art. 16 of the Bill of Rights as well as the common law to contend that these proceedings should be struck out. This judgment is my judgment on those issues.

THE COMMON LAW

3. In the Derbyshire case, a local authority brought an action for damages for libel in respect of two newspaper articles which had questioned the propriety of investments made for its superannuation fund. It was held that the action could not be maintained. The House of Lords reaffirmed the well-known principle that "a trading corporation is entitled to sue in respect of defamatory matters which can be seen as having a tendency to damage it in the way of its business" (p.547B). However, the House of Lords said that there were features of a local authority which distinguished it from other types of corporation, whether trading or non-trading :

"The most important of these features is that it is a governmental body. Further, it is a democratically elected body, the electoral process nowadays being conducted almost exclusively on party political lines. It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism. The threat of a civil action for defamation must inevitably have an inhibiting effect on freedom of speech ... [N]ot only is there no public interest favouring the right of organs of government, whether central or local, to sue for libel, but ... it is contrary to the public interest that they should have it. It is contrary to the public interest because to admit such actions would place an undesirable fetter on freedom of speech" (pp.547E-F and 549B-C).

The reason why such actions might fetter free speech was explained as follows :

"Quite often the facts which would justify a defamatory publication are known to be true, but admissible evidence capable of proving those facts is not available. This may prevent the publication of matters which it is very desirable to make public" (p.548D-E).

4. There are many features which distinguish the University from a democratically elected local authority. But the essential feature of the University is that it operates in the public sphere. As I said in my judgment of 7th June 1996 :

"The University is a statutory corporation established by the Hong Kong Polytechnic University Ordinance (Cap. 1075) ('the HKPUO'). It is one of the seven institutions of higher education in Hong Kong. Its objects are 'to provide for studies, training and research in technology, science, arts and other subjects of learning' : section 3(3) of the HKPUO. It confers diplomas and degrees which are recognised by the Government and the private sector for employment purposes and as professional qualifications, and by overseas tertiary institutions for admission to further studies. It performs those duties for the benefit of the public and not for private profit."

I added that the University is, for the most part, publicly-funded. Some of its income comes from tuition fees, private grants and consultancies, but I was asked to assume for the purposes of this appeal that the bulk of its funds comes from the University Grants Committee.

5. I have concluded that, although the University is not a democratically elected governmental body, the nature of its activities is such that it is of the highest public importance that, like a local authority, it should be open to uninhibited public criticism. I do not overlook the fact that as an institution of tertiary education it has a reputation as an academic institution which it has a legitimate reason to seek to protect. Its viability depends on its ability to attract good administrators, researchers and teaching staff as well as a sufficient number of students. I accept also that it is not in the public interest that unjustified attacks be permitted to undermine its ability to perform its statutory functions. But that was recognised in the Derbyshire case :

"Similar considerations can no doubt be advanced in connection with the position of a local authority. Defamatory statements might make it more difficult to borrow or to attract suitable staff and thus affect adversely the efficient carrying out of its functions" (p.547D-E).

The point is that a higher principle is at stake, namely the inhibiting effect of the threat of an action for defamation on the freedom of the press to comment on the activities of bodies which operate in the public sphere.

6. This limited immunity from action which the common law accords to the press imposes on the press an obligation to engage in public debate in a responsible and measured fashion. Where investigative journalism is concerned, that immunity can only relate to topics which it is in the public interest to disclose. The article concerned, and a translation of it into English, is set out in a schedule to the Statement of Claim. Having read it as a whole, I am satisfied that the topics which it covered, namely the supposed lack of qualifications of some of the University's academic staff, and the blind eye which the University is supposed to have turned to the problem, were in the public interest to disclose.

7. Accordingly, the conclusion which I have reached is that it is contrary to the public interest for the present proceedings to be maintained by the University.

ART. 16 OF THE BILL OF RIGHTS

8. There is no difference in principle between the common law of England on the subject of freedom of expression and Art. 10 of the European Convention on Human Rights ("the Convention"). That was what Lord Goff of Chieveley said in Attorney-General v. Guardian Newspapers Ltd. (No. 2) [1990] 1 AC 109 at pp.283-284. It was repeated by the House of Lords in the Derbyshire case at p.551F-G. It is common ground that for all purposes material to the present appeal, there is no difference between Art. 16 of the Bill of Rights and Art. 10 of the Convention. Accordingly, to the extent that these proceedings are being maintained by the University, they infringe the right to freedom of expression guaranteed by Art. 16 of the Bill of Rights, and the University must cease to be a plaintiff in these proceedings for that reason as well. However, the analysis under the Bill of Rights is, I think, slightly different to the analysis of the position at common law, and I propose briefly to address the question whether, independently of the common law, the right of the University to maintain this action is outlawed by the Bill of Rights.

9. Arts. 16(2) and (3) of the Bill of Rights provide :

"(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

(3) The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary -

(a) for respect of the rights or reputations of others; or

(b) for the protection of national security or of public order (ordre public), or of public health or morals."

The law of defamation constitutes a prima facie infringement of the right to freedom of expression guaranteed by Art. 16(2). Thus, if a public authority wishes to bring an action for defamation, that claim can only be maintained if it is sanctioned by Art. 16(3), i.e. if the claim is necessary to protect its reputation. That gives effect to Art. 14 of the Bill of Rights, which provides that no one "shall be subjected ... to unlawful attacks on his honour and reputation".

10. The special position of the press in the context of freedom of expression is well-recognised. In The Observer and The Guardian v. United Kingdom (1991) 14 E.H.R.R. 153, the European Court of Human Rights summarised what it described in para. 59 as the "major principles" as follows :

"(a) Freedom of expression constitutes one of the essential foundations of a democratic society ... [It] is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established.

(b) These principles are of particular importance as far as the press is concerned. Whilst it must not overstep the bounds set, inter alia, in the 'interests of national security' or for 'maintaining the authority of the judiciary', it is nevertheless incumbent on it to impart information and ideas on matters of public interest. Not only does the press have the task of imparting such information and ideas : the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of 'public watchdog'."

It follows that the right to bring an action for defamation will not always be available to a public authority in Hong Kong. A common thread which runs through the cases concerned with Art. 10 of the Convention is that an action for defamation will not be a permissible restriction on the right of the press to freedom of expression if its effect is to stifle legitimate public debate on a topic of serious public interest.

11. I have concluded that to permit the University to maintain this action for defamation would be a disproportionate restriction on the right of the magazine to expose the malpractice which it alleges. My reasons in brief are as follows :

(i) The article concerned a topic of serious public interest. For a tertiary institution entrusted with responsibilities for teaching and research, the qualifications and competence of its academic staff are fundamental to an appreciation of whether it is discharging its responsibilities properly.

(ii) Although the threat of an action for defamation did not in this case deter the magazine from publishing the article, the threat of such an action could have an inhibiting effect on other sections of the press from publishing a similar article. In defending an action for defamation, the need to prove the truth of what is alleged can often arise because the common law defences of fair comment and qualified privilege may not be available. It may be that the defence of fair comment is available to the magazine in this case, but in those cases where the common law defences are not available, the need to prove the truth of what is alleged may well have a significant deterrent effect. As was noted in the Derbyshire case, admissible evidence to prove the facts asserted may not be available. Thus, the need to prove the truth of what is asserted to establish the common law defence of justification may well deter a would-be critic from voicing criticism, even if the criticism is true, because of doubt whether it can be proved or because of concern at the expense of having to do so.

(iii) To deny the University the right to maintain this action will not leave it without a remedy. The remedies available to it are the same as those discussed by the Court of Appeal in the Derbyshire case [1992] 1 QB 770 at pp.816E-817E. I would add that it is open to the University to refute the allegations made in the article by issuing public statements of its own.

12. For these reasons, I hold that to permit the University to maintain this action is not a permissible restriction on the right to freedom of expression guaranteed by Art. 16(2) of the Bill of Rights.

THE POSITION OF THE UNIVERSITY'S PRESIDENT

13. Subject to the control of the University's Council, the president of the University is vested with "the management, conduct and administration of the University and the discipline of students" : section 8(1)(a) of the HKPUO. The president of the University was not referred to in the text of the article at all. The only reference to him was a photograph of him with a caption that he declined to comment. Mr. Wong Hin Lee for the magazine argues that in these circumstances the 2nd Plaintiff should be regarded as suing in his representative capacity as the president of the University. Accordingly, if the University cannot maintain this action, the president cannot either.

14. I cannot go along with this argument. The president cannot be regarded as suing in his representative capacity. It is plain from the Statement of Claim that the president is claiming that he has personally been defamed. His complaint is that the article accused him of turning a blind eye to the lack of qualifications of members of the academic staff. That is what is pleaded as being the natural and ordinary meaning of the words used. I therefore hold that the president is entitled to maintain this action against the magazine.

TWO MISCELLANEOUS MATTERS

(i) Infringement. In the course of the hearing, there was some discussion as to whether the law of defamation constitutes a justifiable infringement of the Bill of Rights, or a permissible restriction on the rights guaranteed by it. The position is clear. The circumstances in which the law permits a departure from the rights guaranteed by the Bill of Rights are extremely limited, but in those exceptional cases where such a departure is permitted, no infringement of the Bill of Rights takes place. Coincidentally, the issue was addressed in the recent judgment of the Court of Appeal in The Association of Expatriate Civil Servants of Hong Kong v. The Secretary for the Civil Service (CA 260/95), an appeal from a judgment of mine (HCMP 3037/94). The Court of Appeal thought that I had been saying that there were circumstances in which infringements of the Bill of Rights are permissible.

15. I do not, of course, question in any way the views of the Court of Appeal, but I said no such thing. Indeed, I am surprised that my judgment was read in that way, especially as I had said in that part of my judgment in which I had identified the relevant principles to be applied :

"A departure from the right protected by Art. 21(c) does not amount to an infringement of Art. 21(c) if the departure can be justified."

Having found that certain features of the Government's localisation policy amounted to a "prima facie infringement" of Art. 21(c), I then addressed the question of whether the departure from Art. 21(c) could be justified. The word "infringement" on p.87 of my judgment referred (and could only have been construed on a fair reading of the judgment as a whole as referring) to the prima facie infringement which I had identified. I note that that is precisely how the editors of the Bill of Rights Bulletin read my words : see Vol. 3, No. 4, p.59. Counsel for the University, Mr. Joseph Fok, who was junior counsel for the Respondents in the A.E.C.S. case, was kind enough to tell me that his side had not for one moment read my words in the way in which the Court of Appeal had. It is to be noted that in their desire to lay to rest the heresy they thought I was preaching, the Court of Appeal does not appear to have addressed the crucial issue, upon which views may well differ, which was whether in the unique circumstances of the case a departure from the rights guaranteed by Art. 21(c) was justified.

16. Accordingly, I hold that if the University had been permitted to maintain this action, the action would have amounted to a permissible restriction on the rights guaranteed by Art. 16, and not a justifiable infringement of it.

(ii) Procedure. In my earlier judgment, I said that the parties were agreed that I should treat this appeal as if it was an appeal against an order under Ord. 18 r.19(1) refusing to strike out the Statement of Claim. Two refinements to that are needed. First, it is an appeal against orders refusing to strike out the claims only of the University and its president. Secondly, it is necessary to identify the particular provision in Ord. 18 r.19(1) on which the magazine relies. I do not think that Ord. 18 r.19(1)(a) is the appropriate rule. A reasonable cause of action in defamation is pleaded on the part of the University and its president. The issue has been whether public policy or Art. 16 prevents them from maintaining it. I think that an attack on these proceedings on those grounds is more logically made under Ord. 18 r.19(1)(d), or even more logically under the inherent jurisdiction of the Court.

17. On that footing, evidence was admissible on the appeal. Mr. Wong told me that he did not wish to file any evidence. When he had elected not to file any evidence, Mr. Fok did likewise. I mention this only lest it be thought that my view as to the true classification of the magazine's arguments put the parties at a disadvantage.

18. I have borne in mind that the power to strike out a claim is an exceptional one. It is only in plain and obvious cases that resort should be had to this summary procedure. I have therefore approached this appeal on the basis that the claims of the University and its president should be struck out only if, on a view of the facts most favourable to them, it is incontestable that public policy or Art. 16 prevents them from maintaining their claims. In relation to the University, I have concluded that it is incontestable that both public policy and Art. 16 prevents it from maintaining its claim.

CONCLUSION

19. For these reasons, this appeal must be allowed. I set aside the order made by Master Cannon on the magazine's summons filed on 19th October 1995 relating to the University, and I direct that the University ceases to be a party to these proceedings. However, the order made by Master Cannon on the magazine's summons filed on 20th March 1996 relating to the University's president must stand. I shall hear the parties on costs, but my provisional view is that the University ought to pay to the Defendants their costs of and occasioned by the summons filed on 19th October 1995 and of the appeal from the order made on that summons, but that the Defendants ought to pay to the president of the University his costs of the appeal from the order made on the summons filed on 20th March 1996. In my judgment on the issue as to whether the University is a public authority within the meaning of section 7(1) of the BORO, I reserved the question of the costs incurred in the resolution of that issue. My provisional view is that the Defendants' costs of that issue should be paid by the University.

20. Finally, the arguments on this appeal were heard in chambers. I have decided that the issues discussed in this judgment are sufficiently important to warrant the delivery of this judgment in court, so that the views I have expressed on the tension between the right to freedom of expression and the right to protect one's reputation can receive a wider currency.

Representation:

Mr. Joseph Fok, instructed by Messrs. Johnson Stokes & Master, for the Plaintiffs.

Mr. Wong Hin Lee and Mr. Johannes Chan, instructed by Messrs. T.S. Tong & Co., for the Defendants.