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

1995 No. A 3238

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HEADNOTE

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[For a body to be a "public authority" within the meaning of section 7(1) of the Hong Kong Bill of Rights Ordinance (Cap. 383), it is not sufficient for the body merely to be entrusted with functions to perform for the benefit of the public and not for private profit. There must be something in its nature or constitution, or in the way it is run, which brings it into the public domain. Applying that principle to the agreed facts relating to the Hong Kong Polytechnic University, including in particular the fact that the University is financed to a great extent from public funds, the University is a public authority within the meaning of section 7(1).]

1995 No. A 3238

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram : The Hon. Mr. Justice Keith in Chambers

Date of Hearing : 13 May 1996

Date of Handing Down of Judgment in Court : 7 June 1996

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J U D G M E N T

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INTRODUCTION

1. "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.

2. 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.

3. The magazine has another weapon in its armoury. Art. 16 of the Hong Kong Bill of Rights ("the BOR") 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.

4. 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 a summons 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, on the ground that the Statement of Claim does not disclose a reasonable cause of action in their favour. 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.

PUBLIC AUTHORITIES

5. The rights guaranteed by the BOR 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 BOR) binds only "the Government and all public authorities". It follows that Art. 16 of the BOR 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. It so happened that the argument on whether the University was a public authority took up the whole of the day set aside for the hearing of the appeal, and at the end of the argument I decided to reserve judgment on it. This is my judgment on that issue. Although the hearing before me was in chambers, I am handing down this judgment in court to enable it to get the wider currency which the issue deserves.

THE JENNY CHUA CASE

6. This is not the first time in which the Court has had to decide whether the University is a public authority within the meaning of section 7(1). The issue arose in R. v. Hong Kong Polytechnic ex p. Jenny Chua Yee Yen [1992] 2 HKPLR 34. In that case, Mayo J. (as he then was) held that the University was a public authority. At the time, the University had not acquired university status. It was still the Hong Kong Polytechnic. It only became a university when the Hong Kong Polytechnic Ordinance (Cap. 1075) was amended in 1994, and became the Hong Kong Polytechnic University Ordinance ("the HKPUO"). However, I was told that no material change was made apart from the change of status, and it follows that Mayo J.'s decision on the issue is not distinguishable on that ground.

7. Unfortunately, Mayo J. gave no reasons for his decision. All he said was that the status of the Polytechnic as a public authority was "evident from the authorities ... cited [to him]". Those authorities were The Johannesburg [1907] P 65, Griffiths v. Smith [1941] AC 170 and R. v. Manners [1976] 2 WLR 709. However, those authorities were only of assistance to the extent that they gave a working definition of the phrase "public authority". Whether, in the light of that definition, an academic institution like the Polytechnic was a public authority could not be decided in a vacuum. It depended on all the attributes of the Polytechnic, e.g. its constitution, its functions, its funding, and the extent to which its activities were controlled or overseen by government. I do not know whether there was any evidence relating to matters of that kind before Mayo J. If there was, Mayo J. did not explain why he thought that they led to the conclusion that the Polytechnic was a public authority. In the circumstances, while I note Mayo J.'s conclusion, I do not think that I should regard it as of particular assistance to me.

A TECHNICAL PROBLEM

8. However, a technical problem arises here. The question whether the University is a public authority within the meaning of section 7(1) is not, on the face of it, something which can be decided on an application to strike out the Statement of Claim as disclosing no reasonable cause of action. No evidence is admissible on such an application : the Court simply looks at the Statement of Claim and determines whether, on the assumption that the facts pleaded in it are true, the Plaintiff has a cause of action in law (see Ord. 18 r. 19(2)). Since the question whether the University is a public authority is dependent on facts not pleaded in the Statement of Claim, the route by which the parties ask me to decide the issue is not open to them.

9. The solution is close at hand, though. The facts which are relevant to the issue as to whether the University is a public authority have been agreed. Accordingly, the procedural difficulty can be overcome by treating the hearing of that issue as the trial of that preliminary issue on agreed facts. I hope that I will not be accused of fancy footwork, but that is the only way which has occurred to me of striking the right balance between (a) the obvious wish of the parties for me to decide the issue here and now, and (b) the requirements of the Rules of the Supreme Court.

THE MEANING OF "PUBLIC AUTHORITY"

10. There is no definition of "public authority" in the BORO. Nor is the phrase defined in the Interpretation and General Clauses Ordinance (Cap. 1), although the phrase "public body" is defined in it. However, it is defined in Halsbury's Laws of England, 4th ed., vol. 1, para. 6 as

"a person or administrative body entrusted with functions to perform for the benefit of the public and not for private profit".

I shall refer to this definition later in this judgment, but I should add that the editors of Halsbury acknowledge that the meaning of the phrase "may vary according to the statutory context". In that connection, I make two observations :

(i) The BORO is, to use the words of Cons V.-P. in Tam Hing Yee v. Wu Tai Wai [1992] 1 HKLR 185 at p. 189, "in the nature of a constitution". For that reason, it must be given "a generous interpretation" (Lord Wilberforce in Minister of Home Affairs v. Fisher [1980] AC 319 at p. 328G), or "a generous and purposive construction" (Lord Diplock in Attorney-General of The Gambia v. Jobe [1984] AC 689 at p. 700H). Accordingly, if I am to give the phrase a generous and purposive construction, I should have regard to the purposes for which the BORO in general, and section 7(1) in particular, was enacted. The purpose for which the BORO was enacted was "to provide for the incorporation into the law of Hong Kong of provisions of the International Covenant on Civil and Political Rights ['the ICCPR'] as applied to Hong Kong" : section 2(3) of the BORO. Accordingly, it is to the ICCPR to which I must look to identify the purpose of section 7(1). Unfortunately, I cannot derive any assistance from the ICCPR. The purpose of the ICCPR has been described as "the protection of the individual against the positive actions of the state which infringe political rights".( What the ICCPR does not identify is what constitutes the state for this purpose. It is silent on what organs of the state it is intended to bind. Moreover, the assistance to be derived from the jurisprudence under the ICCPR and other international human rights instruments has been described as "rather limited" : Byrnes, op. cit., p. 98. Since I cannot discern what the phrase "public authority" in section 7(1) was intended to cover, I cannot apply a purposive construction to it.

(ii) It is plain that the phrase "public authority" was intended to refer to something other than the Government. Otherwise, the words "and all public authorities" in section 7(1) would be otiose. I take the phrase "the Government" to refer to the legislative, executive and judicial organs of the state. Accordingly, the phrase "public authority" refers to bodies which are not a part of the legislative, executive and judicial branches of the Government of Hong Kong.

11. Against that background, I return to the definition of "public authority" in Halsbury's Laws. The definition focuses attention on the functions of the body and the purpose for which those functions are performed. I am not convinced that that is a sufficiently comprehensive definition. It takes no account of what seem to me to be a number of highly significant facts, namely the nature of the body, its constitution and its links with government. A private charity could be a public authority on the definition adopted in Halsbury's Laws, and yet I do not suppose anyone would say that it was invested with powers of the kind which would make it a public authority. In my view, for a body to be a public authority within the meaning of section 7(1) of the BORO, it is not sufficient for it to be entrusted with functions to perform for the benefit of the public and not for private profit : there must be something in its nature or constitution, or in the way in which it is run, apart from its functions, which brings it into the public domain. It is unnecessary for me to identify what that might be : it may take the form of public funding, of a measure of governmental control or monitoring of its performance, or some form of public accountability. But something which brings it into the public domain there must be.

THE UNIVERSITY

12. In these circumstances, I turn to the facts which have been agreed as correct for the purposes of this appeal. The University is a statutory corporation established by 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.

13. Mr. Wong Hin Lee for the publisher and editor of the magazine argues that the University is "closely associated with, if not subject to the control of, the Government". He points out that

(a) the governing and executive body of the University is the Council (section 6),

(b) apart from the appointment of staff, any question before the Council at any meeting has to be decided by a majority of votes of the members present (section 10(7)),

(c) 21 out of the Council's 29 members, i.e. a majority, are appointed by the Governor (section 10(1)), and

(d) in his capacity as the Chancellor of the University, the Governor receives the University's financial reports and statements (section 16(1)).

But none of that means that the University is subject to governmental control. The Governor's power to appoint Council members should be regarded as an exercise by him, not of operational control over the University's affairs, but rather of the power to appoint the most suitable persons for the job. And the formal powers which he exercises as Chancellor of the University have more to do with patronage by a prominent public figure of an institution of higher learning than with control. Indeed, the indications are that the University is entirely independent of government control. No more than two of the Council members appointed by the Governor may be public officers (section 10(1)(d)), and there is nothing in the HKPUO which accords to any public officer anything remotely akin to a statutory power of direction.

14. On the other hand, 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. I was also asked by both parties to treat the facts set out in the Government's publication "Hong Kong 1996" as correct for the purposes of this appeal. That records (p.138) that public funds cover virtually the full cost of "tertiary institution campuses". I suppose that that could refer only to university buildings, but since the context in which the statement appeared was "Funding of Education", it is, I think, more probable that it refers to all the costs of running a university.

CONCLUSION

15. While I accept that the University is not subject to government control, the nature of its functions, the purpose for which those functions are performed and the fact that it is funded to a great extent from public funds lead me to conclude that the University is a public authority within the meaning of section 7(1) of the BORO. Having reached that conclusion, I note that the University is treated as a "public body" for the purposes of the Prevention of Bribery Ordinance (Cap. 201). Although of no direct assistance to me, that gives me a measure of comfort in the conclusion I have reached.

16. It follows that the publisher and editor of the magazine can rely on Art. 16 of the BOR as well as the common law to contend that these proceedings should be struck out. The hearing of argument on those issues will take place on a date to be fixed after consultation with counsel's diaries. I shall deal on that occasion with any costs implications which arise as a result of this judgment.

17. There is one final matter I wish to add. This was a case in which whichever side lost before the master was going to appeal. Since an appeal from a master to a judge takes the form of a rehearing, what was the point of the master considering the case at all? The Rules of the Supreme Court recognise that there may be cases in which a hearing before a master should be dispensed with. Thus, Ord. 32 r. 12 enables a master to refer to a judge any matter which he thinks should properly be decided by a judge. That is a device which in my experience could be used more often than it is. Both Mr. Wong and Mr. Joseph Fok for the University and its president accepted that this would have been an appropriate case for the summonses to be referred directly to a judge. That was especially so in this case since the issue to which this judgment relates was one which Master Cannon could not have decided for herself, because unlike me she would have been bound by Mayo J.'s decision in the Jenny Chua case. I take this opportunity to remind the profession that in those cases where an appeal is likely to be lodged whatever the decision of the master, costs will be saved in the long run if use is made of Ord. 32 r. 12.

( Byrnes, "The Hong Kong Bill of Rights and Relations between Private Individuals", in Chan and Ghai, "The Hong Kong Bill of Rights : A Comparative Approach", 1993, p. 74

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