The Secretary for Justice v. The Oriental Press Group Ltd. and Others
Read the full judgment text of HCMP 407/1998 on BabelCite. This High Court CFI judgment was delivered on 23 June 1998.
1. The Oriental Daily News is the most popular newspaper in Hong Kong. Towards the end of last year, it embarked on a campaign against the Judiciary. The campaign has resulted in these proceedings for contempt of court. So far as we know, this is the first prosecution in Hong Kong's legal history of a contempt of court consisting of "scandalising the court" and "interfering with the administration of justice as a continuing process".
Cited by 5 cases · Cites 3 cases
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HCMP000407/1998 HCMP 407/1998 Headnote [(1) A person, firm or company cannot be convicted of the criminal offences of scandalising the court or interfering with the administration of justice unless the facts establish beyond a reasonable doubt that there was a real risk, as opposed to a remote possibility, that the acts complained of would undermine public confidence in the due administration of justice in the minds of at least some of the persons who were likely to become aware of the acts complained of. (2) The offences of scandalising the court and interfering with the administration of justice do not require proof that the alleged contemnor intended to undermine public confidence in the due administration of justice. It is sufficient if he intended to do the acts which are said to constitute the contempt. (3) Upon the assumption that making the scandalising of the court a criminal offence amounts to a restriction on the right of freedom of expression, that restriction was (a) for the protection of "public order (ordre public)" within the meaning of Art. 16(3)(b) of the Bill of Rights because it was for the protection of the rule of law to the extent that the rule of law is eroded if public confidence in the due administration of justice is undermined, and (b) necessary for the achievement of that objective. Accordingly, the criminal offence of scandalising the court has not been abolished or modified by the Bill of Rights.] IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE (MISCELLANEOUS PROCEEDINGS NO. 407 of 1998) ___________ IN THE MATTER of an application by the Secretary for Justice for an Order of Committal
___________ Coram : Hon Chan, CJHC and Keith J. Dates of Hearing : 11, 12, 13, 14, 15th and 18 May 1998 Date of Delivery of Judgment : 23 June 1998 _______________ J U D G M E N T ________________ Chan C.J.H.C. and Keith J. (giving the judgment of the court): Introduction 1. The Oriental Daily News is the most popular newspaper in Hong Kong. Towards the end of last year, it embarked on a campaign against the Judiciary. The campaign has resulted in these proceedings for contempt of court. So far as we know, this is the first prosecution in Hong Kong's legal history of a contempt of court consisting of "scandalising the court" and "interfering with the administration of justice as a continuing process". 2. The gravity of the alleged contempts is reflected in the language which leading counsel for the Secretary for Justice chose to use in the course of his submissions:
The parties 3. The 1st respondent is a public listed company which holds 99% of the shares in the Oriental Daily News Limited which in turn holds 99% of the shares in the 2nd respondent. The 2nd respondent became the registered printer and publisher of the Oriental Daily News in January 1990 and its registered proprietor in October 1992. The newspaper has a readership of over 2.3 million readers which, it was said, represents about 53% of the newspaper market in Hong Kong. The 3rd respondent is and was at the material times the Chairman of the Board of Directors of the 1st respondent. The 4th and 5th respondents are and were at the material times members of staff of the 1st respondent and the only two directors of the 2nd respondent. The 6th respondent was, at the material times, the Chief Editor and Controller of the newspaper. Since 3rd March 1998, he has retained the title of Controller but has been relieved of his responsibility as Chief Editor. The relationship between the 1st respondent and the 2nd and 6th respondents is not altogether straightforward. We shall go further into this at a later stage. The background 4. The events which gave rise to the attacks on the Judiciary in the Oriental Daily News were a series of cases in which the Oriental Daily News or sister newspapers in the Oriental Press Group were involved. One series of cases related to a photograph of a well-known singer, and the other related to a number of classifications by the Obscene Articles Tribunal ("the OAT") of various photographs published in the Oriental Daily News as indecent. It is necessary to identify the course of these proceedings, in order to explain the subsequent reaction of the Oriental Daily News to them. 5. The Faye Wong photograph case. Towards the end of 1996 and at the beginning of 1997, the 1st respondent and one of its subsidiaries the Oriental Sunday Publisher Limited commenced proceedings against Apple Daily Limited for breach of copyright. The subject matter of the copyright was a photograph of a popular Cantonese singer called Faye Wong. It was a photograph of the singer taken by a reporter of the Oriental Daily News at the Beijing Airport, apparently without the singer's consent when she was waiting for her luggage. The photograph was subsequently used on the front cover of the Sunday Weekly which was published by the Oriental Sunday Publisher Limited. The Apple Daily News published the front cover of the Sunday Weekly showing the photograph in question. 6. On 3rd February 1997, Rogers J entered judgment in favour of the 1st respondent and the Oriental Sunday Publisher Limited against Apple Daily Limited for breach of copyright. On 7th April 1997, he awarded $8,001 as damages in favour of the 1st respondent and the Oriental Sunday Publisher Limited but ordered them to pay the costs of the action to Apple Daily Limited, apparently because there was either an offer to pay or an actual payment into court by Apple Daily Limited of a sum which was more than the sum awarded. Aggrieved by the award and the order for costs, the 1st respondent and the Oriental Sunday Publisher Limited appealed. On 19th September 1997, the Court of Appeal, with Godfrey JA delivering the judgment of the court, dismissed the appeal against the award of damages. Towards the end of his judgment, Godfrey JA said:
On 9th December 1997, the Court of Appeal set aside Rogers J's order for costs and ordered that there be no order as to costs in the court below and that the 1st respondent and the Oriental Sunday Publisher Limited be responsible for two-thirds of the costs of the appeal. On 8th January 1998, the Court of Appeal refused their application for leave to appeal to the Court of Final Appeal. Subsequently the Court of Final Appeal granted leave to appeal. 7. The cases involving the Obscene Articles Tribunal. In June 1996, the Oriental Daily News on two different dates published several photographs of women in the nude. These photographs were classified as indecent by the OAT. The same photographs were published in another local Chinese newspaper and were also classified as indecent. There was a successful appeal by that newspaper and the case was remitted to the OAT. On re-classification, they were again classified as indecent. 8. Meanwhile, an appeal was lodged by the 2nd respondent to the then High Court. It was dismissed. There was a further appeal to the Court of Appeal. On 28th October 1997, a differently constituted Court of Appeal consisting of the Chief Judge and two other judges dismissed the appeal. The Court accepted the submission of the 2nd respondent that the OAT must give reasons for its classification but held that those given by the OAT in that case were sufficient. On 10th December 1997, the Court of Appeal refused leave to the 2nd respondent to appeal to the Court of Final Appeal. Leave was subsequently granted by the Court of Final Appeal. The rumblings of discontent 9. The articles which are the subject-matter of these proceedings were preceded by a series of articles on the same topics. The Secretary for Justice does not rely on these earlier articles as part of the alleged contempts, but they set the tone for what was to come. 10. The first article was published in the Oriental Daily News on 22nd September 1997. This was published several days after the Court of Appeal dismissed the appeal by the 1st respondent and the Oriental Sunday Publisher Limited in the copyright case. The article criticised the judgment delivered by Godfrey JA and contained some arguments purporting to illustrate that the decision was wrong. However, it alleged that the judge equated the reporter who took the photograph of the singer with the paparazzi involved in the pursuit of Princess Diana. The article also contained certain remarks which described Godfrey JA as "ignorant and unreasonable", "ridiculous and arbitrary", "prejudiced" against the 1st respondent and "arrogant and arbitrary". Apart from these personal attacks on the judge, there were remarks which accused the Judiciary of being unfair to the 1st respondent. It also alleged that since 1995, the British Hong Kong Government had intensified its persecution of the Oriental Press Group and launched a systematic assault on it through the police and the OAT suggesting that the latter was being used as a tool of persecution. 11. This was the first attack against the Judiciary. It can be seen that it started with an attempt to argue that the judgment of the Court of Appeal was not correct but then degenerated into making irrational accusations. The remarks on the judge were offensive to say the least and the insinuation against the OAT was quite disturbing. The allegation that the judge had compared the reporter with a paparazzo is clearly a distortion of the judgment as the judge made no such comparison. 12. On 30th October 1997, the Oriental Daily News published a special feature article which was entitled "Special Page on the Denouncement of the Tribunal". This was two days after the Court of Appeal had dismissed the appeal by the 2nd respondent in the OAT case. The article referred to previous cases in which the newspaper was summonsed for publishing materials which were classified as indecent and how these matters were dealt with by the OAT and the High Court. There were remarks alleging that the OAT was "apparently hostile and discriminatory" to the Oriental Press Group and had continued to "harass" it; and that the Group had been "severely persecuted and attacked" by the OAT for over two years. 13. On the following day, 31st October 1997, the newspaper published several pages of photographs which were accompanied by short articles and captions. These photographs showed human bodies in the nude and some sketches of a similar nature. They included several of the photographs which had been classified as indecent by the OAT whose classification was confirmed by the court. The re-publication of these photographs was nothing less than a defiance of the court's decision and a challenge to the rule of law. There was an article which referred to various incidents in which it was alleged that the previous Government had been persecuting the 1st respondent. It repeated the allegation that the OAT was a tool used by the British-Hong Kong Government to attack and harass the 1st respondent and had not stopped doing so since 1st July 1997. The OAT was described as a "colonial remnant" which enjoyed supreme power in Hong Kong. The article also referred to the "unscrupulous" conduct of a previous Chief Secretary, Sir David Ford, and the last Governor, Christopher Patten, in their dealings with the Oriental Press Group. The impression one gets from reading the article is that according to the newspaper, the last Governor and English officials had tried to obtain advantages from the Ma family (who control the Oriental Press Group), and when that failed, the Oriental Press Group including its former chairman was constantly persecuted and the OAT was used to continue such persecution even after 1st July 1997. 14. From 1st November until 7th November, there were articles published in the newspaper almost every day, sometimes several articles on one day. These articles consisted of editorials, letters from readers, survey results on the working of the OAT and various comments from local and overseas commentators. In an article published on 1st November 1997, it set out a letter which purported to come from a reader which referred to the OAT's "barbarous measures of persecution". On 4th November 1997, there was published a list of the names of all the 157 members of the OAT with an article which contained strong criticisms of the OAT describing its members as "stupid, despicable and ignorant". In one of the articles published on 6th November 1997, it referred to the OAT as "a criminal department" and "persecuting press freedom shamelessly". It described each and every member of the OAT as a public enemy of freedom and society and "scumbags" which hindered the progress of human development. It alleged that one of the editors of the newspaper was then receiving psychological counselling and treatment and announced that the newspaper would pursue the OAT for compensation. 15. On 10th November 1997, the gossip cum critics column called Eastern Café in the newspaper changed its name to Kung Fu Tea. On 13th November 1997, the newspaper published an article which contained statements attacking the OAT and referred to its members as "dogs and bitches", "tortoises having retreated into their shells", "having to run for cover like a rat in the gutter", "scumbags", "public enemy of freedom of the press and a public calamity to the six million citizens". 16. It can be seen that during the first part of this campaign, the newspaper had already adopted the tactics of firing salvoes of abusive and scurrilous attacks on the judges and members of the OAT. There was even a veiled threat to members of the OAT whose names were made public. The OAT was accused to be a tool for harassing and persecuting the Oriental Press Group. 17. The attacks subsided for a short while. On 25th November 1997, the 2nd respondent lodged an application for leave to appeal to the Court of Final Appeal in the OAT case. On 9th December 1997, the Court of Appeal set aside the costs order of Rogers J in the copyright action and varied the order as referred to earlier. On the following day, another division of the Court of Appeal refused leave to appeal to the Court of Final Appeal in the OAT case. These apparently rekindled the fire of attack by the Oriental Daily News and led to a series of articles starting from 11th December until 15th December. These articles are the subject matter of these contempt proceedings. The articles complained of (1) 11th December 1997. On that day, two articles were published in the Oriental Daily News. The first article was published in the Kung Fu Tea column with the heading: "The Swinish White-skinned Judges and the Canine Yellow-skinned Tribunal". The article criticised the OAT and the two judges, namely, Rogers J and Godfrey JA for attacking the Oriental Press Group. The OAT and its members were described as "mangy yellow-skinned dogs" which wrongly accused the Group of publishing indecent and obscene articles. The two judges were described as "British white ghosts" and "white-skinned judges" or "pigs" who deliberately ruled against the Oriental Press Group resulting in it having to incur huge legal costs to pursue its actions. Towards the end of the article, there were the following passages:
The article was written in Chinese but the latter part of the last sentence quoted above was expressed in English which is commonly used as or understood to mean a spiteful warning. 18. Apart from being abusive, offensive and scurrilous, the remarks contained racial slurs. There can hardly be any justification or basis for such remarks in what members of the OAT and the judges did and there was nothing in the article purporting to explain why they should be given such descriptions. These remarks were neither rational nor reasonable. Secondly, the article impugned the integrity of the judges and members of the OAT. Thirdly, what was said in the last two paragraphs of the article amounted to a threat to members of the OAT and the judges. The phrase "to wipe you all out", coupled with the warning in the last sentence at the end of the article, particularly when they were repeated in English, strongly smack of a threat to do something harmful or unpleasant to members of the OAT and the judges. It must be borne in mind that the newspaper had in an earlier article published all the names of the OAT members. While judges are professional and experienced persons, members of the OAT are laymen. Even if judges may not treat such warnings seriously, the effect on lay members of the OAT who are performing a public function as part of the administration of justice could be quite intimidating. 19. Another article which was published on the same day was entitled "Rogers' Despicableness and Godfrey's Derangement". It was written by the newspaper's commentators. The article criticized the decisions of Rogers J and Godfrey JA in the copyright case. It alleged that Rogers J had deliberately ruled against the Oriental Press Group and was guilty of "such a despicable act of abstract confirmation and concrete negation by way of double dealings (which) has always been characteristic of British politicians." It also contained the following passages:
20. There was hardly any rational discussion in these articles. It can be seen that the abusive and scurrilous attacks were intensified and the racial slurs were repeated. The status of the OAT was depreciated and its members were insulted. The repute of the judges was smeared and their integrity cast into doubt. They were accused of having deliberately abused their position for illicit motives. Members of the OAT were also threatened that their names were in the hands of the newspaper and that they would be "punished". (2) 12th December 1997. There was an article written in the Kung Fu Tea column on that day. It was entitled "Readers voiced their support in slapping canine adjudicators". This article claimed to have received many phone calls and letters of support from their readers. It referred to "the Kung Fu Tea (having) stripped off (the judges') wigs and trampled them underfoot, and has also separated their flesh from their bones and boiled them in a soup". The article also quoted a letter from a reader called Mr Leung. It quoted from the letter as follows:
The article also referred to the judges and members of the OAT as having "become street rats who are being spat on and cursed everyday." 21. It is quite clear that the article adopted the contents of the reader's letter by quoting them verbatim. If there were indeed such letters from readers, as the newspaper claimed, the campaign had apparently taken effect on the public confidence in the administration of justice. The language used was increasingly vulgar and the threat on the judges and members of the OAT was most vivid and alarming. (3) 13th December 1997. The next article was published on 13th December 1997 which was shortly after the Court of Appeal refused leave to appeal to the Court of Final Appeal in relation to the OAT case. The article criticised the decision of the Court of Appeal in refusing leave. It also alleged that the judges of the Court of Appeal were prejudiced against the Oriental Daily Group and sided with the OAT to harm them. (4) 15th December 1997. On that day, the newspaper published another article in the Kung Fu Tea column in response to a report in the South China Morning Post written 2 days previously saying that the Judiciary and the Department of Justice were considering prosecuting the Oriental Daily News for spreading racism in its articles. The article purported to justify the allegations which the newspaper had previously made. It accused Rogers J of having shown animosity to and deliberately attacked the Oriental Press Group and Godfrey JA of showing prejudice against them. However it went further and said:
22. The allegation of animosity and bias was again repeated. The abusive, offensive and scurrilous attacks with their racial slurs persisted. The OAT and the judges were accused of having continued the persecution of the Oriental Press Group which was begun by the former Governor. They were alleged to have been the instruments of political persecution of the British Hong Kong Government and perpetrated such persecution by their decisions and judgments. They had a political motive to serve while they were discharging their judicial duty. The prelude to the paparazzi trail 23. The allegation of political persecution by the Judiciary was repeated following the Court of Appeal's refusal to grant leave to appeal to the Court of Final Appeal in the copyright case on 8th January 1998. On 12th January 1998, an article was published in the Oriental Daily News which was entitled "In the Case Concerning the Unauthorized Reproduction of Faye Wong's Photograph, the Judiciary Contravenes Society's Laws and Principles; Oriental Is Prepared to Sacrifice Everything in the Final Battle". It maintained that Godfrey JA's judgment was wrong and that the judge had also mistakenly accused their reporter as a member of a paparazzi team. The following passages in the article gave rise to grave concern:
24. The message which this article wanted to convey is clear enough: the Judiciary and its judges were part of a conspiracy to stage a political persecution of the Oriental Press Group; they were manipulated by the former colonial Government and continued the persecution of the Oriental Press Group which had begun before the handover. It would like the readers to believe that the Judiciary was a political instrument having a political agenda and had absolutely no integrity at all. While the same allegation was made expressly against the OAT and only subtly against the Judiciary in previous articles, this was now against the Judiciary clearly, directly and unequivocally. It is significant to note that the article referred to the Oriental Press Group sparing no efforts "in destroying the public authority of the so-called Obscene Article Tribunal", that the image of the OAT had been "torn to shreds and is on the verge of disintegration and extinction" and that it had "collapsed". This is a clear indication that the real intention behind the publication of article after article in the Oriental Daily News was to destroy the public authority of the OAT. The last sentence ended almost like a declaration of war. The pursuit of Godfrey JA 25. On 13th January 1998, the Oriental Daily News published a number of articles. One of them was in the Kung Fu Tea column. It alleged again that Godfrey JA had wrongly accused a female reporter of the newspaper's political section of being a paparazzo. It announced that from that day onwards it would commence a pursuit of the judge. The declared purpose of the operation was to educate the judge on the true meaning of paparazzi. 26. The article publicly set out how the operation was to be organised. A team of reporters would go to the judge's residence and keep him under surveillance 24 hours a day. It warned the judge that he would become a target of the Oriental paparazzi news mission and that they would wait for him to do something that had news value or was interesting, at which time they would immediately raise their cameras and capture those valuable scenes on film for publication in the newspaper. There would be three shifts, 8 hours per shift. They "advised" the judge not to take any false steps. 27. This well publicised paparazzi operation was indeed put into practice on that day. A team of reporters of the Oriental Daily News started pursuing the judge in his daily life around the clock. The operation was reported with photographs and articles in the newspaper on the following day. It gave details of how the team trailed the judge on the first day. This included: how the paparazzi team was outside the judge's residence in the early morning and followed his car to the High Court Building, how reporters of the Oriental Daily News purported to take photographs of the judge when they passed by his car, how the judge's car tried to avoid such pursuit and how the judge and his driver behaved. It also reported the cases which the judge handled on that day, the times when the judge went out for lunch and returned to court, what he did after court hours and the time when he returned to his residence. 28. The article also reported a brief dialogue between the judge and reporters of various mass media regarding this operation. The judge was reported as having said that he had seen the articles and the team of reporters pursuing him and the following remarks: "I don't feel anything", "I am not afraid", "I am not angry, and I will not take any action", and "I thought that such incidents would not happen in the history of a civilised society!" The judge was also reported as keeping his composure and often smiled. It appeared that he did not care about being trailed and covered, the newspaper reported. 29. In the article published on13th January 1998 which announced the pursuit operation, it said that other mass media organisations were welcome to send reporters to cover the pursuit but must not hinder their operation. The other mass media did come to cover this operation as a piece of news. However, in a subsequent article published in the Oriental Daily News, it replied to the adverse comments from other mass media and retorted that if it was to be found guilty of conducting the paparazzi operation, the other newspapers would likewise be guilty. 30. The operation continued on 14th and 15th January 1998. The editorial published on 15th January 1998 repeated its allegation of a conspiracy of political persecution against the Oriental Press Group. It also said that the team of reporters which was formed to help Godfrey JA to correctly understand what paparazzi meant had achieved its purpose and that the operation would cease as from midnight on 16th January. It did. The articles which accompanied the pursuit 31. On 14th January 1998, while the pursuit was going on, there were published a few more articles in the Oriental Daily News. In one of the articles which was entitled "Rogers and Godfrey, look what you have done!", it referred to the two cases involving the Oriental Press Group and its subsidiaries. It went on to allege that the two judges' persecution was "despicable" and "wholly methodical and premeditated" and that they had "haboured shady political motives". 32. In another article published on that day which was entitled "The Oriental Press Group's letter to the Hong Kong Public", it set out incidents of what they alleged to be cases of persecution of the Oriental Press Group. It contained the following passages:
33. In another article published on 15th January 1998, the Oriental Daily News purported to show that the Oriental Press Group had been persecuted from time to time by the relevant authorities and other newspapers. It repeated the allegation that the Judiciary was part of a conspiracy to persecute the Oriental Press Group. It even alleged that the Judiciary including the OAT had "deliberately set a trap to frame up" the Oriental Press Group. 34. On 15th January, there was an editorial which criticized the Journalist Association for commenting on the paparazzi operation. It said that "legal channels had long been blocked by means of political measures" and that the Oriental Press Group had been deprived of justice. 35. On the same day, a notice entitled "Strong Protest" which was published in the name of the Oriental Press Group was put up in the newspaper. It protested that the Judiciary was among a group of bodies which had consistently harboured animosity towards the Oriental Press Group. It demanded that such persecution should cease immediately. 36. It can been seen that while the pursuit was still going on, the allegations of conspiracy and persecution by the Judiciary continued at the same time. The purpose of the paparazzi trail 37. The purpose of the operation which was stated in the article published on 13th January 1998 was for educating the judge as to what the term "paparazzi" means. It contained the following passage:
However, the same article gave what the newspaper thought was the meaning of the term:
38. It is clear that if it were really the purpose of the operation to educate the judge on the meaning of "paparazzi", this definition would have served its purpose. Even if the judge could not have read the article in Chinese, no doubt a translation of it could have been prepared and a copy sent to him. But the newspaper apparently thought that it was not good enough to educate the judge on paper. They had to put it into action. However, subsequent articles published in the newspaper indicate that the motives and the real purpose behind the operation were quite inconsistent with this "educational purpose". 39. The editorial published on 15th January 1998 said that the setting up of the paparazzi team to trail Godfrey JA was a form of protest when all legal channels had been entirely blocked by "anti-Oriental dark political influences." In the latter part of that editorial, the purpose of the operation was however presented differently:
It would seem that apart from trying to "rectify" the judge's concepts, the purpose was then extended to educating the public and arousing their concern. The newspaper defended the operation as "entirely lawful and extremely reasonable." 40. Other articles indicated that it was organised after the Oriental Press Group "could not get justice through legal channels", and had "to restore justice on Heaven's behalf". It was resorting to "an unusual set of laws and regulations" to "bring justice" to the Group. The following passages are relevant:
41. On 16th January 1998, an article was published in the Kung Fu Tea column referring to the paparazzi team as having "triumphantly completed the historic commission of helping Justice Godfrey to understand how real paparazzi behaved." It also referred to helping the judge to get acquainted with the definition of paparazzi. 42. On the following day, 17th January 1998, a few more articles were published in the newspaper. In the Kung Fu Tea column, the article referred again to the operation as helping the judge to "enhance his elementary knowledge of journalism". However, the editorial which was published on the same day said something different:
That is to say, the operation was staged as an "expression of anger" and "a civil protest". The editorial went on to say that they had sought legal advice and had been given to understand that such an operation was perfectly lawfully. In another article published on the same day, it defended its action. It reiterated that it had to set up a paparazzi team to help the judge to understand the nature of paparazzi. However, in the same article, there were two passages which touched upon the purpose of the operation. They are:
The above two passages clearly showed that the paparazzi operation was intended as a "protest" against the Judiciary. 43. In the public notice which was issued in the name of the Oriental Press Group on 17th January 1998, it was repeated that the paparazzi operation did not have the motive and intention to apply pressure since it was publicised beforehand and was aimed at helping the judge to correctly understand the ways of paparazzi. On the other hand, in an editorial published on 18th January 1998, apart from alleging that the judge did not understand what paparazzi meant and that this had led to his wrong decisions, it said:
Here the editorial was clearly saying that after the Court of Appeal had held against the Group, it had "no alternative" but to stage this paparazzi operation. Thus it was organised as a "reaction", "protest" and "an expression of anger" to the decisions of the court. 44. In his affirmation made for the purpose of these proceedings, the 6th respondent disclosed that the operation was approved by him as early as 10th December 1997. The object was to "point out to the judge what a paparazzi really is". However, he later added that all along, he considered the arrangement was "merely a kind of news investigation activity". He had indirectly consulted a lawyer on the lawfulness of paparazzi but did not mention that the target would be a judge. 45. The justification for showing Godfrey JA how paparazzi behave was, in our view, based on two false factual premises. First, although the newspaper asserted in its columns that the photographer concerned was a respected political journalist, there was no evidence before us that she was. Rogers J described her simply as a news photographer: see p.2N-R of the transcript of the judgment of Rogers J of 3rd February 1997. Secondly, Godfrey JA had not likened the reporter's activities to those of paparazzi. The court was making the point that a distinction should be drawn between the taking of photographs of public figures on public occasions, and the taking of photographs of public figures on private occasions. The court expressed the opinion that the time may come when photographs of the latter type should not be the subject of copyright protection. The court did not refer in its judgment to paparazzi at all. Any person, let alone a responsible journalist, who cared to read the judgment would immediately see the limited scope of the judge's comments. If the authors of this allegation had read the judgment, the allegation was deliberately made to mislead the readers. If they had not read the judgment, it was a most irresponsible allegation. 46. It must be noted that soon after this operation, the Oriental Press Group lodged applications with the Court of Final Appeal for leave to appeal in relation to both the copyright case and the OAT case. There was no question of all the legal channels having been exhausted. It must also be remembered that in one of the articles published on 11th December 1997 it threatened to "punish" the OAT members and in another article on 12th January 1998 it said it would spare no effort in "destroying the public authority of the OAT". While such threats were made against the OAT, this is clearly relevant in ascertaining the attitude of the newspaper towards the Judiciary. 47. It is clear, in our view, from the various articles and editorials published in the Oriental Daily News which accompanied the paparazzi trail and those which came shortly after it, that the real purpose of the operation was not to educate the judge. The purpose of the operation can be ascertained from a consideration of all the circumstances of the present case, in particular the newspaper's campaign by the publication of articles since September 1997, the persistent allegations against the Judiciary for political persecution and the contemporaneous articles and editorials. In the circumstances of this case, we have no hesitation in concluding that the motive and real purpose behind this operation was to take revenge for the court's decisions against the Oriental Press Group and to mete out a punishment to the judge for his judgments against the Group. The so-called educational purpose of the operation was clearly an excuse which cannot hold up to scrutiny. 48. These are the facts as we have found them in support of the charge of contempt. We now deal with the law involved in the present case. Scandalising the court (1) Rationale. A civilised community cannot survive without effective machinery for the enforcement of its laws. The task of enforcing those laws falls on the courts, and on the judges who preside over them. It has always been regarded as vital to the rule of law for respect for the judiciary to be maintained and for their dignity to be upheld. If it were otherwise, public confidence in the administration of justice would be undermined, and the law itself would fall into disrepute. That is the rationale for the branch of the law of contempt known as "scandalising the court". As Richmond P said, in delivering the judgment of the Court of Appeal in New Zealand, in Solicitor-General v. Radio Avon Ltd. [1978] 1 NZLR 225 at p.230:
49. It follows that the common law offence of scandalising the court does not exist simply to protect the judiciary. It is not intended to vindicate the judge as a person. It exists to maintain public confidence in the courts and the judges. Accordingly, the law distinguishes between criticism and scurrilous abuse of a judge. As Lord Atkin said in Ambard v. Attorney-General for Trinidad and Tobago [1936] AC 322 at p.335:
More recently, Salmon LJ (as he then was) said in R. v. Commissioner of Police of the Metropolis ex p. Blackburn (No. 2) [1968] 2 QB 150 at p.155G:
However, while legitimate criticism, albeit trenchantly expressed, is always permissible, scurrilous abuse of a judge is not. By scurrilous abuse, we mean a personal attack on a judge in abusive language which vilifies the judge rather than simply points out his errors. The reason why such abuse constitutes a contempt of court is because of the effect it may have on public confidence in the due administration of justice. 50. The widespread respect for the rule of law and the universally-recognised need for the due administration of justice has meant that attacks on the judiciary are rare. Whereas cases relating to interference with the course of justice in a particular case are not infrequent, there have been relatively few recorded cases of contempts consisting of the scandalising of the court. Indeed, in McLeod v. St. Aubyn [1899] AC 549, Lord Morris at p.561 observed:
However, this comment turned out to be a premature one. The very next year, in R. v. Gray [1900] 2 QB 36, a newspaper was held to have been in contempt in respect of an article containing "personal scurrilous abuse" of a judge. Since then, there have been a number of prosecutions for contempts of this kind, though as we have said there have been none in Hong Kong and the last successful prosecution in England was in 1931. That is not, we think, 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 contempt of this kind are only initiated in the most outrageous cases. (2) The actus reus. R v. Gray contains Lord Russell of Killowen CJ's classic definition of this class of contempt at p.40:
In other words, the actus reus is the publication of material (or the doing of an act) which is "calculated" to lower the repute of the court or judge, and so undermine public confidence in the due administration of justice. We make two comments about this definition of the actus reus of the offence of scandalising the court. 51. First, it is not necessary to establish that the due administration of justice is or may be in peril. The focus is on public confidence in the due administration of justice. That accords with the rationale for bringing the scandalising of the court into the law of contempt. Thus, the offence of scandalising the court is committed if public confidence in the due administration of justice would have been undermined to the requisite degree. This was the approach in the Radio Avon case. At p.234, the court said:
It is to be noted that scandalising the court is not recognised as a branch of the law of contempt in the United States, but it is in Canada. Even so, in R. v. Kopyto (1988) 47 D.L.R. (4th) 213, a number of the judges in the Court of Appeal in Ontario referred to the danger to the administration of justice, rather than to the danger of public confidence in it being undermined. We respectfully prefer the view expressed in the Radio Avon case: as we have said, that view gives effect to the rationale underlying this branch of the law of contempt. 52. Secondly, what is the degree of likelihood required to establish that public confidence in the due administration of justice would have been undermined? Two lines of authority were referred to us by Mr John Griffiths SC for the majority of the respondents: (a) In Attorney-General v. Times Newspapers Ltd. [1974] AC 273, Lord Reid said at pp.298H-299A:
(b) In Attorney-General for New South Wales v. John Fairfax & Sons Ltd. (1986) 6 NSWLR 695, the Court of Appeal of New South Wales held that a publication should no longer be regarded as a contempt unless it fell within the class of cases which would previously have been regarded as punishable contempts. Accordingly, the court held that nothing in an article can amount to contempt unless, as a matter of practical reality, it had a tendency to interfere with the due course of justice: see, in particular, the judgment of McHugh JA at p.708C-G. This approach was subsequently confirmed by the Court of Appeal of New South Wales in Director of Public Prosecutions v. Wran (1986) 7 NSWLR 616 and Attorney-General for New South Wales v. Dean (1990) 20 NSWLR 650. 53. We do not think that too much reliance should be placed on the cases referred to in the preceding sub-paragraph. They concerned publications which were said to interfere with the course of justice in a particular case. Understandably, the focus in those cases was on the impact which such publications had on the course of justice in the actual case at hand, rather than on public confidence in the administration of justice as a continuing process. 54. We return, then, to the question posed earlier in this part of our judgment: what is the degree of likelihood required to establish that public confidence in the due administration of justice would have been undermined? In the Radio Avon case, the court said at p.234 that the broadcasters
This was clearly based on Lord Reid's words in the Times Newspapers case, and with two reservations we propose to adopt this test. We are conscious that serious sanctions can be imposed if contempt is established. As a general rule, the greater the punishment, the greater should be the likelihood of the facts which give rise to liability. We are also conscious of the need to strike the correct balance between freedom of expression and the due administration of justice. That balance, in our view, favours making criminal liability in this branch of the law of contempt dependent on something more than the remote possibility of a connection between the acts complained of and the erosion of public confidence in the due administration of justice. 55. Our two reservations are as follows. The first relates to the phrase "a real risk". By adopting that phrase, we are not to be taken as laying down a rule that it must be more likely than not that public confidence in the due administration of justice would have been undermined. The phrase "a real risk" should be given its ordinary meaning. It means a good chance as opposed to a mere possibility. Whether such a risk has been established will depend on the circumstances of each case including the nature of the act done or the language of the publication used. It will also depend on whether there is a pending action or whether the act or publication is targeted at a particular case or at the court or judge generally. The second reservation relates to the section of the public whose confidence in the administration of justice must be affected. We do not think it right to limit consideration to the hypothetical reasonable man, as Goodman JA did in the Kopyto case at p.263: it is just as important that confidence in the administration of justice is not undermined in the eyes of the person who does not address issues rationally. Accordingly, we think that the real test should be: was there a real risk that the acts complained of would undermine confidence in the due administration of justice in the minds of at least some of the persons who were likely to become aware of the publication or acts complained of? (3) The mens rea. There is little authority on the mens rea required for the offence of scandalising the court. There can be no doubt that the defendant must have intended to do the acts which are said to constitute the contempt. But does the offence of scandalising the court require mens rea in relation to the consequences of those acts? In other words, does the offence require proof of an intention to undermine public confidence in the due administration of justice - for example, an intention to lower the reputation or authority of a particular judge or of the judiciary as a whole? 56. On this important question, there is disagreement in common law jurisdictions. In South Africa, proof of such an intention is required. Thus, in S. v. Van Niekerk 1970 (3) SA 655 (T), Claasen J said p.657:
Even then, though, the defendant does not actually need to have that conscious intention. Recklessness, the learned judge said, will suffice:
57. A different view has been taken in the United Kingdom, Australia and New Zealand. In R v. Editor of New Statesman ex p DPP (1928) 44 TLR 301, Lord Hewart CJ held that the editor of a newspaper was guilty of contempt even though there was no intent to scandalise the court, but because of his lack of intent he was not punished and only ordered to pay costs. In Australia, Hope JA in Attorney-General for New South Wales v. Mundey [1972] 2 NSWLR 887, said at p.911F:
The same view has been taken in New Zealand in both the Radio Avon case and in Solicitor-General v. Radio New Zealand Ltd. [1994] 1 NZLR 48, though that was because in those cases (a) the court did not distinguish for this purpose between the offence of scandalising the court and the offence of interfering with the course of justice in a particular case, and (b) it was thought that on the authorities the offence of interfering with the course of justice in a particular case did not require an intention to interfere with the course of justice. And the same view was also expressed by the Court of Appeal of Trinidad and Tobago in Chokolingo v. Law Society of Trinidad and Tobago (1978) 30 WIR 372. Corbin JA said p.396d:
58. We prefer the view of the law which prevails in these latter jurisdictions. The importance of public confidence in the due administration of justice justifies the attitude taken by their courts. In particular, we are not unmindful of the degree of likelihood which we have thought appropriate is required to establish the actus reus of the offence of scandalising the court. The real safeguard against an unjust conviction for the offence is that there has to be a real risk that public confidence in the due administration of justice would be undermined. It is not necessary to show that the contemnor intended to undermine public confidence in the administration of justice. Interfering with the administration of justice as a continuing process 59. It is well established that conduct which interferes with the administration of justice as a continuing process constitutes a contempt of court. Conduct which interferes with persons having duties to discharge in courts of law is an example of such a contempt. The reported cases relate for the most part to approaches made to witnesses and jurors, but the law of contempt also applies to the rare occasions on which an approach has been made to a judge. (1) The actus reus. In our judgment, the actus reus of such an offence is an approach to a judge which creates a real risk of the administration of justice as a continuing process being interfered with. We adopt the "real risk" test as the degree of likelihood required for the same reasons as those we have given in relation to the offence of scandalising the court, and we repeat that a real risk means a good chance as opposed to a mere possibility. 60. But in the case of an approach to a judge, what constitutes interference in the administration of justice as a continuing process? It would only be in an extreme case that a judge is likely to be deflected from performing his judicial duty conscientiously and impartially by an approach to him. Does that mean that it is only in an extreme case that an approach to a judge will constitute an interference in the administration of justice as a continuing process? The question has only to be posed to show what the answer should be. It is the approach to the judge which constitutes the interference with the administration of justice as a continuing process, not the impact which the approach has on the judge concerned. 61. However, it is not every approach to a judge which constitutes an interference with the administration of justice as a continuing process. A judge must not only be independent and impartial. Public confidence in the due administration of justice requires that he be seen to be independent and impartial. When such independence and impartiality is perceived to be at risk, public confidence in the due administration of justice is jeopardised. This branch of the law of contempt in our judgment exists to protect the perception of judges as independent and impartial. Accordingly, the real test should be: was there a real risk that the approach to the judge would undermine confidence in the due administration of justice in the minds of at least some of the persons who were likely to become aware of the approach? (2) The mens rea. Mr Griffiths argued that "the necessary mens rea to support a conviction of criminal contempt by interfering with [the administration of justice as a continuing process] is either:-
This submission was based on an analysis of the judgments of Lord Denning MR and Donovan LJ (as he then was) in Attorney-General v. Butterworth [1963] 1 QB 696. 62. The Butterworth case involved the victimisation of a member of a trade union who had given evidence in a particular case. As a result of giving evidence, he had been removed from office. The Court of Appeal held that this amounted to a contempt of court, being an interference with the proper administration of justice as a continuing process in deterring potential witnesses from giving evidence in future cases, whether the interference occurred while the proceedings were still pending or after they had concluded. Lord Denning said at p.722: "... contempt of court is a criminal offence, punishable summarily by the court itself, and, like all criminal offences, it requires in general a guilty mind ... At any rate, the law requires a guilty mind in these cases of intimidation or victimisation of witnesses." In the context of that case, this remark was clearly correct. For where the contempt involves the intimidation or victimisation of a witness, it would normally be referable to a pending case or a case which has concluded. As Lord Denning said, it would be absurd to punish for contempt of court a stranger for assaulting a witness when he was returning home after having given evidence, or an employer for dismissing a witness if the stranger or employer did not know of the case in which the witness had given evidence. Hence, it may be necessary in such circumstances for the alleged contemnor to have a "guilty mind" in the sense that the stranger or employer knows of the pending or concluded proceedings and assaults or dismisses the witness. 63. But what Lord Denning went on to say at p.723 was this:
Donovan LJ did not share this view. On this issue, Donovan LJ said at pp.725-726:
In other words, Donovan LJ treated the inquiry into the motives of a person charged with contempt of court by interfering with the administration of justice as being relevant to what the likely effect of the alleged act of contempt would have been. He did not hold that an intention to achieve that end is a necessary ingredient of contempt of court. 64. We prefer the view of Donovan LJ. As we have said in the context of the mens rea required for the offence of scandalising the court, the importance of public confidence in the due administration of justice justifies Donovan LJ's approach. We are fortified in this view by the conclusion reached by the authors of the leading modern textbook on the law of contempt: Borrie & Lowe, "The Law of Contempt", 3rd ed., p.411. The mens rea required is merely an intention to make the approach to the judge which was made. The application of the law to the present case (i) The articles complained of 65. The vitriolic campaign waged by the Oriental Daily News on the Judiciary in general, and on Rogers J and Godfrey JA and the OAT in particular, is without parallel in modern times. The articles were not the spontaneous, unconsidered reaction of a disappointed litigant, but amounted to a deliberate and persistent campaign of vilification of Hong Kong's Judiciary. From our analysis of the articles in the earlier part of this judgment, the attacks can be grouped into the following categories:
66. We do not overlook the natural journalistic tendency towards hyperbole. Nor have we ignored the Chinese practice of using colourful metaphors. But on any view this was not criticism, albeit outspoken and trenchantly expressed, of the Judiciary. The articles were a series of personal attacks on the Judiciary in abusive, intemperate and shocking language. They contained no reasoned argument to speak of, and the allegations which they made were without foundation. These were attacks on the Judiciary which, to quote Borrie & Lowe, "even libertarians might wish to repel." 67. We have no doubt that there was a real risk that public confidence in the due administration of justice would have been undermined. Indeed, we have no doubt that it was very likely that it would have been undermined. It may be that some of the newspaper's readers would have recognised the articles for what they were: the paranoid ramblings of a disgruntled litigant. But a sustained campaign of this kind would have caused at least some sectors of the public to think that there might be something in the newspaper's complaints. We should add (in case an appellate court takes a different view of the section of the public whose confidence in the administration of justice must be affected) that this applies even to reasonable members of the public. Indeed, the newspaper itself reported:
In addition, "numerous (letters) of support" were received, including the letter from which we have quoted certain passages. Such was the support which the newspaper claimed its articles had generated that it announced a "Championship in Readers' Letters for Oriental's Belabouring of Justices and Adjudicators". If it were to be believed, as the newspaper clearly wanted its readers and the public to believe, that the Judiciary was an instrument of political persecution and that the judges had no integrity at all, there would be very little left in the confidence of the public in the administration of justice in Hong Kong. 68. We turn to mens rea. There is no doubt that the articles were intended to be published, but in case a different view is taken by an appellate court of the nature of the mens rea required for the offence of scandalising the court, we have considered the intention which lay behind the publication of these articles in greater detail. Having read them with care, and having considered them in the context of the series of cases in which the Oriental Daily News and its sister newspapers were involved, we are satisfied that the only inference which can be drawn is that the intention was at least to create a climate of dissatisfaction with the Judiciary among the readers of the Oriental Daily News. From the extremely degrading and insulting expressions used in these articles, it could even be said that the intention was to incite their readers to despise members of the Judiciary and not to trust them. We do not know what those responsible for the publication of the articles hoped this climate of dissatisfaction or contemptuous attitude towards the Judiciary would achieve. We suspect that they hoped that the Judiciary would bow to the weight of public opinion, and would treat the Oriental Daily News and its sister newspapers in a more benevolent way in the future. But whatever they hoped the climate of dissatisfaction with and contempt for the Judiciary would achieve, such a climate was what these articles were intended to create. 69. For these reasons, we have concluded, without any hesitation, that all the articles complained of, when taken cumulatively, were calculated to undermine public confidence in the due administration of justice in Hong Kong. We are therefore satisfied beyond doubt that their publication constituted the common law offence of scandalising the court. (ii) The pursuit of Godfrey JA 70. We have already described the form which the pursuit of Godfrey JA took. It has been categorised in the course of this case as "the paparazzi trail". That is because the Oriental Daily News claimed that what it wanted to do was to show Godfrey JA how paparazzi behave. It wanted him to understand why the conduct of a respected political journalist in taking a photograph of Faye Wong in the baggage claim area at Beijing Airport bore no resemblance to the activities of paparazzi who hound public figures in pursuit of marketable photographs which pander to the public's insatiable appetite for photographs of the rich and famous. 71. Mr. Griffiths reminded us that the pursuit of public figures or prominent persons by paparazzi is not of itself unlawful, provided that the paparazzi do not trespass on private property and provided that their activities do not amount to trespass to the person. He also reminded us of the evidence which showed that Godfrey JA's reaction to the pursuit of him was light-hearted. Godfrey JA characteristically shrugged off the attentions of the paparazzi in a manner which suggested that he was unaffected by their activities. It was inconceivable that the paparazzi trail would have had any impact on his future judicial conduct. 72. These arguments miss the point. The issue is not whether the pursuit of Godfrey JA would have affected the due administration of justice. The issue is whether there was a real risk that public confidence in the due administration of justice would be affected. Whether the activities of paparazzi are lawful or not depends on what they do. But even if the activities of the paparazzi would otherwise have been lawful, they became unlawful if as a result there was a real risk of public confidence in the due administration of justice being undermined. When one puts the pursuit of Godfrey JA in the context of what the newspaper was telling its readers about it at the time, the conclusion is inescapable that there was a real risk - indeed a very great likelihood - that public confidence in the due administration of justice would be undermined: it was inevitable that at least some sectors of the newspaper's readership would think that there was a possibility that Godfrey JA might be affected by the treatment of him, and that that might have affected his future handling of cases involving the Oriental Daily News in particular, and the press in general. If such conduct as in the present case is tolerated, it would also give rise to a misconception that it is permissible to resort to similar tactics after a person has lost his cause in court. 73. We turn to mens rea. There is no doubt that the pursuit of Godfrey JA by a team of paparazzi was intended, but again in case a different view is taken by an appellate court of the nature of the mens rea required, we have considered the intention which lay behind the paparazzi trail. We do not accept that the purpose of pursuing Godfrey JA around the clock was to help him understand how paparazzi behave. We have in the earlier part of this judgment analysed the motive and real purpose of this operation. We have no doubt that the pursuit of Godfrey JA was simply the newspaper's instinctive reaction to its disappointment over the Court of Appeal's refusal to increase the damages awarded to the Plaintiffs, or to certify that the question involved in the appeal was one which ought to be submitted to the Court of Final Appeal. Indeed, that is what the newspaper itself told its readership. In searching for a justification for "punishing" Godfrey JA, the newspaper alighted on the "educational" qualities of the paparazzi trail. We think that this was disingenuous. The campaign which had preceded the pursuit of Godfrey JA, and its timing (i.e. it did not commence shortly after 19th September 1997 when Godfrey JA made the observations to which the Oriental Daily News took exception, but only after 8th January 1998 when the Court of Appeal refused to certify that the question involved in the appeal was one which ought to be submitted to the Court of Final Appeal, although the operation was approved by the 6th Respondent as early as 10th December 1997), point irresistably to the conclusion that what lay behind the pursuit of Godfrey JA was not a desire to educate him in the ways of paparazzi, but to pay him back for not going along with all of the Plaintiffs' arguments on the appeal. Clearly that was the predominant and/or actuating motive. That being the case, what was done amounted to interference with the administration of justice just as victimisation of a witness or juror does. Even if the purpose of the pursuit was indeed to educate the judge, this would also amount to scandalising the court as it would create the impression that judges can be "educated" in such a way after having given decisions which do not find favour with the parties who had lost. 74. For these reasons, we have concluded, again without any hesitation, that the pursuit of Godfrey JA over 13th, 14th and 15th January 1998 was calculated to undermine public confidence in the due administration of justice in Hong Kong. We are therefore satisfied beyond doubt that the activities of the paparazzi constituted the common law offences of scandalising the court and interfering with the administration of justice as a continuing process. The Bill of Rights 75. Art.16 of the Bill of Rights protects the right to freedom of expression. It provides, so far as is material:
Mr Griffiths argued that the retention of the common law offence of scandalising the court was inconsistent with, and therefore a contravention of, Art.16, and that the court should declare the offence to have been abolished in Hong Kong. Alternatively, he argued that if the offence survived the Bill of Rights, it did so in a very limited form. 76. This argument was inspired by the Kopyto case, in which the Court of Appeal in Ontario had to consider the impact of section 2(b) of the Canadian Charter of Rights and Freedoms, which guarantees "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication", on the common law offence of scandalising the court. The five members of the court expressed very different views on the matter. One judge believed that the offence of scandalising the court was completely inconsistent with the Charter, and that there was no scope left for it at all. Two of the judges thought that the offence could only be compatible with the Charter if it was very strictly limited. The two other judges held that the offence was not an abridgement of the freedom of expression at all, and that it was therefore unnecessary to decide whether it was incompatible with the Charter. 77. Freedom of expression is not a creature of the Bill of Rights. It is one of the fundamental freedoms developed by the common law over the years. As we have said, it extended to vigorous, outspoken criticism of the courts and the judges who preside over them. However, the criminal offence of scandalising the court was developed in parallel with the freedom to criticise courts and judges. The rule of law had to be preserved, and that was to be achieved by the creation of a remedy against those whose conduct could jeopardise the rule of law by lowering the public estimation of those responsible for the due administration of justice. Seen in that light, it is strongly arguable that the criminalising of such conduct is not a restriction, albeit a permissible one, on the freedom of expression. Rather, the person whose conduct could jeopardise the rule of law in this way, and who therefore commits the common law offence of scandalising the court, cannot be said to be exercising the right of freedom of expression at all. 78. We think that there is much to be said for this analysis and we tend to agree with it. However, it was not argued before us, and we therefore proceed on the assumption that the offence is a restriction on the freedom of expression. We accordingly consider whether the offence, whether in its present form or in a modified one, is saved by Art.16(3). 79. It was argued that this ground has already been covered by Rogers J in Attorney-General v. Cheung Kim Hung (1997) 7 HKPLR 295. In that case, Rogers J held that the law of contempt is a permissible restriction on the right of freedom of expression under Art.16(3). However, the branch of the law of contempt with which that case dealt was the interference with the course of justice in a particular case. Different considerations may well apply to the branch of the law of contempt which punishes the scandalising of the court. 80. If the law of contempt is to prohibit the publication of the articles in the present case, the restriction on their publication must satisfy three conditions:
It is not disputed that the restriction was provided by law: the restriction on the publication of the articles was provided for by the common law offence of scandalising the court. The issue is whether conditions (ii) and (iii) have been satisfied. 81. As for (ii), the objective in Art.16(3)(b) which is said to justify the restriction is "the protection of ... public order (ordre public)". The inclusion of the words in brackets shows that the phrase "public order" should be given a wider meaning than the words normally have in common law jurisdictions. The meaning which should be given to the words "public order" is one which includes the concept familiar to European lawyers of "ordre public". Defining "ordre public" has been elusive, especially as the phrase has different meanings in private and public law, and its meaning differs depending on the context in which it is being used. For example, in Art.10 of the Bill of Rights, its meaning is more akin to the prevention of disorder. However, in the context of public law,
The courts represent a vitally important institution in the "state organization". They are the embodiment of the rule of law, which plays a pivotal role in the satisfaction of the "collective needs" of the community and the protection of "human rights". Once public order has been defined in this way (and is not limited to the prevention of disorder), the phrase "the protection ... of public order" in Art.16(3)(b) in our view plainly includes the protection of the rule of law - at least to the extent that the rule of law is eroded if public confidence in the due administration of justice is undermined. We are fortified in this view by the opinions of academic writers on the interpretation of similar provisions in various international instruments (Art.19(3) of the International Covenant on Civil and Political Rights, and Art.10(2) of the European Convention on the Protection of Human Rights and Fundamental Freedoms) on which Art.16(3)(b) was based: see, for example, Feldman, "Freedom of Expression", in Harris and Joseph (eds.), "The International Covenant on Civil and Political Rights and United Kingdom Law", 1995, p.425. 82. We have not overlooked Mr Griffiths' point that the Chinese language text of Art.16(3)(b) uses the Chinese characters (公共秩序), which mean "public order", not "public order (ordre public)". What is the effect of that omission? Section 10B of the Interpretation and General Clauses Ordinance (Cap. 1) provides the answer. It reads:
In our judgment, the presumption that the characters (公共秩序） in the Chinese language text should be construed to give effect to the words "ordre public" in the English language text has not been rebutted. But even if it is necessary to resort to section 10B(3), section 2(3) of the Hong Kong Bill of Rights Ordinance (Cap.383) provides:
Since Art.19(3) of the International Covenant on Civil and Political Rights uses the phrase "public order (ordre public)", the meaning to be given to the Chinese characters (公共秩序) which best reconciles the texts, having regard to the object and purpose of the Hong Kong Bill of Rights Ordinance, is the meaning conveyed by the words "ordre public". 83. As for (iii), the issue crystallises into whether the common law offence of scandalising the court is necessary for the maintenance of public confidence in the administration of justice in Hong Kong, and therefore for the protection of the rule of law. We have found it a little difficult distilling the various arguments on this issue, but on the basis of selected passages in some of the judgments in the Kopyto case, three things, we think, are being argued:
84. Accordingly, an offence of scandalising the court is necessary for the maintenance of public confidence in the administration of justice in Hong Kong, and therefore for the protection of the rule of law. Since we are proceeding on the footing that the offence constitutes a restriction, albeit a permissible one, on the right of freedom of expression, we have also considered whether the actual common law offence of scandalising the court satisfies the test of proportionality. In other words, do the ingredients of the offence go no further than is reasonably necessary to achieve the objective pursued? We believe that the ingredients do satisfy the test of proportionality, though we had the test of proportionality in mind when we identified earlier in this judgment what the ingredients of the offence should be. We were fortunate in having a relatively free hand to do that in view of the facts that (a) the common law offence of scandalising the court has never been considered judicially in Hong Kong, and (b) there are widely differing approaches in other common law jurisdictions. 85. In summary, we are conscious that an intention to undermine public confidence in the due administration of justice is not one of the ingredients of the offence. But as we have said elsewhere in this judgment, that is compensated for by the fact that liability can only be established if there was a real risk that public confidence in the due administration of justice would be undermined. The absence of any intent to undermine public confidence can be reflected in the penalty to be imposed. 86. Finally, Mr Griffiths mounted an argument which attacked the Secretary for Justice's reliance on Art.16(3) altogether. The argument was based on certain provisions of the Basic Law. Art.8 of the Basic Law provides, so far as is material:
It is contended that the criminal offence of scandalising the court contravenes Art.27 of the Basic Law, which provides, so far as is material:
That freedom is expressed in absolute terms. Accordingly, the submission which appears on p.24 of Mr Griffiths' written reply is that
87. If this means that the restrictions in Art.16(3) must be construed narrowly, because the restrictions derogate from one of the fundamental rights and freedoms protected by the Bill of Rights, we are inclined to agree - though it does not affect the conclusions which we had already reached. On the other hand, if the submission means that the restrictions in Art.16(3) should be of no effect because they are incompatible with the unrestricted right to freedom of expression guaranteed by the Basic Law, we disagree with it. Art.27 is in Chapter III of the Basic Law, which is headed "Fundamental Rights and Duties of the Residents". Thus, Art.27 merely identifies a particular group of fundamental rights and freedoms which the Basic Law guarantees. It does not purport to prevent the enactment of restrictions on those rights. The effect of Art.39 is to permit restrictions on the rights protected in Chapter III, provided that those restrictions are provided by law (for example, Art.16(3) of the Bill of Rights) and are compatible with various international instruments, including the International Covenant on Civil and Political Rights. 88. For all these reasons, we have concluded that the common law offence of scandalising the court has not been abolished or modified by the Bill of Rights. 89. For the same reasons, we do not think the offence of interference with the administration of justice has been affected in any way by the Bill of Rights. Responsibility for the contempts (1) The 6th respondent 90. We start with the 6th respondent. He joined the Oriental Daily News as a Deputy Chief Editor in June 1997. He was promoted to be the Chief Editor and Controller in August 1997. As Chief Editor, he was responsible for approving and confirming the contents of the entire newspaper before its publication. 91. We were told by Mr Cheng Huan SC on his behalf that the 6th respondent had been advised by his solicitors that he had been guilty of the contempts alleged against him. The only reason why he has not admitted his guilt is that he was aware that counsel for the other respondents was intending to argue that the acts complained of did not amount to contempts. Now that we have found that the acts complained of did constitute contempts, the 6th respondent takes full responsibility for them. This is because as the Chief Editor of the Oriental Daily News at the material time, he had ultimate control over the contents of the newspaper and over the activities of the newspaper's photographers and reporters who pursued Godfrey JA. 92. In our view, even without this concession, we do not think there can be any argument but that the 6th respondent is liable. It is quite clear from his own evidence that he was the person who approved the launching of the campaign against the Judiciary by the publication of articles and the arrangements of the paparazzi. There is no doubt that he intended these actions. It was a conscious decision on his part after deliberation with other editors. 93. We have been referred to a number of cases regarding the liability of an editor of a newspaper for contempt of court. We do not propose to deal with them in view of his own evidence. It is beyond a shadow of doubt that the 6th respondent is guilty of all the contempts alleged against him. (2) The 2nd respondent 94. Since the Oriental Daily News is a local newspaper, it has to be registered under the Registration of Local Newspapers Ordinance (Cap. 268)("the Ordinance"). Since 1990, the 2nd respondent has been described in the Register of Local Newspapers as the publisher and printer of the Oriental Daily News, and since 1992 it has been described as the proprietor as well. That is the reason why it has been named a respondent in this case - even though it is a shell company, with nominee directors only, and no assets to speak of. 95. However, there is nothing in the Ordinance which deems the registered proprietor, publisher and printer of a newspaper to be the actual proprietor, publisher and printer. Accordingly, whether the 2nd respondent is the actual proprietor, publisher and printer of the Oriental Daily News depends upon (a) what is the true meaning of the terms "proprietor", "publisher" and "printer", and (b) whether, in the light of what those terms mean, the 2nd respondent was on the facts the proprietor, publisher or printer of the Oriental Daily News. 96. In our judgment, the terms "proprietor", "publisher" and "printer" should bear the following meanings. The "proprietor" of a newspaper is the person, firm or company which owns the enterprise whose business is the publication of the newspaper. The "publisher" of a newspaper is the person, firm or company which carries on the enterprise whose business is the publication of the newspaper. The "printer" of a newspaper is the person, firm or company engaged by the publisher to print the newspaper. These definitions are refinements of the definitions advanced by Mr Ronny Tong SC for the Secretary for Justice. Mr Griffiths did not contend otherwise. 97. We find the relevant facts to be as follows. The Oriental Press Group is the name given to the group of companies whose holding company is the 1st respondent. Although the 1st respondent's business is described in the latest Directors' Report as that of "investment holding", the trading activities of the Group as described in the latest Statement of the Chairman of the 1st respondent consist of the publication of a number of newspapers and magazines. The Group's trading activities are carried on by a number of operating subsidiaries. The principal activities of those subsidiaries are described in the Notes to the Group's latest consolidated accounts. Thus, the principal activity of the Oriental Daily News Ltd. is said to be "newspaper publication", that of the 2nd respondent is said to be "registered publisher", and that of OPG Printing Ltd. is said to be "printing services". 98. If the Oriental Daily News Ltd. was indeed the publisher of the Oriental Daily News, as the respondents contend, one might have expected it to be responsible for the three major items of expenditure incurred in the publication of a newspaper: the wages of the staff, the cost of the paper on which the newspaper is printed and the payment of the printers. In fact, the Oriental Daily News Ltd. is not responsible for any of these items of expenditure. The staff were employed by another company within the Group, OPG Human Resources Ltd., and are presumably paid by that company. The newsprint is paid for by yet another company within the Group, OPG Finance Ltd. And OPG Finance Ltd. also pays for the printing, which is carried out in house by OPG Printing Ltd. 99. On these facts, we think that OPG Printing Ltd. is the printer of the Oriental Daily News. There is insufficient evidence before us to identify who the publisher of the Oriental Daily News is, but we incline to the view advanced by Mr Griffiths that the Oriental Daily News Ltd. was. That accords with what appears in the Notes to the accounts and with common sense. The Oriental Daily News Ltd. was the operating subsidiary of the 1st respondent entrusted with the publication of the Oriental Daily News, even though the major items of expenditure for which the publisher of a newspaper would normally be responsible were in this case borne by other companies within the group. On this footing, the staff employed by OPG Human Resources Ltd. would be treated as seconded to the Oriental Daily News Ltd., and the payments for the newsprint and the printing would be treated as having been made on behalf of the Oriental Daily News Ltd. 100. However, we also find that the 1st respondent is the true proprietor of the Oriental Daily News. If the business of the Oriental Daily News Ltd. is the publication of the newspaper, then the 1st respondent is the proprietor of the newspaper because it is the 1st respondent which owns the enterprise whose business is the publication of the newspaper. The 1st respondent owns the enterprise, i.e. the Oriental Daily News Ltd., because it owns 99 of the 100 issued shares in it. 101. To this, we add three comments:
102. Reverting to the 2nd respondent, it is plain that although the 2nd respondent is the registered proprietor, publisher and printer of the Oriental Daily News, it is in fact nothing of the kind. It is simply the company nominated to be the proprietor, publisher and printer by the persons responsible for furnishing the particulars required under the Ordinance. But that nomination bears no resemblance to the true facts, which we have attempted to describe. To hold that a shell company, with nominee directors and no assets or operational functions, could be the proprietor, publisher and printer of a newspaper - simply because of the fact of registration - would be to fly in the face of reality. Our conclusion may well have been different if the doctrine of estoppel applied to the law of criminal contempt, i.e. if the 2nd respondent could, by virtue of the representations inherent in the particulars furnished to the Registrar of Newspapers, be estopped from asserting that it was not in fact the proprietor, publisher or printer of the newspaper. However, the doctrine of estoppel has no place in the criminal law, and Mr Tong did not argue otherwise. 103. Accordingly, we find that the 2nd respondent was not in law responsible for the acts complained of, and we find it not guilty of the various contempts. We should add, though, that the Secretary for Justice cannot be criticised for joining the 2nd respondent as a respondent to these proceedings. It would have been remiss of her not to do so in view of the particulars furnished to the Registrar of Newspapers. We leave it to the Secretary for Justice to decide whether a prosecution should be commenced under section 11 of the Ordinance against the person who certified the correctness of those particulars. (3) The 4th and 5th respondents 104. The only basis on which the 4th and 5th respondents are said to have been responsible for the contempts is that they are the directors of the 2nd respondent. However, it is accepted that their directorships of the 2nd respondent could only have made them responsible for the contempts if the 2nd respondent was responsible for them. Since the 2nd respondent was not in law responsible for the contempts, it follows that the 4th and 5th respondents are not responsible for them either. Accordingly, we find them not guilty of the various contempts. (4) The 1st respondent 105. We have in the earlier part of this judgment found the 1st respondent to be in fact the true proprietor of the Oriental Daily News. We do not think it can be argued that the 1st respondent was not aware of the publication of the articles. They referred to the 1st respondent as the main victim of persecution. The impression one gets is that the articles published in the newspaper spoke on behalf of the 1st respondent. They were published over a period of one or two months. The Board of Directors of the 1st respondent met to discuss how to respond to the inquiry of the Securities and Futures Commission regarding the suggestion published in an article on 30th October 1997 which hinted that the Oriental Press Group would consider selling the newspaper and a notice was later published in the newspaper in the name of the 1st respondent clarifying the matter. The paparazzi trial took place for a few days and was publicized in the mass media. The paparazzi trail was said in the articles published in the Oriental Daily News to have been organized by the 1st respondent. There were subsequent notices published openly in the newspaper in the name of the 1st respondent defending its position and answering the criticisms raised by various organizations and other newspapers. There were even suggestions that the newspaper would be prosecuted. Yet according to the evidence, no one from the 1st respondent seemed to have made any inquiry about the publications and the operation. No one from the Group had queried why the publications had referred to the 1st respondent and purported to have been published and/or authorized by the 1st respondent. 106. The authorities referred to us clearly show that the proprietor of a newspaper is responsible for a contempt of court committed by the publication in its newspaper. However, the legal basis for such liability has been the subject of much debate. The arguments are set out in Borrie & Lowe, pp.382-386. Some cases considered that a newspaper proprietor is vicariously liable for the contempt of the editor and the newspaper. See R. v. Evening Standard [1954] 1 QB 578. Other cases applied the alter ego or identification principle: the editor is the directing mind and wheel of the company. See H L Bolton (Engineering) Company Limited v. G J Graham & Sons Limited [1957] 1 QB 159. We believe that there are profound doctrinal objections to founding the basis of the proprietor's liability on vicarious liability, and we propose to hold the 1st respondent liable on the footing of primary liability. To use the words of Borrie & Lowe, p.386:
See the case of Fitzgibbon v. Barker [1992] 111 FLR 191, in which the Australian Court accepted the views expressed by the authors of Borrie & Lowe in the passage cited above. The court further added:
We agree with such views. There is no doubt that the 1st respondent is guilty of the contempt committed by the publication of these articles in its newspaper, the Oriental Daily News. 107. However, we do not think that the 1st respondent can be held responsible for the contempt which consisted of the pursuit of Godfrey JA. While the paparazzi trail was part and parcel of the campaign waged against the Judiciary, and although it took place at about the same time as some of the articles in the Oriental Daily News complained of, the pursuit of Godfrey JA could not be said to be within the scope of those activities which the 1st respondent had entrusted to the publisher and editor of the newspaper to carry out. The scope of the activities which the 1st respondent had entrusted to the publisher and the editor to carry out was the publication of the Oriental Daily News. Accordingly, although we find the 1st respondent guilty of the offence of scandalising the court by publishing the articles complained of, we find the 1st respondent not guilty of the contempt which consisted of the pursuit of Godfrey JA, even though the pursuit was connected with articles which appeared in the Oriental Daily News. (5) The 3rd respondent 108. The 3rd respondent did not swear an affidavit or make an affirmation himself. But his personal assistant, Mak Kam Hung, did. We suspect that that was to avoid the 3rd respondent being exposed to the risk of cross-examination. But even if that is so, it was a legitimate device to adopt. Since the burden of proof is on the Secretary for Justice, no inference adverse to the 3rd respondent can be drawn from his decision not to swear an affidavit or make an affirmation himself. 109. The liability of the 3rd respondent was primarily put on the basis that although the 6th respondent nominally enjoyed editorial independence, it was the 3rd respondent who had actually instigated the campaign against the Judiciary. On that footing, it was contended that he was as guilty of these contempts as the 6th respondent, because the 6th respondent was in truth acting upon the instructions of the 3rd respondent. There is some support for this contention. After all, the Oriental Daily News was complaining about the treatment of the Oriental Press Group as a whole, and not merely of the Oriental Daily News. In addition, it had at one stage been suggested that the persecution of the Oriental Press Group had something to do with a long-running feud between the previous Administration and the Ma family, of which the 3rd respondent was a member. We wholly reject the preposterous suggestion that the 3rd respondent was unaware of the campaign against the Judiciary. It is quite clear that on this issue both the 6th respondent and Mr Mak were economical with the truth. They wanted us to believe that the 3rd respondent knew absolutely nothing about the publications and the paparazzi operation. It was na?ve even to make such a suggestion. We are quite sure that the 3rd respondent must have known of the campaign and operation. But mere knowledge is not good enough. Nor is inaction sufficient to find him responsible for the contempt. The prosecution is, in our view, very far from proving beyond a reasonable doubt that the 3rd respondent instigated the campaign and thereby procured the publication of the articles complained of. 110. The liability of the 3rd respondent was also put on the footing that he was the Chairman of the Board of Directors of the 1st respondent. A director of a company guilty of contempt can himself be guilty of contempt, so it was said, in three different ways:
111. We have not discerned anything to support propositions (i) and (iii). On strict liability, the case of Director General of Fair Trading v. Buckland [1990] 1 WLR 920 seems to support the contrary. It was held in that case that where a director was aware of the court order or undertaking given to the court but was passive i.e. had not procured nor aided or abetted, nor sought to interfere with the administration of justice nor wilfully blinded himself as to the breach of the court order or undertaking, he might not be liable. The court noted that Borrie & Lowe refers to no authority to support the proposition that a director would be held liable for contempt. 112. The authorities in support of proposition (ii) relate to cases in which directors were sought to be found liable for breach of an injunction made against the company or an undertaking given by the company. Those cases are very different from the present one. The theme in those cases is that only responsible directors would be liable for contempt for breach of a court order or an undertaking given to the court. Some degree of involvement in the running of the company, or in the giving of the undertaking, or in the breach of the court order or undertaking would be required in order to fix the directors of the company with liability for contempt. The responsible directors would usually be those who are in a position to give instructions as to the way the company is run, and as to whether the court order or undertaking is to be complied with. They would be the persons who could properly be called the "minds" of the company (see Tesco Supermarkets Ltd. v. Nattrass [1972] AC 153). But in our judgment, knowledge of the commission of the acts complained of coupled with the absence of any attempt to prevent their commission, outside the limited field of contempts for breach of court orders or undertakings, cannot be a sufficient basis to declare a director of a company liable for the contempts of the company. 113. We have not overlooked what Lord Goddard CJ said in R. v. Bolam ex p. Haigh [1949] 93 Sol Jo 220:
However, these remarks were simply meant to warn the directors not to instigate a repetition of the contempts. The court was not purporting to hold that the directors of a newspaper company could, qua directors, be liable for the contempts. If the court had been purporting to do so, it would surely have explained the basis on which liability could be imposed. 114. For these reasons, we find the 3rd respondent not guilty of the contempts alleged against him. Conclusion 115. These, then, are our reasons for finding the 1st and 6th respondents guilty of contempt for the publications in the Oriental Daily News as alleged by the Secretary for Justice and the 6th respondent guilty of contempt for the pursuit of Godfrey JA. 116. We fear that we have not done justice in this judgment to the wide-ranging arguments of counsel, but we have dealt in this judgment with those issues on which, in our view, the outcome of this case depends. There will now have to be a further hearing at which we must decide on the appropriate sentences to be imposed. That hearing will take place on a date to be fixed. The 6th respondent is required to attend that hearing, as is the 3rd respondent in his capacity as Chairman of the Board of Director of the 1st respondent. Finally, this has been a case in which, pursuant to section 32(3) of the High Court Ordinance (Cap. 4), the Chief Justice directed that the proceedings be heard by two judges. In keeping with the spirit of that direction, this judgment has been a collaborative effort, which has been reflected in the heading to the judgment. However, in one respect, our approaches have been different. Chan CJHC has the advantage of bilingualism, and has considered the articles both in their original Chinese versions and in their English translations. He takes the view that while the English translations are literally not inaccurate, they do not convey the flavour of the originals. On the other hand, because Keith J is monolingual, he has relied solely on the English translations. However, even though we have therefore approached the articles from different standpoints, we are united in our view that the articles constituted serious contempts of court.
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., Mr. Jason Pow and Mr. Gordon Fisher, 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: |
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