R. v. Yip Kai Foon

HCCC000271/1996

IN THE HIGH COURT OF HONG KONG

1996, NO. 270 & 271

HEADNOTE

Criminal law and procedure - application for permanent stay of proceedings - likely effect of gutter-press journalism on jury - adverse and potentially prejudicial pre-trial publicity on film and in magazines.

1996, NO. 270 & 271

IN THE HIGH COURT OF HONG KONG

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Coram: Stuart-Moore, J. in Court.

Dates of hearing: 29 and 31 January 1997

Date of ruling: 31 January 1997

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Application by Yip Kai-foon
for Permanent Stay of Proceedings

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1. In October 1985, Yip Kai-foon (the Applicant) was convicted on two counts of handling stolen jewellery and of two firearms offences. He received a total sentence of eighteen years' imprisonment.

2. After further proceedings, which at one stage reached the Privy Council, the Court of Appeal ultimately reduced the overall sentence to sixteen years.

3. On 24 August 1989, whilst serving his sentence, the Applicant escaped from Queen Mary Hospital. He was not apprehended until 13 May 1996, when he was seen in Kennedy Town. He was arrested after allegedly exchanging shots with the police. The escape and subsequent kidnapping of a van driver and his son in 1989 are the subject of indictment 271. The 1996 events in Kennedy Town, which give rise to serious firearms offences, are the subject of indictment 270. The first of these trials is due to commence on 10 February 1997. The second trial is listed to start as soon as the first is completed.

4. However, in the light of a number of articles appearing in magazines, together with a film that has been loosely modelled on what is alleged to have been the criminal lifestyle of this Applicant, I am now asked to stay these proceedings against him permanently. Mr. Grossman Q.C., on his behalf, has argued that some of the publicity about this Applicant has been so adverse to him that it would now be impossible to hold a fair trial. This is because, he submits, there is a serious risk that potential jurors may have been so prejudiced against the Applicant, from what they have seen or read, that whatever instruction they might be given by the trial judge, it is more probable than not that some serious prejudice will remain lodged in their minds against him.

5. There is general agreement about the legal basis for this application. In George Tan Soon-gin, H.C. Case 443 of 1993 and 50 of 1994, I had cause to review the authorities as they relate to stay applications generally and to adverse pre-trial publicity in particular. I note that the Applicant's list of authorities contains references to only two law reports which were not cited in the Tan case. These are R. v. Lo Chak-man, (1994) HKPLR 467 and Yip Kai-foon v. Wang Fat Film Production Co. Ltd., H.C. Case A.8870 of 1996 (unreported). There is a third report, R. v. West [1996] 2 Cr.App.R. 374, which was referred to in Tan but was not then in print. The prosecution's list of authorities adds nothing further to the long list of cases cited or referred to in the arguments during the Tan stay application.

6. Accordingly, there is no purpose in conducting a further review of the authorities. I shall proceed on the accepted basis that I have a discretionary power to stay these proceedings if it would be an abuse of the process of the Court for this case to proceed to trial as the result of the adverse pre-trial publicity there has been.

7. In deciding whether to exercise my discretion, which is only to be used in the most exceptional circumstances, I would have to be satisfied on a balance of probabilities that the Applicant has suffered serious prejudice to the extent that no fair trial can now be held.

8. Mr. Grossman Q.C. has submitted, in the course of his lengthy but carefully presented arguments, that this would be the only reasonable view for this Court to take. He has argued with some force that the adverse publicity takes a particularly serious and unfair twist in the examples he has brought to my attention, because much of it involves details about the Applicant which are sheer invention. This appears to have been done in order to make the stories about him more saleable.

9. Mr. Grossman Q.C. has rightly set out to distinguish this case from several leading English cases involving grave crimes which were tried in the aftermath of considerable adverse publicity. These cases had attracted publicity on a wide scale and, in some of them, over a long period of time because of a very real public interest in what was taking place. However, a common factor to most of these cases is that the reporting was fair, accurate and reasonable. The classic example of that is to be found in R. v. Ronald Kray and Others (1969) 53 Cr.App.R. 412 where Lawton J., about to start a second murder trial, after wide publicity had been given to Kray's murder conviction in an earlier trial, expressed himself (at page 414) as having enough confidence in his fellow-countrymen to think that they were capable to looking at the matter fairly and without prejudice, even though they might have to disregard what they had read in a newspaper.

10. However, there are some other reported cases where the comment fell far short of being fair, let alone accurate.

11. In R. v. Taylor and Taylor (1994) 98 Cr.App.R. 361, the publicity that attended that trial was described by McGowan L.J. as "unremitting, extensive, sensational and misleading". Whilst this was not a stay application, in quashing the convictions the English Court of Appeal felt unable to order a re-trial because no fair trial could now take place. McGowan L.J. (at page 369) said this:

"But we find it quite impossible to say that the jury were not influenced in their decision by what they read in the press.

The principle, as enunciated in the case of McCann (1991) 92 Cr.App.R. 239 is, that if the media coverage at trial has created a real risk of prejudice against the defendants, the convictions should be regarded as unsafe and unsatisfactory. We were troubled, at one stage, by the fact that defence counsel did not, at trial, ask the judge to discharge the jury because of the press coverage. Mr. Nutting has, however, with typical fairness, provided the answer ........ We are satisfied that the press coverage of this trial did create a real risk of prejudice against these defendants ........"

12. In the unreported case of R. v. Knights, at Harrow Crown Court on 3 October 1995, H.H. Judge Sanders observed that certain reporters were determined to run a hate campaign against Knights, unchecked by their editors and without any regard to the interests of justice. Proceedings in that case were stayed, as they were in R. v. Reade, Morris and Woodwiss (unreported) at the Central Criminal Court on 15 October 1993, where Garland J. observed that it was "impossible adequately to convey by description, the volume, intensity and continuing coverage" in describing the prejudice suffered by the police officers accused of fabricating evidence against the so-called 'Birmingham Six'.

13. These cases illustrate, apart from the important and helpful guidance they provide on the application of the discretionary power to stay proceedings in such circumstances, that each case needs to be very carefully examined on its own facts.

14. With the principles from the authorities clearly in mind, I now propose to look at what are said to have been some of the worst examples of the adverse publicity in this case. I shall deal firstly with the film about which there is complaint, and lastly with the magazine articles which have been specifically drawn to my attention.

15. Within a few weeks of the Applicant's re-arrest in 1996, his solicitor, Mr. Anthony Kwan Wai-ming of Messrs. Anthony Kwan and Co., read in a newspaper that Wang Fat Film Production Company Limited had produced a film entitled, in one of the translations I have been given: 'Life will never be twice'.

16. The publicity claimed that the film reflected the 'real story of Mr. Yip Kai-foon'. A letter to the film producer met with no response, and so Mr. Kwan went to watch the film on 2 August 1996.

17. In brief, and I accept the general description I have been given about the film, the Applicant is depicted as a murderous robber. Mr. Recorder Tang Q.C. in Yip Kai-foon v. Wang Fat Film Production Company Limited granted an application on 9 August 1996 for the continuation of an injunction against the film company and said (at page 6) of his judgment:-

"I have already mentioned that the film also shows the character based on the Plaintiff to be guilty of murder and robbery. It will bring, in my opinion, the administration of justice into disrepute if, prior to guilt being established in a court of law, a notorious accused person can be portrayed as guilty on screen. Here, there is a real risk that justice will not be done, at least it will not manifestly have been seen to be done".

18. The film had only run for a few nights before the original injunction was imposed.

19. A new and more serious development followed in September 1996 when it was learned that a video compact disc was available in the shops. The relevant authorities appear to have done very little to prevent this, despite all proper efforts to draw attention to the situation which were made on behalf of the Applicant. By 28 January 1997, the film, newly entitled 'King of Robbery', was listed as either the fourth or fifth most popular film in a chart of the top 50 films at several well-known video rental shops in Central. Some considerable editing, as Mr. Chapman points out, had taken place in this later version of the film, but it was nevertheless a highly unpleasant characterisation of someone who many would perhaps recognise as intended to be loosely based on the Applicant's criminal activities. However, there is a prominent disclaimer in the opening credits and the film fits the fairly typical mould of make-believe 'cops and robbers' movies with which Hong Kong is familiar.

20. Having said that, I am quite satisfied that no one with an ounce of common sense or intelligence would mistake this film for anything that purported to be factually accurate. The potential prejudicial effect of such a film is of course difficult to gauge, but I am confident it is only slight.

21. I turn now to the written articles which have been brought to my attention. I shall leave aside those articles which it is accepted amount to legitimate press comment about a case which has aroused considerable public interest.

22. The principal offending articles all appeared in the Chinese press. I have been supplied with translations of these. They are as follows:

(1) Eastweek, number 186, dated 16 May 1996.

(2) Next Magazine, number 323 (May edition).

(3) Ming Pao Magazine, dated 19 May 1996.

(4) Next Magazine, dated 28 June 1996.

(5) Eastweek, dated 4 July 1996.

23. Although I was also invited to consider a number of other articles, including those dated 20, 26 and 30 July, 1, 2 and 28 August 1996, and 11 January 1997, all of which appeared in the Oriental Daily News, and an article in Eastweek dated 25 July 1996, their significance, it seemed to me, was far less than the others to which I have referred. It is, therefore, the list of five offending articles on which I have concentrated for the most part.

24. The point made on behalf of the Applicant is a similar one to that which Mr. Grossman Q.C. made when describing the potentially damaging effect of the film. It is simply this. These articles go well beyond what any free society would recognise as the justifiable reporting of a current news item of public interest. These articles do not attempt to reflect the truth, but they pretend to do so. Using the typical style of gutter-journalism, it is submitted these articles by Eastweek, Next and Ming Pao Magazine pretend to have a true story in order to mislead the public into purchasing those journals. In truth, the stories were a fiction based on rumour or pure guesswork. They do not stand the test of even the most superficial kind when comparing the Applicant's factual background with the stories appearing in these magazines. No doubt, for good commercial reasons, the magazines sensed that to spell out the truth would be to spoil a good story. Accordingly they invented the facts and sold them as the truth.

25. I am not here to adjudicate on contempt. However, in setting the tone of these articles, I accept for the purpose of these stay proceedings that they suggest that the Applicant is a cold-blooded robber, who is a specialist with firearms and who is well connected to certain criminal organisations.

26. Most significantly, the article in the Ming Pao Magazine sets out a list of nine highly-publicised robberies which it alleges were committed by the Applicant while he was on the run from police between June 1991 and April 1992. In each robbery, it alleged that the Applicant stood in the doorway as a lookout with an AK-47 which he would have no hesitation in firing in the event that anyone approached. He was described as fearless, heavily armed and proud to challenge the police.

27. 'Next' Magazine in May 1996 was equally keen to portray the Applicant as some kind of legendary figure and, under the heading 'Half Life Legend', he is described as a ruthless legend among criminals and police. The article continues by giving graphic details about the Applicant's criminal history which seem to be based upon pure speculation. They are apparently designed to bolster the terrifying image the magazine is seeking to portray in an effort presumably to boost sales of this publication.

28. It goes without saying that almost everything in the article is factually incorrect. However, even if its content was correct, that would provide a reason to any responsible editor or journalist not to publish any of those details before the trial. On one view, it is all the more important, when portraying potentially prejudicial fiction as fact, that this is not done until after the completion of any trials that are outstanding.

29. 'Next' Magazine is no stranger to the courts and, in R. v. Lo Chak-man (No.2), I note it was again this publication that offended in similar fashion. In that instance, it had published in 1992 an article in respect of a drug money-laundering case that was due to be tried, and quoted prejudicial information which had allegedly been gleaned from 'police sources'. A stay of the criminal trial was not ordered by Gall J. as the article was small, it stood alone, it was only published once and the trial was not due to be heard until October 1994.

30. It is contended on behalf of the Applicant that the lies and falsehoods contained in the 'Next' article in May were made even worse by what appeared in the June 1996 edition. This included further speculative revelations which appear to belong in a work of fiction. The magazine maintains, however, that the facts revealed about the Applicant are true.

31. The Eastweek magazine is rather more general in its disreputable attack upon the Applicant's character. In common with the articles from the other magazines to which I have referred, they are not even able to report with accuracy that the Applicant was sentenced to a long term of imprisonment for handling stolen jewellery. Presumably to report the fact that he was acquitted of the charges of robbing the jewellery shops from which the stolen goods came, would have spoiled the story appearing under the headline 'Cold-blooded Robber, the Number One Enemy of the Police'.

32. I have not attempted to set out in any detail the stories that have appeared in the three magazines to which I have made specific reference. Mr. Grossman Q.C. describes them as irresponsible because these untrue accounts are unfair to a man who it was known, when they went to print, was awaiting trial on serious charges. Even if the information was true, which on any view all but a small fraction is not, it is precisely the sort of material that is never revealed to a jury for fear that it may prejudice them. In the event that a jury is told, by some mishap or inadvertence, about a highly prejudicial detail, the usual remedy is to discharge them and start again with a fresh jury that is untainted by what the previous jury heard. Accordingly, it is Mr. Grossman's submission that there is now, on account of the film and publications of the kind he has brought to my attention a serious risk that a future jury may be so tainted by prejudice, as the result of grossly adverse pre-trial publicity, that a fair trial may no longer be possible.

33. Mr. Chapman has responded to these submissions by accepting, as he clearly must, that the Applicant has achieved a high degree of notoriety. However, he argues that it is well established in common law jurisdictions that juries are quite capable of deciding cases on the evidence placed before them during the trial, without regard to what they may have heard outside the courtroom. Mr. Chapman relies on the principle propounded by Brennan J. in R. v. Glennon (1992) 173 C.L.R. 592 (at page 613):

"From these formulations it appears that some degree of risk, albeit not a substantial risk, to the integrity of the administration of criminal justice is accepted as the price which has to be paid to allow a degree of freedom of public expression when it is exercised in relation to a crime that is a topic of public interest. Clearly enough, though the fairness of a criminal trial may be at some risk in such a case, the trial proceeds. If a punishable contempt occurs, ex hypothesis there is a real risk of prejudice - perhaps, to adopt the formulation of Mason CJ, a substantial risk of serious interference with a fair trial. But it does not follow that, where a punishable contempt of court has been committed, the trial must be aborted... Administration of the criminal law cannot be made hostage to conduct amounting to contempt of court, even if the contempt be flagrant. If it were otherwise, the perpetrators of crimes which shock the public conscience ... would oftentimes go untried and unpunished, for pre-trial publicity prejudicial to an accused is stimulated by the notoriety of the accused and the heinousness of the crime. Yet it would undermine the criminal law's protection of society and its members to refuse to allow the law to take its ordinary course in these cases ... No community governed by law could acknowledge that persons outside the control of the State could possess such a capacity for disrupting the administration of criminal justice."

At page 614, Brennan J. continued:

"Of necessity, the law must place much reliance on the integrity and sense of duty of the jurors. The experience of the courts ... is that the reliance is not misplaced."

34. As Mr. Chapman points out, the principle formulated in Glennon's case is reinforced by the recent observation of Lord Taylor C.J. in R. v. West (1996) 2 Cr.App.R. 374 at p.385 and 386:

"We turn to the press coverage in advance of the trial. There is no doubt that this was extensive and hostile to the Wests. It occurred most fully in two tranches. The first was upon the discovery of the buried bodies. The second followed upon Fred West's suicide. Much of the press coverage was directed at Fred. There were references to 'House of Horrors'. There was criticism of the authorities for failing to stop West's murderous course when he was before the magistrates' court with the applicant in 1973. It is true that there were also reports which were adverse to the applicant, referring to her as a nymphomaniac and a prostitute. But, however lurid the reporting, there can scarcely ever have been a case more calculated to shock the public who were entitled to know the facts. The question raised on behalf of the defence is whether a fair trial could be held after such intensive publicity adverse to the accused. In our view it could. To hold otherwise would mean that if allegations of murder are sufficiently horrendous so as inevitably to shock the nation, the accused cannot be tried. That would be absurd. Moreover, providing the judge effectively warns the jury to act only on the evidence given in court, there is no reason to suppose that they would do otherwise. In Kray (1969) 53 Cr.App.R. 412 at p.414, 415, Lawton J. said:-

'The drama ... of a trial almost always has the effect of excluding from recollection that which went before.'

That was reiterated in Young and Coughlan (1976) 63 Cr.App.R. 33 at p.37. In ex parte The Telegraph Plc. (1994) 98 Cr.App.R. 91, 98 [1993] 1 WLR 980, 987, I said:

'a court should credit the jury with the will and ability to abide by the judge's direction to decide the case only on the evidence before them. The court should also bear in mind that the staying power and detail of publicity, even in cases of notoriety, are limited and the nature of a trial is to focus the jury's minds on the evidence put before them rather than on matters outside the courtroom.'"

35. I am bound to say that there is much force in all of those sentiments. Whilst accepting that it may be necessary in extreme circumstances to order a stay of proceedings on the ground of adverse pre-trial publicity, I have no hesitation in saying that it does not seem to me that this is a case in which I ought to exercise my discretion in favour of the Applicant. I accept that what I have seen and read is potentially prejudicial. All of the material about which complaint is made is of a type which is sensational and commercial.

36. Even assuming that people saw the articles in the magazines, and could remember them almost nine months later, it would be difficult to imagine sensible people, being sworn in as jurors to decide the Applicant's case in February 1997, being prejudiced by what they had read. The solemnity of the occasion, and the stern warnings of the trial judge to decide the case only upon the evidence they hear in court, and to ignore anything they may have heard outside it, would more than counter-balance the ill effects of gutter-journalism, however reprehensible that may have been.

37. What applies to the magazines applies equally to the film. Although it is still on current release and shows, like the magazines, a distortion of the truth, again, no sensible persons could begin to give any credence to such an obviously sensational film, in the way that they might if it had purported to be a documentary about the Applicant's life and lifestyle.

38. In this context I have also taken into account two programmes that were screened on 15 May 1996 that did purport to be serious programmes. They each contained grossly distorted and false information about the Applicant. These were: Focus on Focus (TVB) and Hong Kong Today (ATV). However, they were a long time ago, and any prejudicial effect they may have had has now faded into insignificance.

39. More seriously again, because it occurred only two days ago, on 29 January 1997, TVB saw fit to describe the Applicant as a 'notorious gangster' in news bulletins. On its own, it is not in my judgment a sufficient ground for saying that these charges should be stayed, but I hope the Attorney-General has it in mind that any further breaches of the rules of contempt should be swiftly and firmly dealt with.

40. Finally, I have not made reference to the 'Survey on Media and Justice' carried out by the University of Hong Kong. This report was commissioned by the solicitors acting for the Applicant. It is rightly not relied upon to any great extent by Mr. Grossman Q.C. Its findings do not go very far, if at all, towards supporting the argument that public attitudes generally towards this Applicant may have been adversely influenced by media reports.

41. In the outcome, therefore, it is my ruling that this application for a stay of proceedings must fail. The trial will be listed on 10 February 1997 at 9:30 a.m. for the arraignment.

Representation:

Mr. Chapman, S.C.C. and Mr. H. Melwaney, S.C.C. for Crown.

Mr. C. Grossman, Q.C. & Mr. Eric Kwok instructed by Messrs. Anthony Kwan & Co. for the Applicant.