Mong Hon Ming v. Anthony Yuen
Read the full judgment text of HCAL 137/2004 on BabelCite. This High Court CFI judgment was delivered on 15 November 2005.
1. This is an application for judicial review. The applicant is facing prosecution for the offence of publishing an obscene article, contrary to s.21(1)(a) of the Control of Obscene and Indecent Articles Ordinance, Cap.390 (‘the Ordinance’). In August 2004, the applicant (and his co-accused) applied to the magistrate before whom he was to be tried for a permanent stay of proceedings. He did so on the basis that a fair trial was not possible and/or, even if possible, that the prosecution proce
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HCAL 137/2004 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 137 OF 2004 --------------------- BETWEEN
---------------------- Before : Hon Hartmann J in Court Dates of Hearing : 18 and 19 July 2005 Date of Handing Down Judgment : 15 November 2005 ------------------------- J U D G M E N T ------------------------- Introduction 1.This is an application for judicial review. The applicant is facing prosecution for the offence of publishing an obscene article, contrary to s.21(1)(a) of the Control of Obscene and Indecent Articles Ordinance, Cap.390 (‘the Ordinance’). In August 2004, the applicant (and his co-accused) applied to the magistrate before whom he was to be tried for a permanent stay of proceedings. He did so on the basis that a fair trial was not possible and/or, even if possible, that the prosecution process had been so gravely manipulated that it would be an affront to the court’s sense of justice and propriety to allow the prosecution to continue. In a ruling given on 24 August 2004, the magistrate dismissed the application. When requested to review his decision, he confirmed it. It is in respect of these two decisions that the application for judicial review is made. 2.Mr Dykes SC, leading counsel for the applicant, has advanced two grounds, each essentially integral to the other, as to why the magistrate was wrong in law not to grant a stay of proceedings and why this court should now do so. The two grounds may be summarised as follows :
Background 3.On 30 October 2002, an article was published in a magazine called Eastweek. At the time of publication, the applicant was the Chief Editor of the magazine. 4.The article bore the heading (in translation) : “Tragedy in entertainment business – nude photo of abused alphabet actress exposed.” The photograph to which the heading referred depicted a woman who was naked from the waist up, only her nipples and eyes blurred by photographic process. Her head was bowed. Although the woman was not named, the article said that she was a well-known actress. It was the thrust of the article that the actress had somehow offended criminal elements in the entertainment industry who had subjected her to the humiliation of being photographed in this way. The article went to some lengths to emphasise the authenticity of the photographic evidence. It was said that it had been taken against the actress’s will and in abusive circumstances. The article purported to be a morality piece, a warning to aspiring actresses to beware the darker side of the industry. 5.The public reaction to the article was hostile. The article was not viewed as a morality piece. It was seen instead as offending common standards of decency and further humiliating the woman who was the unwilling subject of the photograph. High officials in the Administration condemned it as did prominent members of the entertainment industry. The Chief Executive, so it was reported, expressed his ‘extreme indignation’. 6.To illustrate the level of condemnation, on 2 November 2002, just three days after the publication, a journal called WiseNews described the public reaction in the following terms :
7.Over the following days other journals and newspapers reported similar expressions of community condemnation. 8.On 2 November 2002, reacting to the public outcry, Eastweek published an apology which read :
9.Of course, the acceptance that the article had caused grave offence to a substantial section of society did not amount to any admission that its publication had breached the criminal law. 10.Not surprisingly, public condemnation of the Eastweek article was accompanied by official investigation. This investigation was both administrative and criminal. 11.In addition to the police commencing investigations, on the day after publication of the article the Assistant Commissioner for Television and Entertainment Licensing made an application in terms of s.13(2) of the Ordinance requiring the Obscene Articles Tribunal (‘the Tribunal’) to classify the article; that is to determine whether it should be classified as indecent or obscene. 12.It was this action on the part of the Assistant Commissioner that forms the basis for the contention that there was a manipulation of the process leading to the prosecution of the applicant which amounted to an abuse of executive power. 13.Under Part III of the Ordinance, the Tribunal has the jurisdiction to classify an article placed before it. By that process it assigns the article to a particular class, each class defined by common attributes. The Tribunal may classify the article as obscene, indecent or neither of these and therefore suitable for publication without restraint. 14.S.13 of the Ordinance, which is in Part III, stipulates who may submit an article for classification. It reads :
15.S.13(1) therefore permits a broad range of people who either seek to publish an article, or have already published it, to have it classified. 16.Equally s.13(2) permits the Secretary of Justice and authorised public officers, persons not themselves involved in the publication of an article, to seek nevertheless to have it classified. The circumstances in which the Secretary of Justice and authorised public officers may make such an application are not constrained by the language of the Ordinance. 17.It is not disputed that the Assistant Commissioner for Television and Entertainment Licensing was an authorised public officer for the purposes of s.13(2) of the Ordinance and was therefore permitted in terms of the Ordinance to make his application. 18.It is self-evident, I think, that an application for classification of an article, especially before its publication, must often be dealt with speedily. It would appear to be for this reason that, when an application is made for classification under s.13, it results in the Tribunal making, in the first instance, what is called an ‘interim classification’. 19.In terms of s.14 of the Ordinance, speed being of the essence, the Tribunal is required to make its interim classification within five days. The Tribunal sits in private without the attendance of the party who has submitted the article or any other interested party. The Tribunal is not obliged to give any reasons for its interim classification but, if it classifies any part of the article as obscene or indecent, it must identify that part. The Tribunal may give guidance to the party who has submitted the article. 20.An interim classification may be challenged, a process to which I shall refer shortly. If, however, it is not challenged within the time prescribed then it is deemed to be ‘the classification of the Tribunal which made it’ : see s.15(5). 21.At this juncture, it should be said that the classification of articles under Part III of the Ordinance is not the sole function of the Tribunal. In law, in respect of both civil and criminal proceedings, it is only the Tribunal which has the power to determine an article as obscene or indecent. In this regard, s.29(1), which is set in Part V of the Ordinance, reads :
22.S.28, referred to in s.29(1)(c), reads as follows :
23.It follows that if criminal proceedings are instituted against a person for an alleged contravention of the Ordinance and it is disputed whether an article is obscene or indecent – as it is disputed by the applicant in the present case – that issue does not fall for determination by the criminal court. It must instead be referred to the Tribunal for determination. S.29(2) of the Ordinance states :
24.Returning to the chronology of this matter, in response to the request made by the Assistant Commissioner for Television and Entertainment Licensing pursuant to s.13(2) of the Ordinance, on 4 November 2002 the Tribunal made an interim classification. Its interim classification was that the Eastweek article was obscene. 25.This classification was apparently announced to the media by the Secretary for Commerce, Industry and Technology. In its edition of 5 November 2002, Ta Kung Pao reported what had been said at the press conference :
26.On the same day; that is, on 5 November 2002, WiseNews published an article making reference to what it considered to be the Administration’s ‘high-profile’ handling of the issue :
27.Some five days after the Tribunal had made its interim classification under s.14 of the Ordinance, the publisher of the Eastweek, the New Media Group Limited, instituted proceedings under s.15 of the Ordinance requiring the Tribunal to review its interim classification at a full hearing. 28.S.15 directs that, for a full hearing, the Tribunal shall consist of a magistrate (who shall preside) and four or more adjudicators, not two or more as provided by s.7. 29.It is also to be noted that, in terms of s.15(2)(b), any adjudicator who has sat as a member of the Tribunal in making the interim classification is not competent to sit as a member of the Tribunal at a full hearing. 30.At a full hearing, any person who would have been entitled to submit an article for interim classification under s.13(1) of the Ordinance is entitled to appear and be heard. Such persons would include the author, printer, publisher and any person who commissions the publication of an article. The applicant, however, chose not to appear personally and be heard at the full hearing. Nor did he chose to be represented. 31.The full hearing took place in January 2003. On 20 February 2003, the Tribunal gave a reasoned judgment confirming its interim classification that the article was obscene. 32.Some two months after this judgment had been given, criminal proceeding were instituted against the applicant for a contravention of s.21(1)(a) of the Ordinance; that is, for publishing an obscene article. The applicant was one of a number of accused, all of whom, it was alleged, had played a role in the publication of the article. 33.It must be inferred, I think, that the police, who had been investigating the publication and who instituted the proceedings, would have been influenced to some degree by the classification of the Tribunal given after a full hearing. 34.Some four months after the institution of criminal proceedings against him, the applicant sought a permanent stay of those proceedings. I have in an earlier judgment described one of the applicant’s grounds in the following terms :
35.In respect of the application for a stay, the magistrate made a ruling as to procedure. The exact nature of the ruling is not relevant. Suffice to say that the ruling was challenged as being wrong in law. That challenge came before this court by way of judicial review and (in the judgment to which I have made mention in the preceding paragraph) was granted. 36.In August 2004 – procedural matters having been rectified – the application for a permanent stay was determined on its merits by the magistrate. In a ruling given on 24 August 2004, he dismissed the application. When requested to review his decision, the magistrate confirmed it. 37.It is these two decisions dismissing the application for a permanent stay that are the subject of this second application for judicial review. Orders of certiorari have been sought to bring up and quash the two decisions. Declarations have also been sought that it would be unlawful not to grant a permanent stay. Principles governing applications for a permanent stay 38.The magistrate unquestionably had the power in his discretion to stay the proceedings before him, that power resting in the inherent power of a court to prevent an abuse of its own process. 39.The power to stay proceedings may be exercised in two sets of circumstances. First, where, notwithstanding the range of remedial measures available at trial, a fair trial for the accused is found to be impossible. Second, where, although a fair trial is possible, there has been an abuse of power by the prosecuting authorities which so offends the court’s sense of justice and propriety that to allow the matter to proceed would so undermine the integrity of the judicial process as to amount to an abuse of that process. In the present case, the applicant has relied on both grounds. 40.When a stay is sought on the first ground, on the assertion, that is, that a fair trial is not possible, Lord Lane CJ, in A-G Reference (No.1 of 1999) [1992] QB 630, at 644, said :
41.In HKSAR v. Lee Ming Tee and Another (2001) 4 HKCFAR 133, at 148H, Ribeiro PJ, in considering the applicable principles, said that it was a power only to be exercised in exceptional cases. He emphasised that the power to ensure a fair trial is not a power to stop it before it starts. It is instead a power to mould the procedures of the trial to avoid or minimise prejudice to the accused. Fairness, he said, is not to be judged in absolute terms but in practical terms. In this respect, he cited Brennan J in Jago v. District Court of New South Wales (1989) 168 CLR 23, at p.49 :
42.As to the duties of a judge when faced with obstacles going to the fairness of proceedings, Ribeiro PJ again adopted the words of Brennan J in Jago :
43.Proceedings may still be stayed even though a fair trial is possible. However, this will only take place on those rare occasions when the circumstances have involved an abuse of power which has so offended the court’s sense of justice and propriety that the entire prosecution is held to be tainted as an abuse of process. As to the principles that govern such rare cases, in HKSAR v. Lee Ming Tee and the Securities and Futures Commission (Intervener) [2004] 1 HKLRD 513, at 565 (para.182) Sir Anthony Mason NPJ adopted the principles enunciated by Lord Steyn in R. v. Latif [1996] 1 WLR 104 (at 112) :
44.Sir Anthony Mason went on to cite with approval the observations of L’Heureux-Dubé J in R. v. O’Connor (1996) 130 DLR (4th) 235, at 277, that, where a fair trial remained possible, a stay would only be ordered “where irreparable prejudice would be caused to the integrity of the judicial system”. He then noted that, in the absence of a finding of bad faith, this high standard would rarely, if ever, be satisfied. Even a finding of bad faith, he said, would not necessarily be conclusive. 45.There is clear authority to the effect that there may be an infinite variety of cases in which it would be proper to order a stay on the basis that not to do so would cause irreparable prejudice to the integrity of the judicial system. This is subject, however, to the clear reservation that a stay is not to be ordered solely to discipline the investigative or administrative authorities which have played a part in bringing about a prosecution. In R. v. Horseferry Road Magistrates Court, ex parte Bennett [1994] 1 AC 42, at p.74, Lord Lowry said :
The applicant’s assertions of prejudice 46.On behalf of the applicant, it has been contended that, owing to the history of the investigation and prosecution of this case, a fair trial before the criminal courts is now impossible. More than that, the manipulation – indeed exploitation – of the investigation and prosecution process has been so grave as to constitute an abuse of power which has undermined the integrity of the judicial process. 47.It is the applicant’s assertion that :
48.In advancing his submissions, Mr Dykes, for the applicant, placed considerable weight on the observations of Godfrey JA (as he then was) in Pao Wai Louis and Another v. Obscene Articles Tribunal [1995] 1 HKC 51, at 56 and 57. 49.On my reading of the judgment, the central issue was whether a photograph on its own was capable of constituting an ‘article’ under s.10(1) of the Ordinance or whether it had to be considered in the context of the article as a whole. However, in the course of his judgment, Godfrey JA considered the fact that there had been an interim classification by the Tribunal under Part III of the Ordinance followed by a criminal prosecution, the chronology being the same in the present case. The judge made the following observations :
50.These observations, in my view, were obiter dicta. But, in looking to basic principles, they must be persuasive, especially when read in the context of another authority relied upon by Mr Dykes, that of Attorney-General v. News Group Newspapers [1984] 1 QB 110. The factual background to this second case is set out in the headnote which reads :
51.In law, context is everything and it does need to be said that in Attorney-General v. News Group Newspapers, the newspaper in question orchestrated a crusade to ensure that the doctor was prosecuted. To illustrate, in the judgment, Watkins LJ said :
52.In that factual context, the Divisional Court held that there had been a common law contempt committed by News Group Newspapers. The findings of law leading to that determination are set out in the headnote as follows :
The issues to be determined 53.In the present case it is said that the Administration, in seeking an interim classification of the published article, acted in a way which was designed to, or at the very least had the effect of, encouraging a prosecution on the basis that there was now shown to be a firm legal foundation for demonstrating guilt. It was said that, as such, the Administration interfered with the administration of justice. But, even if such findings are made, they cannot, of themselves, determine the issues of whether there should be a stay. As I have said earlier, a stay is not a rod of chastisement to be used to discipline official misconduct : see para.45. 54.The issues to be determined, it seems to me, are more precise :
Was there an intent to interfere with the administration of justice? 55.The Assistant Commissioner for Television and Entertainment Licensing has not submitted an affidavit or affirmation as to his reasons for seeking an interim classification under Part III of the Ordinance. 56.However, it must be recognised that the Assistant Commissioner was authorised under the Ordinance to seek an interim classification. His statutory authority was not restrained to any prescribed time or circumstance. 57.It must also be recognised that his application was not out of the ordinary, the power to seek interim classifications having been used on a number of occasions. 58.In my view, it must further be recognised that, even in respect of one-off publications, there may be occasions when it is in the public interest to obtain interim classifications. Most often this will arise when there is a perceived danger of further publication of an article, often by way of copy-cat publishing. An interim classification acts to prevent this, putting those who may be tempted to re-publish on notice that it will be an offence to do so. In this regard, s.25 of the Ordinance reads :
59.In Pao Wai Louis and Another v. Obscene Articles Tribunal (cited in paras.48 and 49), Godfrey JA said that it seemed to him to be ‘extraordinary’ that the procedure of seeking an interim classification should be employed for a one-off publication. With the greatest of respect, I cannot agree with this obiter remark. In my view, one-off publications, especially when they are (or become) notorious, may well give rise to numerous re-publications through all kinds of networks. Unless an early warning is given, the initial damage, for example, to the dignity or reputation of a well-known personality, may be multiplied many times. 60.In the present case, the published article was the subject of a media outcry. It depicted a woman naked from the waist up. It requires no imagination to anticipate that for a broad spectrum of reasons, mainly venal and exploitive, there would be a temptation to republish. That being the case, in my judgment, it goes too far, as Mr Dykes would have it, to say that there could only be one reason for seeking the interim classification in this case; namely, to try and influence the bringing of a prosecution and/or its result. The interim classification in this matter would have had the result of protecting the victim from further exploitation, a legitimate object of the Ordinance. 61.For that reason alone, in my view, the applicant must fail in any submission that the Assistant Commissioner acted in bad faith. There is simply no evidence of bad faith. 62.I do accept that one of the reasons for seeking an interim classification may have been to discover whether – prima facie at least – there were grounds for proceeding on the basis that the published article offended the Ordinance. But any interim classification, made by the Tribunal in private without the appearance of affected parties, could not possibly have been conclusive in any criminal proceedings. Indeed, for reasons which I shall give, I do not see that it would even be relevant. 63.I say that because it is apparent that the Tribunal, when exercising its jurisdiction under Part III of the Ordinance to classify articles, is a different body, possessed of different powers, and subject to different procedures and rules of evidence, from when it is exercising its jurisdiction under Part V of the Ordinance in respect of criminal prosecutions. 64.S.11 of the Ordinance specifically differentiates between the powers of the Tribunal under Part III and Part V of the Ordinance. 65.In making a determination under Part V of the Ordinance, the Tribunal is vested with the powers of a magistrate. In this regard, s.11(a) stipulates that a Tribunal :
66.In contrast when making a determination under Part III of the Ordinance, the Tribunal may determine its own procedures and may, for example, consider evidence that would be inadmissible in criminal proceedings. In this regard, s.11(b) stipulates that a Tribunal ‘may determine its own procedure’ and in particular may —
67.It is instructive to note that, when exercising its jurisdiction under Part III of the Ordinance, in terms of s.17, a Tribunal may of its own motion reconsider the classification of an article and may alter that classification. 68.In Sham Kow-ling v. Obscene Articles Tribunal (1992) 2 HKPLR 670, Deputy Judge Patrick Chan (as he then was) said that the consequence of s.11 was that, under Part V of the Ordinance —
The judge continued :
69.In summary, it seems clear to me that the Tribunal, when exercising its jurisdiction under Part III of the Ordinance, does so essentially as an administrative Tribunal, entitled to act only within the powers given to it by the Ordinance. However, when the Tribunal exercises its jurisdiction under Part V of the Ordinance, in respect, for example, of criminal proceedings, it does so as a court of the classic kind, possessing the powers and authority of such a court. 70.In making its interim classification and, when that classification was challenged, in making a classification after a full hearing, the Tribunal was acting as an administrative Tribunal. In contrast, if the Tribunal is asked to make a determination under Part V of the Ordinance as part of the applicant’s criminal prosecution, it will be acting as a court of the classic kind. 71.The classification process (under Part III) in this case was instituted by the Administration in order to obtain an administrative ruling, albeit one that had consequences in criminal law. The determinative process (under Part V) in this case, if it occurs, will take place because the police have instituted criminal proceedings and will be part of those criminal proceedings. 72.In the course of his submissions on behalf of the respondent, Mr Zervos said that the classifications of the published article by the Tribunal in November 2002 and February 2003 will be irrelevant to the criminal proceedings. In the criminal proceedings, if there must be ‘a determination’, it will be entirely unrelated to (and unaffected by) the Tribunal’s earlier ‘classification’ findings. That, in my view, must be correct. 73.In Pao Wai Louis and Another v. Obscene Articles Tribunal (cited in paras.48 and 49), Godfrey JA based certain of his remarks on the fact that, in terms of s.33(1) of the Ordinance, a document certifying that an article has been classified shall be admissible without further proof ‘in any proceedings’ and shall be conclusive evidence of the facts contained in it. In my judgment, however, again with the greatest of respect, I do not believe that s.33(1) is to be read as providing that a classification by a Tribunal under Part III of the Ordinance is to be admissible in evidence in criminal proceedings under Part V of the Ordinance. S.33(1) does not go to the question of admissibility (and thereby relevance). S.33, read as a whole, deals only with conclusive proof of a ‘classification’ or a ‘determination’ when such proof is required; for example, in respect of a classification, if proceedings are taken against a person pursuant to s.25 of the Ordinance (referred to in para.58). 74.What must be remembered is that, when the Tribunal made its interim classification, it did so in terms of s.14 of the Ordinance, sitting in private without the attendance of the applicant and without the benefit of submissions from him.. When the Tribunal was required to review its interim classification at a full hearing, the applicant played no part in that process. He chose not to make submissions himself at the full hearing or to be represented at that hearing. On that basis, it is difficult to see how the Tribunal’s classifications can in any way influence its determinations under Part V of the Ordinance when it will sit not only with new members but as a court of the classic kind determining, according to the criminal burden of proof, an issue in criminal proceedings. 75.As a court of the classic kind, of course, the Tribunal will be able to order its procedures so as to ensure that the trial of the applicant is fair. The presiding magistrate, as a professional judicial officer, will be able to give directions designed to counteract any prejudice, even an indirect residual prejudice, which the applicant might otherwise suffer. 76.In all the circumstances, I fail to see how the Assistant Commissioner can be criticised by the courts for seeking an interim classification under Part III of the Ordinance. But even if I am wrong in that regard, I fail to see how his misconduct (if it be so described) can be said to have the result of bringing about a situation in which it is impossible for the applicant to have a fair criminal trial. 77.Equally, it seems to me, even if the actions of the Assistant Commissioner can be described as misconduct, that misconduct falls far short of an abuse of process so grave that it would be an affront to the public conscience to allow the criminal proceedings against the applicant to continue. Pre-trial publicity 78.On behalf of the applicant it has also been said that the nature and extent of the publicity generated by the publication of the article makes a fair trial at this time impossible. That publicity, taken together with the classifications earlier made by the Tribunal, was of such intensity and extent that fair-minded and informed observers would conclude that there was a real possibility that any Tribunal now constituted under Part V of the Ordinance to determine the issue of obscenity in the applicant’s criminal proceedings would be biased. 79.I find nothing in this submission. I am satisfied that, properly directed, the adjudicators who form any new Tribunal will be able to put aside any prejudice generated by the publicity in late 2002 and early 2003. In this regard, it must again be remembered that the Tribunal will have a presiding magistrate, a professional judicial officer, who will be able to make appropriate directions as to law and procedure. 80.In HKSAR v. Lee Ming Tee and Another (cited in para.42) Ribeiro PJ commented that —
81.Ribeiro PJ said that in some cases adverse publicity may require an adjournment. In the present case, of course, the extensive pre-trial litigation has effectively resulted in an extensive ‘adjournment’. The level and extent of the media coverage in late 2002 is today therefore a distant memory, if indeed in many people’s minds it is even that. 82.A permanent stay based on adverse publicity, said Ribeiro PJ, would be very rare. In most cases, he said —
83.As Ribeiro PJ pointed out, the reliance on the integrity of the jury and its ability to try cases fairly, to put aside extraneous prejudice and to follow the directions of the judge, is fundamental to the jury system itself. 84.In my judgment, just as it may be assumed that a jury, properly directed, is able to overcome prejudicial publicity in the great majority of cases, so in the present case – with the publicity in any event being so much a matter of history – I am satisfied that the adjudicators, properly directed by the presiding magistrate, will be able to set aside any prejudice that may otherwise influence them. 85.Nor, in my judgment, is there any ground for suggesting – after such a long passage of time and having regard to the constitution of the Tribunal – that fair-minded and informed observers would conclude that there was any real possibility of the publicity engendered by this case so affecting the Tribunal as to result in it being biased or even having the appearance of bias. 86.In respect of this issue of publicity, I conclude by saying that, although I have dealt with it as a separate issue, I have considered it both separately and as part of the contention that the Tribunal’s classifications under Part III of the Ordinance have rendered a fair trial impossible. In this regard, I have borne in mind Mr Dykes’ submission outlined as follows in his skeleton argument :
87.I do not agree that today the prejudicial effect of the publicity generated in late 2002 remains ‘huge’. Nor do I agree that it would take an exceptional Tribunal to go against earlier administrative classifications. A new Tribunal, if formed, will consider the published article in a new context entirely; namely, as a required element of a criminal offence. It will do so under appropriate directions from the presiding magistrate. Conclusions 88.For the reasons given in the body of this judgment, I am satisfied that the magistrate was not wrong in law in refusing a stay. This application is therefore dismissed. I see no reason why costs should not follow the event and there will be an order to that effect.
Mr Philip Dykes, SC leading Mr Jon Wong, instructed by Messrs Bosco Tso & Partners, for the Applicant Mr Kevin Zervos, SC, SADPP leading Miss Agnes Chan, SADPP (Acting) of Department of Justice, for the Respondent |
Cases cited in this judgment