Secretary for Justice v. The Sun News Publisher Ltd and Others

HCMP452/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 452 OF 2006

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BETWEEN

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Before : Hon McMahon J in Court

Date of Hearing : 3 October 2006

Date of Judgment : 3 October 2006

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J U D G M E N T

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1.The Secretary for Justice applies by Notice of Motion for an order that the respondents be committed to prison or fined for contempts of court arising from their publishing of articles appearing in the Sun newspaper (“the Sun”) and the Oriental Daily News newspaper (“the Oriental Daily”) on 17 April 2005.

2.The 1^st respondent was at the material time the publisher of the Sun and the 2^nd respondent was its chief editor.  The 3^rd respondent was the publisher of the Oriental Daily and the 4^th respondent was its chief editor.

3.The articles in question were published 18 days before the commencement of the trial for rape of a Pakistani national, Mohammed Faryad (the defendant), in HCCC No. 34 of 2005 which was due to begin on 4 May 2005.

4.The trial concerned the alleged rape by him of two English women in Tai Mo Shan in October 2004.  The two victims were in Hong Kong as tourists at the time of the offences and had returned to England.  They were to fly back to Hong Kong for the commencement of the trial.

5.At a pre-trial review on 22 April 2005, it was brought to the attention of the trial judge, Deputy High Court Judge Line, that the 1^st respondent had published an article in the Sun to the effect that the defendant had sodomized fellow inmates and done other acts of a sexual nature while on remand at Lai Chi Kok Reception Centre.  The article was headlined “Burning with desire.  A Pakistani suspected of raping two English ladies in Tai Mo Shan did buggery to prisoners in cell during detention”.  The article went on to describe the defendant as “the ‘lustful maniac’ who was overcome with sexual desire and … sodomized the victim in a paroxysm of bestial urges”.  It also reported that the victim was badly injured.

6.Counsel for the defendant was concerned about the effect of the article on the defendant’s trial and feared that the article would prejudice any eventual jury against the defendant.

7.After discussing the article with counsel the judge concluded :

“… The balance of justice demands putting the trial back for a bit, and I can see that being a real possibility, I’m afraid.  I haven’t made up my mind, I want to think about it, but it must be on the cards. … ”

8.The pre-trial review was adjourned to 25 April for, amongst other things, a search to be made of the local press for any other offending articles.  By 25 April the court had been informed of the further article published by the 3^rd respondent in the Oriental Daily, also on 17 April.  That article was headlined “Accused of raping two English female tourists.  Turning prison into ‘Imperial harem’.  A Pakistani was suspected of sodomizing and forcing inmates to do masturbation”.  The body of the article went on to say that the defendant “vented his lust by forcing the inmates in the same cell to do masturbation for him every night” and that “an inmate was sodomized by someone who was in a paroxysm of bestial lust”.

9.Both articles had set out the basic facts of the rape case in sufficient detail so as to identify it, and at least by inference, the defendant’s connection with it.   The judge subsequently described the articles as “grossly prejudicial” and “a grave contempt”.

10.Eventually the trial was adjourned to 6 September 2005 to allow sufficient time to go by and minimize any prejudicial effect of the articles.  It is quite plain from the transcript of proceedings that the reason for this adjournment was because of the publication of the offending articles in the Sun and Oriental Daily, although a further offending article apparently was published also by another Hong Kong magazine a few days before 4 May.  It so happened on 6 September the defendant pleaded guilty to the charge of rape.

11.The adjournment of the trial was not merely a question of delay.  The two victims of the rape were required to give evidence and had flights booked to Hong Kong so as to attend court on the original trial date of 4 May 2005.  Those arrangements had to be cancelled and the victims eventually came to Hong Kong for the adjourned trial date in September.  No doubt the additional waiting time caused the victims further and unnecessary stress and anxiety.

12.To their credit the respondents do not contest liability, they concede that the articles published in their respective newspapers amount to contempts of court.  They, jointly together with the applicant, have provided to the court written agreed facts which set out the history of the matter in some detail.

13.The test for contempt of court of this nature is whether the published articles were likely to interfere with the administration of justice.  That interference need not be deliberate or intended.  It is sufficient if at the time of publishing there was an intention to publish, and that there was a real risk of prejudice to the trial by doing so.  (See Attorney-General v. South China Morning Post Ltd and Another [1984] HKC 500, Secretary for Justice v. Oriental Press Group Ltd and Others [1998] 2 HKC 627 and Secretary for Justice v. Wong Yeung Ng [1999] 2 HKC 24.)

14.In my judgment the facts of the case, so far as each respondent is concerned, amount to contempt of court.  There is no defence in law available to the respondents.  There were no reasonable attempts taken by any respondent so as to prevent the contempt and fall within the provisions of section 4(1) of the Judicial Proceedings (Regulations of Reports) Ordinance, Cap. 287.

15.Each contempt amounts to a wrongful interference with the administration of justice by the publication of the articles so as to require the adjournment of the trial of the defendant.  I am in fact satisfied that the adjournment of the trial was necessary so as to avoid a real risk of prejudice to the defendant and that the Secretary for Justice has established beyond reasonable doubt that each respondent was in contempt of court.

16.As regards penalty, I am satisfied that the contempts of court were not deliberate or malicious and do not warrant sentences of imprisonment.  They were the result of negligence and insufficient provision being made for supervision within each newspaper’s internal organization.  I accept that each respondent was in fact unaware that the trial of the defendant was imminent and that the published articles would eventually require the adjournment of that trial.

17.Nevertheless I regard these as serious contempts.  High standards are required of newspapers reporting on criminal trials, or on defendants involved in criminal trials.  The same high standards must also apply to those such as senior editors who are responsible for monitoring the content of articles relating to such subject matter.

18.In the present case the respondents were plainly aware that the defendant was in custody awaiting trial on a charge of rape.  That was obvious from the contents of the articles themselves.  But no check was made by either newspaper as to when that trial would be held.  That was a rudimentary step which should have been taken.

19.Further, it should have been obvious to each of the respondents that the articles published by their respective newspapers made serious allegations of a criminal nature against the defendant which were separate and independent from the existing criminal charges.  In those circumstances, warning bells should have sounded loudly and clearly in a professional reporting environment, but apparently did not.

20.I do not regard the contempts as being distinguishable in terms of their seriousness.  Each is serious, though I agree not of the most serious sort.  They did however cause a delay in the course of justice of some four months which was wholly unnecessary.  That delay, as I have said, no doubt caused considerable additional anxiety to the two victims who were to be witnesses.

21.I take into account that each respondent accepted liability at an early stage of the present proceedings commenced by the Notice of Motion filed on the 30 March 2006.  On 28 June the respondents notified the Secretary for Justice and this court that liability was conceded by all respondents.  That to my mind is a significant mitigating factor.

22.It has been urged upon me that neither the 2^nd nor 4^th respondent, i.e. the two editors, should be penalized as the publishing of the articles was inadvertent rather than a deliberate attempt to interfere with the trial process.  As I say, I accept that the contempts in both cases stemmed from a lack of proper organizational supervision within the newpapers rather than from any maliciousness or calculated motion.  But that itself was a failing of some significance for which each editor bears, in my view, considerable responsibility so far as his own newspaper is concerned.  There should have been procedures put in place long ago to prevent contempts of this sort.  It seems to me that the failure to do so falls fairly within the area of responsibility of a chief editor as each of the 2^nd and 4^th respondents were.  

23.I add one other thing.  I regard neither the 1^st nor 3^rd respondent (i.e. the two publishing companies) as having a clear record in this regard.  The 1^st respondent was convicted of a similar contempt of court by Sakhrani J on 22 January 2002 in respect of articles published in the Sun on 21 and 22 March 2001 (see HCMP6152/2001).  The 2^nd respondent has never been convicted of contempt, but is a company which exists simply to hold the ownership of the Oriental Daily.  It is a company within what appears to be a matrix of companies forming the group which owns and operates the Oriental Daily.  The parent company, Oriental Press Group Ltd, was convicted of perhaps one of the most serious contempts of court in Hong Kong’s history relating to a series of vituperative articles directed at the Hong Kong judiciary in June 1998 (see Secretary for Justice v. Oriental Press Group Ltd and Others [1998] 2 HKC 627).  I do not think any coy adjustment of the corporate veil protects the 3^rd respondent so as to allow it to claim a clear record in this regard.  To do so would be to ignore the reality of the continuing identity of the newspaper itself and of its ownership.  I regard neither the 1^st nor 3^rd respondent as having no previous offence, I accept the 2^nd and 4^th respondents do have clear records.

24.I order as follows : each of the 1^st and 3^rd respondents are fined $200,000.  Each of the 2^nd and 4^th respondents are fined $50,000.  I am satisfied each respondent can afford this level of fine.  The respondents will pay the costs of these proceedings to the Secretary for Justice.  Costs are to be taxed if not agreed.  The fines imposed are to be paid within 14 days.

Mr Michael Blanchflower, SC, Counsel on fiat, for Secretary for Justice

Mr Cheng Huan, SC, leading Mr Paul Leung and Mr Bernard Chow, instructed by Messrs Iu, Lai & Li, for the Respondents