Her Majesty's Attorney General in and for The United Kingdom v. South China Morning Post, Ltd and Others
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IN THE COURT OF APPEAL 1987, No. 114 BETWEEN
__________________ Coram: Hon. Kempster & Hunter, JJ.A. & Jones, J Dates of Hearing : 26th - 28th August 1987 Date of Judgment : September 8th 1987 __________________ J U D G M E N T __________________ Kempster, J.A.: 1. On 1st September 1955 Mr. Peter Wright signed a declaration acknowledging that he was liable to prosecution if he communicated to any unauthorised person, or to any person to whom it was not his duty so to do in the interest of the State, information which he had obtained or to which he had had access owing to his office under Her Majesty. From that day until 31st January 1976 he was employed by the British Security Service. At the conclusion of such employment Mr. Wright signed a further declaration acknowledging that his liability to prosecution would continue save as regards information officially made public or in relation to which he had received the written sanction of the Security Service. He has remained under obligations of secrecy, confidence and trust in relation to information obtained in the course of his former employment ever since. 2. After retirement Mr. Wright publicly announced that he had submitted a memorandum to the Chairman of a Select Committee of the House of Commons calling for an inquiry into the penetration by foreign agents into the British Security Service. No inquiry having been held he determined to write his memoirs and therein to disclose to the world at large the matters exercising his mind. Knowing that the law of England would not permit such a breach of his enduring obligations he emigrated to Australia and arranged for the publication of confidential material by Heinemann Publishers Australia Pty Ltd. Whether or not he locally freed himself from legal constraint by moving into that jurisdiction has yet finally to be determined in proceedings initiated by the British Government in the Supreme Court of New South Wales during September 1985. However, perhaps in breach of undertakings given to that Court, Mr. Wright and his publishers have meanwhile granted the American rights in his memoirs to Viking Penguin Inc who published them in the United States of America on 14th July 1987 and subsequently in Canada in a hardback book called "Spycatcher". Having regard to the First Amendment to the American Constitution, to section 2(b) of the Canadian Charter of Rights and to the free passage of goods between the two countries there was no prospect of inhibiting publication within those jurisdictions. There have been further publications in Kenya and Bermuda but the attitude of the Attorney General in such regard has not finally been determined. An injunction has been granted at his instance in New Zealand. Copies of the book can be obtained in Hong Kong by those prepared to take a little trouble. 3. As regards this territory the English language newspapers at least have kept the public informed since 1984 of Mr. Wright's internationally publicised views and intention and of the litigation which has been running in Australia. More immediately, in the issue of the South China Morning Post for 22nd July 1987 local interest in "Spycatcher" was alleged. Coincidentally this was followed by a phone call to the second defendant, the Editor in Chief both of the South China Morning Post and of the South China Sunday Morning Post, from News Ltd, an Australian corporation associated, like Times Newspapers Ltd, the publishers of "The Sunday Times" in London, with the first defendants, South China Morning Post Ltd; all being ultimately owned or controlled by Mr. Rupert Murdoch. The second defendant was asked if he was interested in serial rights .to "Spycatcher" and, having said that he was, was told that News Ltd could arrange for the grant of such rights in respect of some 12,000 words at a price of A$5,000; roughly equivalent to HK$27,500. The second defendant asked News Ltd to make the necessary arrangements. This they did; both furnishing him with a copy of the book as published by Viking Penguin Inc and procuring for the first defendants the appropriate licence from Heinemann Publishers Australia Pty Ltd. I feel entitled to assume that the price has been paid and that a substantial proportion of it has found its way into Mr. Wright's pocket. 4. On 26th July 1987 there appeared in the "Spectrum" section of the issue of the South China Sunday Morning Post a 4,000 word excerpt from the chapters of "Spycatcher" dealing with allegations of a plot against Sir Harold Wilson during his time as Prime Minister of the United Kingdom, phone tapping in the French Embassy in London and Mr. Wright's reminiscences on the personalities of Anthony Blunt and others whose treachery has brought the British Security Service into disrepute. It was substantially the same, including some photographs and captions, as an article which had been published in the "Sunday Times" a fortnight before, following the acquisition of British rights from Heinemann Publishers Australia Pty Ltd, and had prompted proceedings by the Attorney General for contempt of court. While distancing themselves as much as they can from Mr. Wright the defendants are anxious to publish the remaining 8,000 words of his memoirs, to which they are entitled by contract, at the first opportunity. 5. On August 1st, prior to the issue of a writ, the Attorney General in and for the United Kingdom successfully applied to Bewley J., ex parte, for an injunction against those responsible for printing and publishing the "Spectrum" material or causing it to be printed and published in order to restrain the further publication of excerpts from "Spycatcher" until trial or further order. The institution of such proceedings was clearly within the province of Her Majesty's Attorney General in and for the United Kingdom rather than for his counterpart in Hong Kong. In matters of security no significant distinction falls to be made between the interests of the United Kingdom and those of its dependant territories. 6. When filed on 3rd August the writ was seen to claim an injunction to restrain the publication of information known or believed to derive from Mr. Wright and to have been obtained by him while a member of the British Security Service, a declaration that the defendants are trustees of such information in their possession, and an account of profits. A Statement of Claim amplifying the Attorney General's case followed on or about 18th August. Barnett J., having heard the matter inter partes discharged the injunction on 24th August. The Attorney General appeals. 7. It is conceded that arguable causes of action lie against the defendants for breach of the duty imposed upon them by reason of their acquisition of information known to have been obtained by Mr. Wright in circumstances of confidence and of their consequential responsibilities as trustees of that information; this albeit they may well share the opinion expressed by Mr. Harold Evans(1), the former Editor of “The Sunday Times” who committed that newspaper to the mission of testing the parameters of “press freedom”, that the action for breach of confidence “is one of the unique restrictions on the freedom of the press in Britain.” 8. Since it is also common ground that by reason of the North American publications, if not of the detailed and circumstantial judgment of Powell J. in New South Wales, nothing alleged by Mr. Wright to date remains secret no more than two questions of law are really in issue between the parties. The first is whether or not the Attorney General still has any interest which he can invite the Courts of Hong Kong to protect by way of injunction and the second, if he has such an interest, whether it is arguable that he may obtain a permanent injunction after trial. 9. The House of Lords was faced with very much the same questions of fact and law last July on appeals by the London "Observer" and “Guardian” newspapers, relying on the publication of “Spycatcher” in the United States of America, against the refusal of the Court of Appeal fully to discharge interlocutory injunctions which had been granted against them at the suit of the Attorney General during 1986 in virtually identical terms to that so recently granted in Hong Kong by Bewley J. In dismissing the appeals and imposing more stringent injunctions the majority in a deeply divided House, Lord Brandon, Lord Templeman and Lord Ackner, held that despite the American publication the Attorney General had demonstrated a continuing interest worthy of protection and an arguable case for permanent injunctions after trial(2). Such findings, including those as to the adequacy of damages or an account of profits as a means of protecting the Attorney General's interest, effectively bind this Court before which the same as well as additional arguments are advanced unless some material consideration does not obtain or has markedly less force in the context of Hong Kong. 10. The continuing interest principally relied upon by the majority in the House of Lords was the need to discourage Mr. Wright and other avaricious or disgruntled members or retired members of the Security Service from publishing further purported revelations in breach of confidence. The finding as to continuing interest is not affected by local considerations and we are bound by it. For good measure Barnett J., after some hesitation, found to the same effect and there is no appeal against such finding. If I understand his judgment correctly he did not go on to follow, in the circumstances of Hong Kong, the finding by the majority of the House of Lords that there was an arguable case for a permanent injunction. 11. Since Mr. Wright has been precluded from exploiting the United Kingdom market, at least until after the trial of the proceedings between the Attorney General and the "Observer" and "Guardian" newspapers, he must look elsewhere for monetary gain or the satisfaction of having his story widely retailed or both as his motivation may be. Whether or not the potential readership in Hong Kong be added to that in North America may not, of itself, much affect the figures in his bank account or his amour-propre. If, however, Mr. Wright, mediately or immediately, is restrained from publishing his work not only in the United Kingdom, which Lord Ackner described as his "best market" but in a number of other countries as well the effect of the interlocutory injunctions imposed by the House of Lords will be enhanced proportionately. Since the restoration of the injunction granted by Bewley J. can thus significantly protect the Attorney General's continuing interest I would hold that an arguable case for a permanent injunction after trial is made out. I would not, however, expect a permanent injunction to be granted after trial in Hong Kong if such relief had been refused after trial in England. 12. Lord Templeman and Lord Ackner also took into account the possibility of the identification of serving and retired members of the Security Service and of their harassment in a situation where they could not loyally protect themselves. This is a relevant consideration in Hong Kong but a minor one. 13. It does not follow from findings that there is a serious question to be tried and that the Attorney-General has a real prospect of securing a permanent injunction after trial that the case for an interlocutory injunction in made out. The grant or refusal of such relief raises questions of public policy which cannot await trial and must immediately be addressed; one of the most important being the gravity of interference, albeit temporary, with the free flow of information and comment to the people of Hong Kong whether they be Chinese or English readers. 14. Mentioned in Article XIII of Annex I to the Joint Declaration by the Governments of the United Kingdom and of the People's Republic of China on the future of Hong Kong dated 26th September 1984 is the International Covenant on Civil and Political Rights to which, with various reservations, the United Kingdom has adhered on its own behalf and that of its dependent territories including Hong Kong. The People's Republic of China states that the provisions of the Covenant as applied to Hong Kong shall remain in force after 1997 but Mr. Lester, who appeared for the defendants, has told us it has not itself adhered to the Covenant to-date. Be that as it may Article 19 reads:
15. These words may add little to the protection afforded to the individual by the Common Law. To quote from Lord Oliver's dissenting judgment in the House of Lords:
But insofar as Article 19 does add anything an analogy may be drawn with the effect on the law of England of Article 10 of the European Convention on Human Rights even though the International Covenant has no equivalent to the European Court at Strasbourg the contemplated ruling of which caused Lord Bridge such concern. 16. That article reads:-
Lord Templeman, with whom Lord Ackner agreed, accepted that it governed the proper approach of the English Courts to the problems with which the House was faced and that they should seek to determine whether the interference with freedom of expression constituted by the terms of the injunctions under consideration was necessary in a democratic society in the interests of national security, for protecting the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary. I am prepared to accept an approach based on the International Covenant mutatis mutandis and to dispense with a consideration of the attitude adopted by the Court in Lion Laboratories v Evans(4) and by Millett J and the Court of Appeal in Attorney Genera v "Guardian" and "Observer" newspapers(5). The outcome of this appeal will not turn on the burden of proof nor can a balancing of factors be avoided in any event. On that footing our approach should be to determine whether the interference with freedom of expression constituted by the terms of the injunction granted by Bewley J., provision therefor being made by law, is necessary for respect of the rights or reputations of others or for the protection of national security in the sense of the Attorney General's continuing interest in deterring breaches of trust and confidence by members or former members of the British Security Service. By "national security" I mean the security of the United Kingdom and its dependent territories. 17. As Lord Fraser and Lord Diplock respectively said in Council of Civil Service Unions v Minister for the Civil Service(6).
These sentiments seem particularly apt in circumstances where
Well, there has been a paucity of evidence and much public discussion in relation to "Spycatcher" and as to whether or not an injunction should have been or should be granted in this jurisdiction or that. Like Courts elsewhere those in Hong Kong can only do their best in the circumstances. 18. The importance which as a matter of public interest the Common Law attaches to the free flow of information generally needs no emphasis. The reason is illustrated by considering, as an example, the investigation by the media of crime, the safety of drugs, suspected abuses of power, maladministration, the conduct of the police, bribery, fraud and business malpractice. While obviously conducted with a view to increased circulation or audience ratings and advertising revenue such activity redounds to the public advantage by uncovering information which would not voluntarily be made available and thereby gives rise, in many instances, to remedial action by government, institutions, corporations and individuals. It can further and cogently be argued that the Hong Kong like the British public has a particular and legitimate interest even in stale allegations about the activities of the British Security Service when made by a former member. 19. Although Lord Scarman, having retired as an active Lord of Appeal in Ordinary, has criticised in the pages of “The Times” the decision of the majority of the House of Lords in the "Observer" and "Guardian" appeals he had earlier made plain in his dissenting judgment in Home Office v Harman(8), where the majority decision was subsequently criticised at Strasbourg, that
20. In assessing whether or not an injunction restraining the serialisation or publication of the whole or part of "Spycatcher" in Hong Kong is necessary for the protection of national security the following factors appear to me to be material:
21. Having regard to (6) and (7) above, I am satisfied that the failure to restore now the interlocutory injunction granted by Bewley J. is capable of causing much greater injustice to the Attorney General. representing a vital public interest, than its restoration, which will preserve the status quo, is capable of causing to the defendants whose attitude reflects another vital public interest. Further, balancing all the factors outlined I am also satisfied that the restoration of the injunction is necessary for the protection of national security. 22. It was submitted by Mr. Lester, somewhat faintly to us, that by reimposing the injunction this Court would be weakening the protections which the Common Law affords to individual freedom at the instance of “The State”. This suggestion I emphatically reject. I am sure it is appreciated by all fair-minded persons that the Courts do not react to pressure from any quarter be it from government, the media. corporations or individuals however powerful. The situation after 1997, canvassed below and which I regard as irrelevant, will continue to depend upon the integrity of the judiciary at the time. 23. Of the nine points relied upon by Barnett J. as the basis for the exercise of his discretion to discharge the injunction only two accord with those which I believe to be important, namely that the Attorney General has an arguable case and that there remains a legitimate interest to be protected in Hong Kong. He fell into error in failing to discern the difference between breaches of confidence and breaches of fiduciary duty and what permanent and irrevocable damage will be done to the Attorney General by prior publication. He also fell into error in holding that the defendants are not parties to an immediate breach of duty, that the reasons relied upon by the House of Lords have little application here and that Hong Kong has a particular sensitivity in relation to the workings of Her Majesty’s government. In the premises we are entitled to substitute our own discretion which I would exercise to restore the injunction imposed by Bewley J. on 1st August 1987 and to allow the appeal accordingly.
Hunter, J.A.: 24. I entirely agree with the reasoning and conclusion of my Lord Kempster J.A. I add some words of my own only because we are differing from the trial judge in a case which has achieved some notoriety. 25. This Court enjoys the immense advantage of deciding this case in the light of their Lordships' speeches in the Guardian and Observer Newspapers case. The majority opinions show two things. First, that there is no substance in the extravagant language which any claim by Government to restrain the press is calculated to produce. This case involves no attack upon or threat to liberty of speech. It is a case where the Court is faced not with one but two public interests which directly conflict; namely the public interest in protecting the confidentiality of the security service and the public interest in preserving freedom of speech. The Court's sole function now is to hold the ring between these two interests as best it can pending trial. Secondly, the speeches contain an exposition of the relevant law and practice which both binds us and points to our proper conclusion. 26. All their Lordships were agreed upon to propositions namely:
What divided their Lordship was whether proposition (1) remained true on the facts, consequent upon the publication of the book in the United States. If, as the majority held, the propositions remained true it could simply be demonstrated:-
27. Lord Brandon summed up the position in this way:-
28. Such being the consequence of the continued validity of propositions (1) and (2), the decisive question before their Lordships was futility. The minority concluded that an injunction would be futile - an empty gesture. The majority concluded that the Plaintiff's case was damaged not destroyed. Secrecy as such had gone, and the book was available in the United Kingdom to those with sufficient interest and funds to acquire it. But there was a marked difference in degree between knowledge in the public arising from such availability, and that which would follow from the mass circulation intended by the newspapers. This was likely to cause additional damage to the morale and discipline of the security service and provide additional encouragement to others to follow the lamentable example of Mr. Wright. Lord Templeman and Lord Ackner(15) concluded that these factors gave rise to a clear public interest which needed protection. Lord Brandon concluded that the court at trial might perform a useful function in minimizing further damage(16). 29. In these circumstances, the first question to my mind is whether propositions (1) and (2) apply to this claim. It was conceded in argument both before the trial judge and this Court that the Plaintiff has an arguable case in breach of confidence and in breach of fiduciary duty. But the concession did not extend to an arguable case for a permanent or any injunction. On the contrary, Mr. Anthony Lester, Q.C. for the Defendants contended that in respect of both causes of action damages were an adequate remedy or alternatively that the Plaintiff had failed to show that damages were not an adequate remedy. I cannot start to accept this submission. First, in relation to breach of confidence it is not open to us. We are bound by the unanimous view to the contrary of all the English judges. Secondly, I agree with Lord Ackner's comment that the truth of the Vice-Chancellor's observation "is so crystal clear, that the proposition requires no further exposition”(17). The same applies equally to the cause of action in breach of fiduciary duty. Thirdly, I can see no basis in fact or law for the submission that if the trial judge regarded the Defendants' conduct as sufficiently heinous he could award punitive damages. Such a view of the Defendants' conduct should, in my view, lead to the grant of an injunction. Mr. Lester’s stand was essentially contradictory. If the Plaintiff has an arguable case in either cause of action, it must be an arguable case for the law's only effective remedy namely an injunction. 30. In my judgment, therefore, the Plaintiff in relation to his cause of action for breach of confidence is in the same position in this case as he was before their Lordships' House. He has an arguable claim for the only effective remedy the law recognises namely an injunction. In addition he is in the same position in respect of his claim for breach of fiduciary duty. Unfortunately, the trial judge was persuaded to the contrary conclusion. He rejected Mr. Ribeiro's submission to the above effect and reached the conclusion that damages were an adequate remedy to the Plaintiff but not to the Defendants. With respect, this view is insupportable. It follows that he did not start correctly to assess the true impact of the grant and the refusal of an injunction, and the exercise of his discretion is fatally flawed. 31. It follows in my judgment that the real issue before the judge and this Court is futility. The judge did not deal with this question, but had he done so his propositions (3) and (5) suggest to my mind that his conclusion would not have been favourable to the Defendants. 32. The Defendants chose not to argue that the judge was in error in this respect and should have found futility. 33. In relation to the cause of action in breach of confidence, I can see no material distinction between the position before their Lordship's House and that before this Court. To my mind the factual differences between the position in the United Kingdom and the position in Hong Kong are differences of degree and of scale, not differences of kind. I am minded to think that there is the same divergence here between the levels of public knowledge before and after serialization. From the Defendants' own evidence the quantum of press coverage of this dispute and of the legal proceedings in Australia and U.K. was comparatively modest. It was stimulated by the South China Morning Post itself on 22nd July, the very day on which it initiated its purchase of publishing rights. This bid and the desire to serialize are not consistent with the existence then of public knowledge as a whole. The British Security Service is Hong Kong's Security Service. No distinction can be drawn between its work in either location. There is no comparison between the position here and that in countries such as Australia which have their own security service. Security service personnel, no doubt, work here and visit here. The effect on their morale and discipline of one of their former members being free to embarrass the service and their colleagues past and present for his own profit in this area of their work cannot be wholly dismissed. In my judgment, Lord Brandon's analysis applies equal to this case. 34. In relation to breach of fiduciary duty, the Plaintiff's position is different and stronger. Lord Oliver called the distinction between The Guardian and The Observer on the one hand and The Sunday Times on the other a point of “critical importance”(18). The former were in no way directly linked with Mr. Wright and obtained all their published information at one remove. On my reading of his speech, I am far from sure that Lord Oliver would have decided what he called a “uniquely difficult" case the same way had The Sunday Times been the defendant(19). 35. A claim in breach of confidence turns upon the content of the confidence and whether there is anything left to protect. A claim in breach of fiduciary duty turns on conscience, and whether it is unconscionable for the Defendant to be allowed to use information obtained from a particular source with the knowledge that such information has been revealed to him in breach of duty. The fact that such information may be gleaned from other public sources may be no answer to the recipient. The fact that he is free to use those sources does not leave him free to exploit his tainted source, Schering Chemicals Limited v. Falkman Limited(20). 36. The evidence does not start to reveal the true relationship between Mr. Wright, his publishers in the United States and in Australia, and News Limited, the company “through” which the Defendants have purchased their rights. But it is sufficiently plain that there is now a direct link between Mr. Wright and the Defendants. The Defendants are aiding and abetting Wright's breach of duty. They do not deny knowledge of such breach, but rather seek to excuse it by reference to the judgment of the Vice-Chancellor in England (which they cannot, I believe, have read). It is true that they were not party to the original publication in the United States. But here in Hong Kong they are the prime movers seeking to bring about maximum publicity to what every English judge has called Wright's "flagrant" breach of duty. Far from being hopeless, the Plaintiff's case for a permanent injunction on this basis seems to me very arguable indeed. No possible ground exists for deciding this point against the Plaintiff without a trial which, in substance, is what the trial judge has done. 37. I therefore agree that, this appeal should be allowed.
Jones, J.: 38. This is an appeal by the Attorney General of the United Kingdom against an order made by Barnett, J. on the 24th August 1987 which discharged the injunction granted by Bewley, J. on the 1st August 1987 that restrained the defendants from publishing extracts from the book "Spycatcher" by Mr. Peter Wright a former member of the British Security Service . 39. On the 22nd July the South China Morning Post announced its intention to publish extracts from "Spycatcher" and the first instalment was published in the South China Sunday Morning Post on the 26th July. This led to the application by the Attorney General for an injunction. The injunction granted by Bewley, J. is in the following terms:
40. By this appeal the Attorney General seeks to restore that injunction. The terms of the injunction except for one matter which is not relevant are substantially the same as the injunction that was approved by the House of Lords in the majority decision of the 30th July. 41. At the time when Millett, J. continued the original injunction in England on the 11th July 1986 against the Observer and the Guardian the element of secrecy had not been destroyed. There can be no doubt that the injunction was wholly justified in the circumstances prevailing at that time. However, since the publication of the book in the United States, Canada and other parts of the world, the contents have become public knowledge. The book is available in the United Kingdom to those people who wish to obtain a copy. Limited copies are also available in Hong Kong. 42. We were informed that the 1st defendant acquired the serialisation rights to "Spycatcher" through an associate company in Australia, News Limited, which is also associated with Times Newspapers’ Limited. There was no evidence that the defendants have had any direct relationship with Mr. Wright. 43. The evidence for the Attorney General is based upon an affidavit made on the 9th September 1985 by Sir Robert Armstrong, the Secretary to the Cabinet for the purpose of the Australian proceedings. In particular reliance is placed upon paragraph 10 which reads:-
Having regard to subsequent events only paragraph 10(c) remains relevant today. 44. The issue for this appeal is to determine whether the trial judge correctly exercised his discretion when he considered the balance of convenience between two competing interests on the principles enunciated in American Cyanamid Co. v. Ethicon Ltd.(21) The court in its appellate jurisdiction is not entitled to substitute its own discretion unless the judge erred in law see Hadmor Productions Ltd. v. Hamilton(22). 45. In the forefront of Mr. Ribeiro's argument on behalf of the Attorney General is his submission that Mr. Wright owes a duty of confidence and a fiduciary duty to his employer which extends to the defendants as a third party who stand in his shoes. The defendants by virtue of Mr. Wright's breach of fiduciary duty are therefore not entitled to derive any benefit from his misdeeds because it is unconscionable to do so. 46. Mr. Lester who appeared for the defendants concedes that the Attorney General has an arguable case in confidence and breach of fiduciary duty. However, he submitted that as secrecy has now gone, the Attorney General has shown that there is no practical interest left to be protected by an injunction. The argument advanced for the Attorney General is that there are still ancillary interests to be preserved which will be destroyed if publication is allowed. If an injunction is refused the Attorney General may suffer irreparable damage and will, in effect, be deprived of his right to a permanent injunction if the matter is summarily dealt with at this stage. Mr. Ribeiro relies upon Schering Chemicals Ltd. v. Falkman Ltd.(20) when an injunction was granted where information was freely available from other sources. However, the television company in that case collaborated directly with the person who was under a breach of fiduciary duty and confidence in making a film. In the instant case there is no evidence that the defendants have aided and abetted Mr. Wright or have collaborated with him in any way. Any relationship with him is indirect. 47. Before the House of Lords it was agreed that damages would not be an adequate remedy to either side but Mr. Lester canvassed this issue on the basis that damages or exemplary damages could be an adequate remedy. However, in my judgment, I do not see that damages could provide an adequate remedy for the object of the proceedings is to obtain a permanent injunction in order to act as a deterrent to other persons who were employed by the Security Services who may wish to emulate Mr. Wright. It is a case that cannot be compromised. Either the Attorney General is entitled to an interlocutory injunction pending trial or the defendants have the right to publish now. 48. A great deal of the argument presented before the trial judge and before us was concerned with the right of free speech and freedom of expression. Reference was made to Article 10 of the Convention for the Protection of the Human Rights and Fundamental Freedoms to which the British Government adheres and which received consideration by the House of Lords. That Convention does not apply to Hong Kong, but Article 19 of the International Covenant on Civil and Political Rights which is in similar terms to Article 10 of the European Convention was invoked to support the defendants' case in the public interest for freedom of speech. Article 19 provides:-
49. Freedom of expression was taken into account by the trial judge when he was considering the balance of convenience, but Mr. Ribeiro criticised his approach on the grounds that having found it to be a matter of importance he had incorrectly cast a burden upon the Attorney General to show a sufficient interest that had to be protected before the right to freedom of speech could be overturned. In support of his submission he referred to Lion Laboratories Ltd v. Evans(23) as authority for the proposition that upon an interlocutory application the Court will favour restraint to protect a duty of confidence unless the defendant has a serious defence of public interest which may succeed at the trial. He also contended that a distinction should be drawn between news that is in the public interest and news which is merely of interest to the public. It has been suggested that the contents of “Spycatcner” do not qualify as news which is of public interest but merely provides "a good read" as it was put by Barnett, J.. There is obviously a difference between news that relates to the protection of national security and that which protects the reputation or rights of others but the information contained in "Spycatcher" is undoubtedly of considerable interest to the public in Hong Kong. I accept that freedom of expression in Hong Kong is not absolute, and that the press is not above the law, but it is a factor, albeit an important one, to be taken into consideration when weighing the balance of convenience. Nevertheless, I agree that this case does not involve an attack on freedom of speech. Barnett, J., in dealing with the balance of convenience said at page 16 of his judgment "On the basis of deterrents only vestigial interests are left to protect in Hong Kong." 50. When the original injunction was granted in England secrecy was the paramount consideration, but since publication in the United States the situation has altered dramatically. Although the book is available in many countries the Attorney General says that the defendants should not be permitted to publish because it is unconscionable to do so and by refusing an injunction will deprive him of his right to argue that a permanent injunction should be granted at the trial. 51. There may be a distinction between the case of the Observer and the Guardian who merely wish to comment upon the book and the Sunday Times and the defendants who wish to serialise extracts. The stamp of authenticity of Mr. Wright as a former member of the Security Service reflects this distinction. However, it seems to me more apparent than real. Although it has been suggested that a dealy in publication until the trial will not affect the defendants because the events in the book happened a long time ago in the 1950s, 1960s with the latest taking place in about 1974, there is no doubt that it is "hot news" now. It will probably not be "hot news" by the time the trial takes place in six to twelve months' time. That, of course, is not a reason for publication if restraint in the public interest can be justified. Can restraint be justified when the book is available although only on a limited scale when no secrets are left to be protected and the only live issue that remains is to deter others. It is highly improbable that any former member of the Security Service would be deterred by the threat of an injunction being granted in Hong Kong to prohibit publication when he can, like Mr. Wright, publish in the United States and other parts of the world. 52. While it is accepted that the Attorney General has an arguable point of law with regard to the matters of confidence and breach of fiduciary duty, it does not appear to be a strong case. The arguments that found favour with the House of Lords do not, on the facts apply to Hong Kong. The judge, as I have said, had to carry out a balancing exercise. Although I am satisfied that he came to the right conclusion the sole reason that I find cogent and compelling to support his decision is upon the ground of futility which he did not find it necessary to consider. Therefore, despite the concession made by the defendants that there is an arguable case the restraint upon publication in my judgment amounts to a futile exercise when the book is in the public domain. I appreciate the concern of the Attorney General in safeguarding the interests of the Security Service, but in the circumstances of this case and having regard to the facts applicable here the only realistic decision is to allow publication to take place. There is no longer any interest to protect in order to justify the granting of an injunction while there is no evidence to connect the defendants directly with Mr. Wright. On the question of futility alone I would, therefore, dismiss the appeal.
Mr. Robert Ribeiro & Mr. Aarif Barma (Herbert Smith & Co.) for Plaintiff Mr. Anthony Lester Q.C. & Mr. Daniel Fung (Deacons) for all 4 defendants (1) “Good Times Bad Times” published by Weidenfeld & Nicholson, p.10 (2) Attorney-General v. Guardian Newspapers Ltd and The Observer Ltd and Ors “The Times” April 14th 1987 and transcript (3) transcript pp.43 and 44 (4) 1984 QB 526 (5) 11th and 25th July 1986 (6) 1985 AC 374 at pp.402 and 413 (7) 1916 2 AC 77 at p.107 (8) 1983 AC 280 at p.311 (9) Attorney General v “Guardian” and “Observer” newspapers transcript pp. 38, 39, 41 and 42 (10) At p.42 (11) Attorney General v Guardian Newspapers Ltd and The Observer Ltd & Ors “Times” 23rd and 25th July 1987 (12) pp. 198 and 199 of the transcript (13) at pp.211-212 of the transcript (14) Transcript p.12 (15) Transcript pp.18-20 and 26 (16) Transcript pp.10-11 (17) Transcript p.23 (18) Transcript p.38 (19) Transcript pp.38-43 (20) [1982] 1 Q.B. 1 (21) 1975 AC 396 (22) 1983 1 AC 191 (23) [1984] 3 W.L.R. 539 |