Asia Television Ltd v. Communications Authority (Successor of the Broadcasting Authority)

CACV 258/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 258 OF 2012

(ON APPEAL FROM HCAL 77/2012)

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BETWEEN

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JUDGMENT

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Hon Cheung CJHC:

1.This is an application by the applicant that the appeal proper fixed for 17 and 18 April 2013 be heard in camera; or alternatively, that such part of the appeal proper regarding various factual, evidential or substantive matters of litigation be heard in camera.

The facts

2.As is well known, the applicant holds one of the two free television licences and makes free television broadcasts to all persons in Hong Kong.  The respondent is an independent statutory body, established under the Communications Authority Ordinance (Cap 616), to regulate broadcasting and telecommunications industries in Hong Kong in accordance with the Broadcasting Ordinance (Cap 562) and the Communications Authority Ordinance.

3.In July 2011, the Broadcasting Authority, the predecessor of the respondent, began an investigation into the affairs of the applicant.  The main purpose of the investigation is to ascertain whether Mr Wong Ching, a major investor in the applicant, had been in de facto control of the applicant.  As a result of the investigation, the respondent sent to the applicant a draft report in March 2012 and later a revised draft report in June 2012 of the investigation.  In both draft reports, the respondent effectively concluded that Mr Wong had been in de facto control of the applicant.  The respondent also reached various provisional adverse findings against the executive director of the applicant (Mr James Shing) and the applicant itself.  Based on these provisional findings, the draft reports set out various proposed sanctions and penalties to be made against the applicant.

4.Before the revised draft report was prepared, the applicant had asked for but the respondent had refused the disclosure to the applicant of certain information it had obtained in the course of the investigation.  Moreover, after the revised draft report was made, the respondent required the applicant to make written submissions by 28 June 2012 in response to the revised draft report and to make oral representations (if any) on 30 June 2012.  It also indicated that it would make and publish its final decision after the expiry of these deadlines.

The proceedings below

5.The applicant disagreed and commenced the judicial review proceedings below on 26 June 2012 to challenge the respondent’s refusal to disclose the information sought and its subsequent decision relating to making representations in response to the revised draft report.  It asked that these decisions be quashed.  It also asked that there be an interim stay of the decisions and the investigation itself.  It further asked for an interim injunction to restrain the respondent from making or publishing any final decision or report on the investigation (including the revised draft report) pending the determination of the judicial review proceedings.  The application for this last item of (interim) relief was resolved by the respondent giving an undertaking to the same effect on 4 July 2012.

6.On the same day, Au J ordered that the hearing of the substantive application for judicial review be held in chambers (not open to the public) and that the court file be prohibited from inspection by the public.  The order came only after the contents of the Form 86, including the provisional findings and proposed sanctions contained in the revised draft report, had already been reported in the media.

7.The substantive application for judicial review came before Au J for hearing on 30 and 31 August 2012.  The hearing was conducted in chambers, not open to the public.  On 19 October 2012, the judge handed down his judgment, also in chambers, not open to the public.  He found that there was a breach of procedural fairness in the investigation.  He therefore quashed both decisions of the respondent under challenge.  He emphasised that his determination had nothing to do with the merits of the provisional findings and proposed sanctions contained in the revised draft report.

The present application

8.Dissatisfied with the judge’s decision, the respondent appeals.  As mentioned, the appeal proper will be heard in April 2013.  The applicant applies for the substantive appeal to be heard in camera.  The application is opposed by the respondent.

9.Mr Benjamin Yu SC (Ms Sara Tong with him) submitted on behalf of the applicant that the hearing of the appeal in open court would jeopardize the fairness of the ongoing investigating process. He submitted that if the preliminary and prejudicial findings and the selectively quoted evidence in the revised draft report were to be repeated at the hearing of the appeal proper in open court, they would almost certainly be widely published to the detriment of the applicant.  Initially, Mr Yu focused his arguments on the possible effect of any intense public discussion or even public outcry that the appeal (if heard in public) might generate on the members of the respondent involved in the investigation in terms of their impartiality and fairness, and the appearance thereof, in conducting the same.  Mr Yu argued that these members are not professional judges and like a jury, they may or may be perceived to be liable to be influenced by public opinion.  

10.As the arguments progressed, Mr Yu further contended that such public discussion or outcry would have an effect on the interviewees or potential interviewees who were already involved or might later become involved in the ongoing investigation in terms of their willingness to provide (further) information or assistance to either side or in terms of the contents of their statements or evidence.  Mr Yu referred the court to a letter dated 16 November 2012 written by the respondent’s solicitors to the Registrar of Civil Appeals that the respondent had since pursuing the investigation in 2011 been deliberately keeping confidential the details of the investigation because of the statutory obligations of confidentiality to which the respondent is subject and “the need for procedural fairness”.  Counsel read that as an admission, coming from the respondent, that the applicant’s fear of a compromise of procedural fairness if the appeal were to be heard in open court was not mere speculation, but a matter accepted by the respondent itself.

11.Mr Yu contended that any such compromise would affect his client’s right to a fair hearing (before the respondent) guaranteed under article 10 of the Hong Kong Bill of Rights.  By the same reasoning, counsel argued that his client’s right of access to court, guaranteed under article 35 of the Basic Law, would be compromised because the applicant’s seeking redress from the court would be unduly burdened with a risk to its obtaining a fair hearing before the respondent.

12.Mr Yu also argued that the ends of justice would be liable to be defeated if the appeal proper were to be heard in open court.  Counsel submitted that the main purpose of the proceedings below was to prevent the respondent from publishing the very serious and prejudicial findings as regards the internal management of the applicant in the revised draft report.  Indeed, the applicant sought an interim injunction to restrain publication pending the determination of the judicial review application, and obtained an undertaking from the respondent in lieu of the injunction sought.  For the same reasons, the judge directed that the proceedings be heard in chambers, not open to the public. There was no appeal from such direction.  If the appeal were to be heard in public, one of the purposes of initiating the judicial review proceedings and of the undertaking – the preservation of procedural fairness of the investigation – would be entirely defeated.  That would constitute a denial of justice.

13.In his written submissions, Mr Yu also contended that the effect of publication of the contents of the revised draft report and the preliminary findings would be potentially very serious for the applicant.  It would result in a loss of public confidence in the applicant’s management and irreparable damage to its reputation such as to significantly affect its business, regardless of the outcome of the appeal.  Such damage, it was contended, could potentially result in the applicant no longer being able to continue its business.  In particular, it was said that publicity would likely seriously affect the reputation of the applicant and cause unnecessary public concern over its management.  It was also said that any reputation damage and loss of confidence in Mr James Shing would likely affect his management role in the applicant and lead to serious operational difficulties.  Publicity would likely lead to a loss of morale within the internal personnel of the applicant.  Further, publicity might have a significant adverse impact on the financial circumstances of the applicant.  Finally, the potential losses to the applicant that might result from the respondent’s serious findings being made public would be difficult to quantify, and on a worse case scenario, prevent the applicant from continuing its business and jeopardize its survival.

14.It was contended that given the highly controversial matters contained in the revised draft report, any public hearing would be tantamount to “a public censure” of the applicant (and its senior management) when the provisional findings had been tainted with procedural irregularities.  Mr Yu argued that this is not a case where any damage to the applicant’s reputation and public confidence could be vindicated or restored by a judgment in its favour in the appeal, as the subject matter of the appeal concerns solely the procedural fairness of the investigation.  There would be no opportunity for the applicant in the appeal to make representations on the serious allegations against it with the benefit of full disclosure from the respondent.  It was emphasised that therefore this is not a case where the applicant sought purely to avoid the embarrassment that might be caused by publicity.  Rather, conducting the hearing of the appeal in open court would likely result in serious injustice to the applicant.

The respondent’s arguments

15.Mr Anderson Chow SC (Mr John Hui with him) disagreed with all these arguments.  Counsel emphasised that justice must be done openly, save where it is “necessary” to do otherwise. He reminded the court that there was no suggestion that this court cannot administer justice publicly if the appeal is to be heard in open court.  The concern about the fairness of the investigation cannot justify the hearing of the appeal in camera.  Counsel disputed strongly the suggestion that the fairness of the investigation would be compromised by a public hearing of the appeal.  He criticised the suggestion as purely speculative.  He drew examples from jury trials and other judicial review proceedings to illustrate his point that a fear or speculation of compromising the fairness of proceedings has never been a ground which justifies the holding of proceedings in camera.

16.Counsel also stressed that in any event, the contents of the Form 86 had already been revealed to the public and there had already been public discussions on the matter.  Contrary to the applicant’s suggestion, those discussions did not lead to any of the feared consequences suggested by the applicant at all.  In fact, counsel mentioned, there are pending before the court other (separate) proceedings involving the applicant and its top management, and those proceedings are all held in public.

The general principles

17.The court has been referred, rather comprehensively, to many authorities, both overseas and local, on the question of open justice.  The general principles of law involved are not seriously disputed.  The application of those principles of course turns very much on the facts of individual cases.  It is unnecessary to refer to these cases in detail here.

18.However, it is useful to remind ourselves of the basic principles.

19.First and foremost, “justice should not only be done, but should manifestly and undoubtedly be seen to be done”: R v Sussex Justices, Ex parte McCarthy [1924] 1 KB 256, 259, per Lord Hewart CJ.  Open administration of justice is a fundamental principle of common law: Scott v Scott [1913] AC 417; R v Chief Registrar of Friendly Societies, Ex parte New Cross Building Society [1984] 1 QB 227; Re BU [2012] 4 HKLRD 417.  It is of great importance, from the perspective of administration of justice, for a number of reasons.  The public nature of proceedings deters inappropriate behaviour on the part of the court.  It also maintains the public’s confidence in the administration of justice.  It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties’ or witnesses’ identity concealed.  It makes uninformed and inaccurate comment about the proceedings less likely.  R v Legal Aid Board, Ex parte Kaim Todner [1999] QB 966, 977E/F-G.

20.Second, from the litigants’ perspective, open justice also gives effect to their rights to a public hearing guaranteed in article 10 of the Hong Kong Bill of Rights.

21.Third, from the public’s point of view, open justice, which carries with it the freedom to attend proceedings and to report on them, gives substance to the media’s right to freedom of expression including the freedom to seek and impart knowledge, guaranteed under article 16(2) of the Hong Kong Bill of Rights.  Likewise, it enables the public to enjoy their right to seek and be imparted with knowledge guaranteed under the same article.

22.Fourth, all this means that any restriction on open administration of justice necessarily represents a compromise of these important interests, rights and freedoms, and must be justified by considering and balancing all pertinent interests, rights and freedoms, including in particular those mentioned above.

23.Fifth, the case law has firmly established that the following considerations or matters do not by themselves justify any restriction on open administration of justice:

(1) Publicity of litigation leading to embarrassment and inconvenience: Re Wong Tung‑kin [1989] 1 HKLR 93; Ex parte New Cross Building Society, at p 235F.

(2) Publicity leading to economic damage, even very severe economic damage: R v Dover Justices, Ex parte Dover District Council and Wells (1992) 156 JP 433.

(3) Professional embarrassment and possible damage to profession reputation: Ex parte Kaim Todner, at pp 975H‑976C.

(4) The parties’ agreement that the proceedings be held in private: Ex parte Kaim Todner, at p 977 C/D‑D/E.

(5) The mere fact that the subject proceedings etc which gave rise to a judicial review application were held in private: Re The Takeovers & Mergers Panel [1996] 3 HKC 379; Sit Ka Yin Priscilla v Equal Opportunities Commission [1998] 1 HKC 278.

24.Viewed in terms of the balancing exercise described above, it may be said that the right to privacy underlying some of these considerations or matters is in itself insufficient to justify a departure from the general rule of open justice (see also paragraph 31 below).

25.This is hardly surprising.  After all, unwanted publicity, embarrassment and so forth are some of the normal incidents of litigation.  They are some of the inevitable consequences of open justice.  As a general rule, no one involved in litigation, particularly the initiating party of litigation, can complain.  In many but certainly not all cases, if parties desire secrecy, they may, where appropriate, go for arbitration, mediation or some other form of alternative dispute resolution.

26.Sixth, however, open justice is, from the perspective of proper administration of justice, just a means, albeit an important one, to an end, that is, the doing of justice between the parties concerned: Scott v Scott, at p 437; Ex parte New Cross Building Society, at p 235E.  It therefore follows that where open administration of justice in a case would frustrate that ultimate aim of doing justice, it is a most important if not decisive consideration to take into account when balancing the relevant interests, rights and freedoms involved, to decide whether open justice should be restricted, and if so, by what means and to what extent.

27.The case law has very often expressed this in terms of a requirement of “necessity”, that is, where justice would be frustrated if open administration of justice in a particular case is not restricted, then, to the extent necessary to prevent that from happening, there may be restriction on doing justice openly.

28.This requirement of “necessity” is founded on the common law, and has also found expression in article 10 of the Hong Kong Bill of Rights and, in the case of the Court of Final Appeal, section 47(3) of the Hong Kong Court of Final Appeal Ordinance (Cap 484).  Article 10 of the Hong Kong Bill of Rights relevantly provides that the press and public may be excluded from a hearing “to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”.

29.Obvious examples here include proceedings involving wards of court or mentally incapacitated persons.  Another example is proceedings for the protection of secret process.  Scott v Scott, at p 437.

30.All this must be understood in terms of the balancing exercise described above given that different and sometimes competing interests, rights and freedoms are or may be at stake.  This is all the more so when quite often, one is concerned with a risk that justice cannot be done (if it is to be administered openly), rather than a certainty that this will be so.  In that type of situation, the court’s task is to balance that risk (and other relevant interests etc) against other competing considerations and come up with an answer that best serves the situation at hand.

31.Seventh, apart from the interests of justice, there are other similarly important considerations that may justify restriction on open justice.  Thus article 10 of the Hong Kong Bill of Rights also mentions “reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of all parties so requires” as exceptions to the requirement of a public hearing. See, for instance, In re Guardian News and Media Ltd [2010] 2 AC 697 (right to respect for private and family life).

32.Eighth, where justice can be administered openly in the case itself, but to do so would or might jeopardise some right or interest of one or both of the parties outside of the case, whether open justice should be restricted and if so, the manner and extent of restriction, must be considered by conducting the balancing exercise already described.  One common example is cases concerning refugees or torture claimants where it is said that the life, limb or liberty of the refugee or torture claimant or their family is or may be put at risk in the absence of some form of restriction on open justice: R (on the application of Kambadzi) v Secretary of State for the Home Department [2011] 4 All ER 975; Re BU.

33.The present case falls within this category of cases.  As mentioned, it was not Mr Yu’s case that justice cannot be done between the parties in the appeal itself if it were to be heard in open court.  Rather, counsel’s principal argument was that open administration of justice in this appeal would jeopardise the applicant’s right to a fair hearing in the ongoing investigation guaranteed under article 10 of the Hong Kong Bill of Rights.  The argument can only be resolved by conducting the balancing exercise described above.

34.Ninth, there are other miscellaneous but by no means insignificant considerations that, if relevant, should be taken into account in conducting the balancing exercise. For instance, the nature of the proceedings is relevant: Ex parte Kaim Todner, at p 978C‑D/E. In particular, proceedings by way of judicial review relate to decisions made in the public field, and as a general rule, they must be held in public, as the public has a legitimate interest to be informed about them, unless justice would be denied: Re The Takeovers & Mergers Panel, at p 381I; Sit Ka Yin Priscilla v Equal Opportunities Commission, at p 281D.  This is an additional consideration to the general consideration about the media’s and the public’s right to know based on article 16(2) of the Hong Kong Bill of Rights discussed in paragraph 21 above.

35.Moreover, it is not unreasonable to regard the person who initiates the proceedings as having accepted the normal incidence of the public nature of proceedings: Ex parte Kaim Todner, at p 978D/E‑G.

36.Tenth, where restriction on open justice is justified, it may take many forms, depending on how all pertinent interests, rights and freedoms should best be balanced. For instance, in the present case, the applicant asks for a blanket order for the hearing to be held in camera.  Alternatively, it asks for a partial censor of the contents of the submissions to be ventilated in open court.  Sometimes, a court may impose reporting restrictions on proceedings held in public.  At other times, the court may simply restrict the identification of the parties involved in the proceedings: In re Guardian News and Media Ltd [2010] 2 AC 697; Re BU.

The present case

37.In the present case, one must of course look at the entire circumstances in conducting the balancing exercise.  I accept that if unrestricted, the disclosure of the provisional findings and suggested sanctions in the appeal proper would be substantial.  I proceed on that basis in conducting the balancing exercise.  I find the following considerations of particular importance.

38.It is important first to note that administering justice in the present appeal does not in itself require the hearing of the appeal to be held otherwise than in public.  Mr Yu’s emphasis was on something outside of this appeal.  He feared that the fairness of the ongoing investigation would be compromised by the possible publicity.

39.As mentioned, as a general principle, this sort of concern is a legitimate one and depending on the facts, may possibly justify some form of departure from open justice in an appropriate case.  But each case must be considered on its own facts.  In the present case, I bear in mind various factors.

40.Whilst the proceedings do not deal with the substantive merits of the provisional findings, they do go into how those findings have been made in terms of procedural fairness.  The judgment of Au J has made it clear that the making of those provisional findings has been tainted by procedural irregularities.  Any member of the public learning about the provisional findings from the appeal proper (assuming that it is to be held in public) would also learn that a court of law has already decided that the making of those findings has been so tainted.  That, in fact, provides a possible distinction between the situation faced by this court in the appeal proper and that faced by Au J when he heard the application for judicial review.

41.In any event, one is entitled to proceed on the assumption that the members of the respondent involved in the ongoing investigation are people of some sophistication.  Certainly, they are not professional judges.  On the other hand, one should not proceed on the assumption that they are easily influenced by any public discussion or even a public outcry.

42.As for the interviewees and informants (potential or actual) etc, I accept that there is a genuine possibility of their being influenced, to some extent, by any public discussion or outcry.  That is certainly a matter that should be taken into account.  But that is not the only consideration.

43.In this regard, one must also bear in mind that the contents of the Form 86 have already been in the public domain for a substantial period of time.  Moreover, there are other proceedings involving the applicant and its management on foot which are again in the public domain.

44.In this connection, I have not forgotten that the Broadcasting Ordinance does place some emphasis on maintaining confidentiality in the investigating process: sections 26 and 27 of the Ordinance.  On the other hand, section 27(2)(b) specifically says that the restriction on the respondent’s disclosure of confidential information obtained in an investigation does not apply to disclosure of information in connection with civil proceedings to which the respondent is a party.  The Ordinance contains no requirement that such proceedings be held otherwise than in open court.  I do not, therefore, think that much can be gained by referring to the Ordinance itself.  If anything, it would tend to suggest that when it comes to litigation, the legislature recognises that the maintenance of confidentiality in the investigating process must give way to the consideration of open administration of justice.

45.Furthermore, if, for the sake of argument, fairness of the ongoing investigation would be compromised by the unwanted publicity to be generated by hearing the appeal in public, there would be remedy in law available to the applicant.

46.As regards the alternative stand put forward by the applicant, that is, that there be partial restriction on the disclosure of materials during the hearing of the appeal which would otherwise be held in open court, there could be difficulties regarding implementation, in terms of determining what is and what is not too sensitive or prejudicial to be disclosed.  Likewise, any restriction on reporting (as yet another alternative) might entail its own problems, such as difficulties in policing compliance.

47.As for Mr Yu’s point that hearing the appeal in public would frustrate or defeat the underlying purposes of the undertaking and of the judge’s direction, that, in my view, is reading too much into the undertaking and direction.  As Mr Yu recognised, this court is not bound by the undertaking.  In any event, the undertaking, like a court order, is liable to be reviewed in the light of the general principles regarding open justice that I have described above.  It cannot be allowed to impinge on the principle of open justice, save where otherwise justified.  The undertaking (and the direction) simply beg the very question that this court has to decide.

48.As for any possible frustration of the purposes of the proceedings, it should be remembered that the proceedings are directed at the decision not to disclose information and the decision relating to making representations.  The interim relief sought must be considered in the light of these decisions and the permanent relief sought against them.  The hearing of the appeal in open court will not by itself defeat these challenges against the two decisions.

49.As for the other matters referred to in the written submissions of the applicant, whilst they are relevant and should be borne in mind when conducting the balancing exercise, the authorities have established that they do not by themselves justify any departure from the principle of open justice.

50.I do not find Ex parte New Cross Building Society, relied on by the applicant, particularly helpful.  There, the English Court of Appeal was satisfied that an appeal involving a building society’s challenge against some administrative orders to revoke its licence should be held in camera.  No analogy can be drawn with the present case because in that case, the court recognised that building societies, like banks, are always subject to the risks of abnormal levels of withdrawal due to a loss of confidence on the part of their customers.  Moreover, building societies are much more vulnerable than banks for by the very nature of their business they are compelled to borrow short and lend long (p 236B/C).  Nothing of that sort would happen to the applicant in the present case, particularly in the light of the fact that some disclosure of the present proceedings as well as disclosure in other proceedings have already been made and we have not seen any catastrophic effects on the applicant or its operations thus far.

51.In L v Equal Opportunities Commission [2002] 3 HKC 571, this court (differently constituted) made an anonymity order in a discrimination case concerning mental disability.  The court came to the view that the administration of justice would be best served by making such an order.  In that case, the plaintiff claimed that he suffered from mental disability and that he had been stigmatised on account of his disability.  The court therefore considered that it would be highly undesirable that his application for redress in the court would become material for future discrimination in respect of his employment and social contact for himself and his family because of the publicity concerning his identity and medical conditions.  In my view, whilst there is some superficial resemblance between that case and the present one in that in each case the court’s concern lies not so much in its ability to administer justice in the case itself, but in the possible effect of a public hearing on a party in future, the underlying considerations are very different.  One can easily see, in the context of discrimination, why the court should be particularly sensitive to not causing any unnecessary harm to the complainant of discrimination in future by reason of the proceedings, in relation to which the complainant and his family might have difficulty in seeking redress from the court or elsewhere.  But not so with the applicant in the present case in relation to any future unfairness in the investigating process.

52.I do not think X v Securities and Futures Commission [2012] 4 HKLRD 296 and Shun Tak Holdings Ltd v Commissioner of Police [1994] 2 HKC 363, both relied on by the applicant, take the present discussion any further.  These cases show, as Mr Chow submitted, no more than that the court has power, in appropriate circumstances, to order judicial review proceedings to be heard, at first instance, in camera.  They are of little assistance as there was, in each of these cases, no discussion of the general principles.  In any event, they are of no direct assistance to the question of whether this court, sitting on appeal, should hold the hearing in public or otherwise.

53.I also bear in mind that the issues raised in these proceedings concern matters of public interest.  As Mr Chow submitted in his written submissions, the applicant operates in an industry of great importance to the public and the society of Hong Kong.  It holds one of the two free television licences.  It broadcasts freely to everyone in Hong Kong.  Free television is a major source of entertainment, information and education to the general public and exerts a significant influence in society.  The applicant is therefore in a regulated industry.  Its operation and conduct are under public scrutiny, and are monitored and regulated by a special statutory authority to ensure that it operates properly and strictly in accordance with the law and applicable regulations.  The investigation relates to the proper conduct of the applicant and its management, a matter which is of great public interest and importance.  Looking at it from the perspective of the respondent, as the special statutory authority charged with the responsibility to regulate and monitor the broadcasting industry, the issues in the present case relate to the manner in which the respondent exercises its powers and performs its function.  Members of the public are entitled to know whether the respondent has done its job properly, in particular they are entitled to know whether the respondent has treated the licensee fairly in its conduct of the investigation.  How the respondent conducts investigation of the present type can also have wide ranging applications and implications in relation to future investigations relating to the broadcasting and communications industries.  It could also have implications for comparable investigations by other public bodies charged with similar powers of investigation by law.  With these submissions of Mr Chow, I agree.

54.All this must be borne in mind when considering the present application.  After all, the applicant has chosen to do business in a regulated industry and, as Mr Chow submitted, it must be within the applicant’s reasonable expectation that its dealings with the public regulator will be subject to public scrutiny.

Disposition

55.For all these reasons, I have come to the conclusion that the matters urged upon the court are not sufficient to justify any departure from the principle of open administration of justice in the upcoming appeal.  I would therefore dismiss the application with costs to the respondent (on a nisi basis), together with a certificate for two counsel.

Hon Lam JA:

56.I agree with the judgment of the Chief Judge.  I would add some observations of my own given the general importance of open justice.  As explained by the Chief Judge, open justice is an important element in our administration of justice, as such one important feature in the rule of law in this society.  Article 10 of the Hong Kong Bill of Rights reinforces the common law position. It expressly provides:

“The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice …”

57.Other than those exceptions, Article 10 provides that everyone is entitled to a public hearing in the determination of his rights and obligations in a suit of law.

58.In the present case, Mr Yu relied on the “prejudice to the interests of justice” limb to seek an order for the appeal to be heard in camera.  The Chief Judge has cogently and clearly explained in his judgment why we do not agree there was sufficient justification in that regard.

59.In the balancing exercise, the court must proceed on the basis that Hong Kong is an open and free society. It is the professional duty of our media and journalists to report court proceedings in a responsible and unbiased manner.  Transparency of information is the best safeguard against inaccurate quotations or distortions of what happens in court proceedings.  As we have many journalists and news agencies in Hong Kong, with the ready access to court proceedings and court judgments, any inaccurate reporting (whether by a news media or otherwise) can be easily and readily checked and corrected.  And there is no shortage of public channels in Hong Kong for such errors to be aired in the public arena.

60.Also, as pointed out by my Lord, there are remedies in law available to the Applicant if the fairness of the ongoing investigation is really compromised by misguided publicity.

61.Perhaps understandably, Mr Yu did not rely on any right of privacy or, in the words of Article 10, “the interest of the private lives of the parties”.  To start with, there is no suggestion in this case that the private lives of the parties would be affected by a public hearing of the appeal. For the sake of argument, even assuming (without deciding) one can entertain a broader concept of right of privacy with regard to the internal administration of the Applicant, it is quite clear that such a right cannot prevail. I will briefly explain why.

62.The approach that the court should adopt in balancing a clash between the right of privacy, the right of public hearing and the right of freedom of information can be found in the judgment of Lord Rodger in In re Guardian News and Media Ltd [2010] 2 AC 697, in particular at paragraphs 48 to 51.  As His Lordship observed at paragraph 51, the weight to be attached to the rival interests will depend on the facts of the particular case. Where the publication concerns a matter of general interest to society (as opposed to something which simply intended to satisfy the curiosity of a particular readership regarding the details of somebody’s else private life), there is little room for restrictions to be imposed on a public hearing.

63.In light of what the Chief Judge said at paragraph 53 above, it cannot be disputed that what occurs in the appeal is a matter of general public interest. As such, even if there is any right to privacy, such right cannot lead to an order for the appeal to be heard in camera.

64.Further, as observed by the Chief Judge at paragraphs 23 and 24 above, the inconvenience and embarrassment or even potential damages to professional reputation and financial losses arising from publicity relating to a public hearing can rarely be sufficient to outweigh the public interest in open justice.  In this connection, it is enlightening to consider how the balance was struck by the Supreme Court in In re Guardian News and Media Ltd, supra, at paragraphs 58 to 75. At paragraph 60, the following observation was made:

“… It really amounts to saying that the press must be prevented from printing what is true as a matter of fact, for fear that some of those reading the reports may misinterpret them and act inappropriately. Doubtless, some may indeed draw the unjustified inference … Politicians and the press have frequently debated [on public issues], the debates presupposing that members of the public … are more than capable of drawing the distinction between mere suspicion and sufficient evidence to prove guilt. Any other assumption would make public discussion of these and similar serious matter impossible. …”

65.Further, at paragraph 68:

“By lifting the anonymity order … the court allows members of the public to receive relevant information … In this way the true position is revealed and the public can make an informed judgment. …”

66.In the present case, the contents of the Form 86 had been published and the provisional findings had been revealed.  The public will know that Au J had held that there was procedural unfairness in the process. It is also known that there is going to be an appeal. In the absence of any prejudice to the interest of justice, I do not think there is any other justification for ordering the appeal to be heard in camera.

Hon Cheung CJHC:

67.The court makes the order indicated in paragraph 55 above.

Mr Benjamin Yu SC and Ms Sara Tong, instructed by Baker & McKenzie, for the applicant

Mr Anderson Chow SC and Mr John Hui, instructed by Eversheds, for the respondent