WONG YEUNG NG v. THE SECRETARY FOR JUSTICE

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 161
(Civil)

----------------------

J U D G M E N T

----------------------

Mortimer, V.-P.:

1. On 23 June 1998 the appellant, Wong Yeung Ng, was convicted of two contempts of court and sentenced to a total of 4 months imprisonment by a Divisional Court (Chan CJHC and Keith J). At the time of the contempts, the appellant was editor of the Oriental Daily News. The Oriental Press Group Ltd, a public listed company, is the de facto owner publisher and controller of the Oriental Daily News. The Oriental Press Group was also convicted and fined $5m but does not appeal.

2. The Amended Notice of Motion were that the appellant, the Oriental Press Group and others (who were acquitted) committed contempts of court:

"(a) by seeking to threaten, harass and/or intimidate Godfrey JA during 13, 14 and 15 January 1998 (by having him pursued by their employees and/or agents and/or others) in order to influence his future judicial decisions, all by reason of a judgment which he had previously delivered, thereby wrongfully interfering with the administration of justice, and

(b) in printing, publishing or instigation such printing or publishing the articles, considered in isolation and considered cumulatively, as set forth in the copy Amended statement ('the Amended Statement') served herewith used on the application for leave to issue this Notice of Motion, in the issues of the Oriental Daily News on 11 December 1997, 12 December 1997, 13 December 1997, 15 December 1997, 12 January 1998 and 13 January 1998 upon the grounds set forth in the Amended Statement."

The contempt alleged in (a) became known below on "the pursuit of Godfrey JA' and (b) as "scandalising the court".

3. In each case it was said that the conduct of the defendants had interfered with the due administration of justice as a continuing process. It was not suggested that any attempt was made to influence the outcome of particular proceedings either pending or in progress.

4. Further, to avoid repetition, interference with the administration of justice as a continuing process may take many forms which include diminishing the authority of the court, bringing the count into disrepute and reducing public confidence in the system.

The appellant and the Oriental Daily News

5. The Oriental Daily News is the most popular daily newspaper in Hong Kong with 2.3 million readers and 53% of the vibrant newspaper market. It is obviously influential.

6. The appellant was the editor of the Oriental Daily News at the time of the events complained of and he was fully responsible for them.

The background

7. The second contempt was the first in time. Re-acting to adverse decisions of the court and the Obscene Articles Tribunal, prolonged attacks were made upon the judiciary and the court. The Divisional Court described the articles as follows:

"Apart from being abusive, offensive and scurrilous, the remarks contained racial slurs. There can hardly be any justification or basis for such remarks in what members of the OAT and the judges did and there was nothing in the article purporting to explain why they should be given such descriptions. These remarks were neither rational nor reasonable. Secondly, the article impugned the integrity of the judges and members of the OAT. Thirdly, what was said in the last two paragraphs of the article amounted to a threat to members of the OAT and the judges. The phrase 'to wipe you all out', coupled with the warning in the last sentence at the end of the article, particularly when they were repeated in English, strongly smack of a threat to do something harmful or unpleasant to members of the OAT and the judges."

Mr Sydney Kentridge QC, who appears for the appellant, has no quarrel with that description. In his submissions he did not seek to minimise the offensiveness of the articles which he described as "shocking, reprehensible and greatly to be deprecated".

8. By the first alleged contempt, the Oriental Press Group and the appellant sought to punish Godfrey JA for a judgment he had delivered by having him beset and pursued round-the-clock by numbers of their reporters and photographers.

The Faye Wong case

9. These contempts followed two cases before the Hong Kong courts. In the first, known as the Faye Wong case, a photograph of the singer was taken by an Oriental Daily News reporter at Beijing Airport without her consent. She was pregnant. The photograph was published on the front cover of the Sunday Weekly published by Oriental Sunday Publisher Ltd, a subsidiary of the Oriental Press Group. Apple Daily, a competitor, published the front page including the photograph. The Oriental Press Group and the publisher brought an action for breach of copyright. Rogers J (as he then was) awarded them $8,001 damages but on the basis of a previous offer he ordered them to pay Apple Daily's costs.

10. The Oriental Press Group and the publisher appealed. On 19 September 1997 the Court of Appeal dismissed the appeal on damages and later varied the order for costs by making no order for costs below, but ordering the Oriental Press Group and the publisher to pay two-thirds of the costs of the appeal.

11. Godfrey JA delivered the judgment of the court, towards the end of which are some obiter remarks upon the privacy of public figures:

"Public sentiment has turned, or seems to be turning , against those who are guilty of invasion of the privacy of public figures by taking their photographs for large sums which reflect the cupidity of the publishers and the prurience of their readers. The time may come when, if the legislature does not step in first, the court may have to intervene in this field (as Lord Bingham of Cornhill, LCJ, has recently suggested in England); for example, by holding that the protection of copyright will not be extended to photographs of public figures taken on private occasions without their consent."

12. On 8 January 1998 the same court refused an application by the Oriental Press Group and the publisher for leave to appeal to the Court of Final Appeal. The case had progressed no further at the time of the contempts.

The obscene articles case

13. The second case involved the Obscene Articles Tribunal (OAT). In June 1996 the Oriental Daily News published several photographs of women in the nude. These photographs were classified as indecent by the OAT. The same photographs were published in another local Chinese newspaper and were similarly classified. The other newspaper successfully appealed but the case was remitted to the OAT who again classified the photographs as indecent.

14. The publisher of the Oriental Daily News also appealed to the High Court. This was dismissed. On 28 October 1997 a further appeal to a court differently constituted to that in the Faye Wong case dismissed the appeal. The court accepted the publisher's submission that the OAT was obliged to give reasons but held that those given were sufficient. On 10 December 1997 the Court of Appeal refused the publisher's leave to appeal to the Court of Final Appeal. That is as far as the second case had progressed before the contempts.

The earlier articles

15. There were earlier articles before those complained of on the same subject matter. The Divisional Court thought "they set the tone for what was to come". The first of these on 22 September 1997, a few days after the Court of Appeal had dismissed the Oriental Press Group's appeal in the copyright case. Apart from arguing that Godfrey JA's judgment was in error, it wrongly suggested that the judge equated the photographer of Faye Wong with paparazzi who pursued Princess Diana. There were extravagant personal attacks on the judge who was described variously as "ignorant, unreasonable, ridiculous, arbitrary, prejudicial and arrogant". It was said that the Judiciary were unfair to the Oriental Press Group and that since 1995 the British-Hong Kong Government had intensified its persecution of the Oriental Press Group through the police and the Obscene Articles Tribunal.

16. On 30 October 1997, two days after the newspaper's appeal had been dismissed in the obscene articles case, the Oriental Daily News published a special feature - "Special Page on the Denouncement of the Tribunal". Earlier cases were described and hostility, persecution and discrimination by the Tribunal against the Oriental Press Group was alleged.

17. The next day, 31 October 1997, several pages of photographs were published with short articles. Included were photographs previously classified as indecent in respect of which appeals to the court had failed. As the Divisional Court said,

"The re-publication of these photographs was nothing less than a defiance of the court's decision and a challenge to the rule of law".

18. The articles from 1-7 November focused on the Obscene Articles Tribunal. The names of the 157 members were published and they were generally reviled. For example, they were described as "scumbags".

19. On 10 November 1997, with increasing enthusiasm an article described the members of the Tribunal variously "dogs and bitches', "tortoises having retreated into their shells", "having to run for cover like a rat in the gutter", "scumbags", "public enemy of freedom of the press and a public calamity to the six million citizens" (of Hong Kong).

20. On 9 December 1997 the Court of Appeal set aside the costs order of Rogers J. On 10 December, another division refused leave to appeal to the Court of Final Appeal in the obscene articles case. These events "rekindled the fire ..." and led to a series of articles between 11 December 1997 and 15 December 1997, the subject of complaint.

The articles complained of

21. I gratefully accept the Divisional Court's unchallenged account of these articles, the impact of which can only be appreciated if set out in detail:

" (1) 11th December 1997. On that day, two articles were published in the Oriental Daily News. The first article was published in the Kung Fu Tea column with the heading: 'The Swinish White-skinned Judges and the Canine Yellow-skinned Tribunal'. The article criticised the OAT and the two judges, namely, Rogers J and Godfrey JA for attacking the Oriental Press Group. The OAT and its members were described as 'mangy yellow-skinned dogs' which wrongly accused the Group of publishing indecent and obscene articles. The two judges were described as 'British white ghosts' and 'white-skinned judges' or 'pigs' who deliberately ruled against the Oriental Press Group resulting in it having to incur huge legal costs to pursue its actions. Towards the end of the article, there were the following passages:

'Oriental does not care if you are yellow-skinned or white or a pig or a dog. In our self-defence, we are determined to wipe you all out!.

Here, Kung Fu Tea warns the pigs and dogs: don't you bother me again. Otherwise, when I counterattack in self-defence, you will regret it exceedingly - you will regret it! I repeat: you will regret it very much!'

The article was written in Chinese but the latter part of the last sentence quoted above was expressed in English which is commonly used as or understood to mean a spiteful warning.

Apart from being abusive, offensive and scurrilous, the remarks contained racial slurs. There can hardly be any justification or basis for such remarks in what members of the OAT and the judges did and there was nothing in the article purporting to explain why they should be given such descriptions. These remarks were neither rational nor reasonable. Secondly, the article impugned the integrity of the judges and members of the OAT. Thirdly, what was said in the last two paragraphs of the article amounted to a threat to members of the OAT and the judges. The phrase 'to wipe you all out', coupled with the warning in the last sentence at the end of the article, particularly when they were repeated in English, strongly smack of a threat to do something harmful or unpleasant to members of the OAT and the judges. It must be borne in mind that the newspaper had in an earlier article published all the names of the OAT members. While judges are professional and experienced persons, members of the OAT are laymen. Even if judges may not treat such warnings seriously, the effect on lay members of the OAT who are performing a public function as part of the administration of justice could be quite intimidating.

Another article which was published on the same day was entitled 'Rogers' Despicableness and Godfrey's Derangement'. It was written by the newspaper's commentators. The article criticised the decisions of Rogers J and Godfrey JA in the copyright case. It alleged that Rogers J had deliberately ruled against the Oriental Press Group and was guilty of 'such a despicable act of abstract confirmation and concrete negation by way of double dealings (which) has always been characteristic of British politicians.' It also contained the following passages:

' The crux of the problem is that there exists in the Hong Kong judicial sector a bloc of colonial remnants. They harbour animosity towards Oriental.

The Obscene Articles Tribunal is attached to the judiciary system. It is merely a tail-wagging dog outside the judiciary. All of the adjudicators kept by the Tribunal are stupid men and women who suffer from congenital mental retardation and have no common knowledge worth mentioning.

The Obscene Articles Tribunal is the main culprit in wronging Oriental. We have the name list of those ignorant adjudicators, and we will punish them on just grounds. The masters of those yellow-skinned canine adjudicators are none other than the likes of Rogers and Godfrey, the sheltering and condoning judicial scumbags and evil remnants of the British Hong Kong Government.

After 1st July, they have continued to occupy their stolen prominent places in the judicial sector. They, together with the vicious yellow-skinned adjudicators, have methodically attacked, harassed, and persecuted the publications under the Oriental News Group.

Here, we solemnly issue a warning: irrespective of race and status, effective action to restore full righteousness will be taken against those scumbags and demons who oppress freedom of the press.'

There was hardly any rational discussion in these articles. It can be seen that the abusive and scurrilous attacks were intensified and the racial slurs were repeated. The status of the OAT was depreciated and its members were insulted. The repute of the judges was smeared and their integrity cast into doubt. They were accused of having deliberately abused their position for illicit motives. Members of the OAT were also threatened that their names were in the hands of the newspaper and that they would be 'punished'.

(2) 12th December 1997. There was an article written in the Kung Fu Tea column on that day. It was entitled 'Readers voiced their support in slapping canine adjudicators'. This article claimed to have received many phone calls and letters of support from their readers. It referred to 'the Kung Fu Tea (having) stripped off (the judges') wigs and trampled them underfoot, and has also separated their flesh from their bones and boiled them in a soup'. The article also quoted a letter from a reader called Mr Leung. It quoted from the letter as follows:

'Capitalising on the pre-eminent status, the justices treat the law as a game. They can wreak whatever havoc they like, and they complacently dare anyone who has the courage to challenge them. Oriental Daily News has given them a sound tongue-lashing. ... Someone has had the courage to pull off the tiger's whiskers and remove the dragon's scales. ... Someone has torn off their designer briefs that conceal their deficiencies and expose the ringworm, scabies and syphilis that they have hidden under their solemn black gowns.'

The article also referred to the judges and members of the OAT as having 'become street rats who are being spat on and cursed everyday.'

It is quite clear that the article adopted the contents of the reader's letter by quoting them verbatim. If there were indeed such letters from readers, as the newspaper claimed, the campaign had apparently taken effect on the public confidence in the administration of justice. The language used was increasingly vulgar and the threat on the judges and members of the OAT was most vivid and alarming.

(3) 13th December 1997. The next article was published on 13th December 1997 which was shortly after the Court of Appeal refused leave to appeal to the Court of Final Appeal in relation to the OAT case. The article criticised the decision of the Court of Appeal in refusing leave. It also alleged that the judges of the Court of Appeal were prejudiced against the Oriental Daily Group and sided with the OAT to harm them.

(4) 15th December 1997. On that day, the newspaper published another article in the Kung Fu Tea column in response to a report in the South China Morning Post written 2 days previously saying that the Judiciary and the Department of Justice were considering prosecuting the Oriental Daily News for spreading racism in its articles. The article purported to justify the allegations which the newspaper had previously made. It accused Rogers J of having shown animosity to and deliberately attacked the Oriental Press Group and Godfrey JA of showing prejudice against them. However it went further and said:

'All of the charges were unwarranted and aimed at letting out anger at Oriental's refusal to obey British Hong Kong Government and its insisting independence in the operation of its newspaper.

The Tribunal became an implement used by the British Hong Kong Government to attack political dissidents. It persecuted Oriental unceasingly. Following his assumption of office, Chris Patten attempted to rope Oriental in and turn it into his political tool, but Oriental rejected him. He nursed hatred in his heart and directed various Government departments to harass and provoke Oriental non-stop!

After 1st July, Hong Kong is PRC territory, but centipedes remained supple after death. Having left the corpse of the colonial government, the ferocious demons in the form of the Tribunal and the justices have resettled in the body of the SAR Government. As before, they treat Oriental viciously. The verdicts of the Faye Wong case and that concerning the three photographs were passed after the transfer of sovereignty on 1st July, which, in turn, indicates that even though Hong Kong has become PRC territory, the demons are still careering frantically and are very active. Under the SAR Government and Chief Executive Tung Chee-hwa, the demons carry on the British Hong Kong authorities' unfinished business and continued to let out the anger on Oriental.

Last week, the likes of Rogers and Godfrey were soundly and righteously denounced by Kung Fu Tea. Oriental treats all evil influences equal. We will absolutely not administer lighter blows on white-skinned pigs while hating Chinese yellow-skinned dogs more. In our counterattack of self-defence, we strike heavy blows and do not care if they are officials or not!

After the handover of sovereignty on 1st July and under the SAR Government and Tung Chee-hwa administration, those white skinned pigs and yellow-skinned dogs who are evil remnants of the former government have not ceased their attack of Oriental.'

The allegation of animosity and bias was again repeated. The abusive, offensive and scurrilous attacks with their racial slurs persisted. The OAT and the judges were accused of having continued the persecution of the Oriental Press Group which was begun by the former Governor. They were alleged to have been the instruments of political persecution of the British Hong Kong Government and perpetrated such persecution by their decisions and judgments. They had a political motive to serve while they were discharging their judicial duty."

22. After the Court of Appeal refused leave to appeal to the Court of Final Appeal in the Faye Wong case, on 8 January 1998 an article appeared in the Oriental Daily News under a heading containing the words "...the Judiciary Contravenes Society's Laws and Principles; Oriental Is Prepared to Sacrifice Everything in the Final Battle". The article contained the following passages:

"For years, the Oriental Press Group was subjected to the methodical political persecution inflicted by the Hong Kong judiciary system that was manipulated by the former colonial Government. Such persecution had a long history. The so-called Obscene Articles Tribunal, which was under the Judiciary, harassed Oriental repeatedly.

Oriental has spared no efforts in destroying the public authority of the so-called Obscene Articles Tribunal. Its image has been torn to shreds, and it is on the verge of disintegration and extinction. Each of the so-called adjudicators has become a public enemy like a street rat.

Although the Tribunal, which is under the Judiciary, has collapsed entirely, High Court and Court of Appeal judges like Rogers and Godfrey and certain yellow-skinned judges of Chinese descent have continued to exercise their political role of persecuting Oriental. Personalities at increasingly senior levels are involved, and the extent has broadened. What is especially adverse is that such a form of political persecution has not terminated with Hong Kong's reversion to Chinese rule upon 1st July 1997. Very much the opposite, the Hong Kong SAR Government under the People's Republic of China has adopted a condoning attitude and given the Judiciary system that has sheltered a large number of evil remnants of the former Government a free hand in persecuting Oriental endlessly. More blatantly than ever, they have passed sentence after sentence that is tinged with prejudice and indifferent to public righteousness.

The Tribunal and the Justices followed in the footsteps of the political influences that were persecuting Oriental. The Judiciary of the Hong Kong SAR is a member of the political bloc that persecutes Oriental. The judicial measures it has employed after 1st July 1997 to continue to attack Oriental are part of the entire operation.

It was at that time that the so-called Obscene Articles Tribunal started to harass Oriental nonstop. After the transfer of Hong Kong's sovereignty to China on 1st July last year, the despicable role of persecuting Oriental has been formally assumed by judges of the High Court and the Court of Appeal. They have inherited the mantle of that role and taken up the unfinished anti-Oriental historical mission of Ford the racist and Patten the colonial governor.

Under the SAR administration, the biased attitude of the Hong Kong judicial system has remained unchanged and even intensified. They do not restrain themselves from treating Oriental unfairly, and they are getting increasingly extreme.

We are utterly disgusted with the incessant persecution dealt out by the HKSAR Judiciary, and our toleration is quite limited.

To staunchly defend the truth, we are determined to fight to the last bullet to wipe out the enemy and defend ourselves."

The effect of the articles

23. The meaning is clear. For the reasons set out, it was said the Oriental Press Group was the target of a biased Judiciary which was pursuing a conspiracy of political persecution started under the former colonial government. The Oriental Press Group had destroyed the authority of the Obscene Articles Tribunal and would now attack the Judiciary in every possible way in order to destroy its authority.

24. As the Divisional Court pointed out, the last article was a preclude to the harassment of Godfrey JA. On 13 January 1998, the next day, a number of articles on the subject repeated the earlier (erroneous) allegation that Godfrey JA had accused the taker of the Faye Wong photographer of being a paparazzo and announced that it would begin a pursuit of the judge. It described what later happened.

25. A team of reporters started to pursue the judge around the clock in his daily life. He was advised in the newspaper not "to take any false steps". Photographs and articles appeared the next day detailing the judge's movements to and from court, the cases in which he was involved and the times when he left the court building and returned at lunch time. Brief extracts of dialogue with the judge were reported together with descriptions of his composure.

26. Other media organisations were invited to send their reporters to join in. They came to report the event. The operation continued on 14 and 15 January 1998, accompanied by articles. But on 15 January 1998 an editorial repeated the conspiracy allegations but said that the operation had achieved its purpose of educating Godfrey JA upon the meaning of paparazzi and therefore the operation would cease at midnight. It did.

The motive

27. The avowed purpose of the harassment was to educate Godfrey JA but the nature of the articles written before, during and after the pursuit and the times of some compared with the progress of the cases demonstrated otherwise. Consequently the Divisional Court found that the real purpose of the "pursuit" was to take revenge for the court's decision against the Oriental Press Group and punish the judge for his decision. Put more bluntly it was "to teach the judge a lesson" for finding against the Oriental Press Group in the Faye Wong case.

28. I note in passing that the judicial process in neither the Faye Wong case nor the Obscene Articles Tribunal was then complete. Later, leave to appeal was granted by the Court of Final Appeal in each, and in due course, both appeals were allowed.

The Divisional Court's decision

29. The Divisional Court found the appellant guilty of both contempts. The second (but first in time) was for scandalising the court and thereby undermining public confidence in the administration of justice by publishing the articles between 11 December 1997 and 12 January 1998. It found that there was "a real risk" that the articles complained of would undermine confidence in the administration of justice in the minds of "at least some of the persons who were likely to have become aware of the particulars of the acts complained of".

30. The second was for interfering with the administration of justice as a continuing process. This concerns the pursuit of Godfrey JA and the light thrown upon it by the accompanying articles. Again, the court held that the pursuit of Godfrey JA constituted a real risk that the administration of justice as a continuing process would be interfered with in the sense that public confidence in its due administration would be undermined. Indeed, the court decided that there was "a very real likelihood" of this. It added that there was no risk that the administration of justice would be actually affected but some of the readership would think it a possibility and that if tolerated, the conduct would give rise to the misconception that such conduct by a losing party to litigation is permissible.

31. Arguments that these offences were incompatible with both the Bill of Rights Ordinance (Cap. 383) and the Basic Law were rejected.

Scandalising the court - the appellant's case

32. In Secretary of State for Defence v Guardian Newspaper Ltd [1985] AC 339, 347A Lord Diplock was of the opinion that contempt for publishing material which scandalises the court was "virtually obsolescent". But Mr Kentridge does not seek to argue for the appellant that such contempt no longer exists. He submits that the court below was wrong to hold on the facts of this case that this contempt had been committed under Hong Kong law. In short, he submits that the Divisional Court's finding that in order to establish this contempt it was necessary to show that the conduct involved a "real risk" of inference with the administration of justice was wrong. Further, that if the correct test had been applied the offence is not made out.

33. Given that the attacks were mala fide, scurrilous, abusive, shocking and reprehensible, he submits that the fundamental rights of freedom of expression and freedom of the press given under Article 16 of the Bill of Rights, Article 27 of the Basic Law and the International Covenant of Civil and Political Rights as incorporated in the Basic Law, protect the appellant unless it can be shown that the statements and conducts were "necessary" exceptions to the rule. This cannot be demonstrated unless on the evidence the risk to the administration of justice was real, substantial and immediate.

34. The substance of the submission is that the "real risk" test is insufficient to establish a "necessary" exemption to the fundamental rights provided by Article 19 of the ICCPR and Article 16 of the Bill of Rights Ordinance:

"(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

(3) The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary -

(a) ...

(b) for the protection ... of public order (order public), ..."

Mr Kentridge rightly concedes that "public order" includes the due administration of justice.

35. For these submissions he relies heavily upon the majority decision in R v Kopyto (1988) 47 DLR 213 in the Ontario Court of Appeal. This decided that scandalising the court as charged was unconstitutional and contrary to the Canadian Charter. The offence could survive as an exemption to the right of free expression only if there was a "clear, serious and immediate" danger to the administration of justice. As the Canadian Charter, the Hong Kong Bill of Rights and the Basic Law (incorporating the ICCPR) are in this respect in pari materia the correct test in Hong Kong law is that suggested in Kopyto. It follows, says Mr Kentridge, that in adopting the lower test of "real risk" the Divisional Court fell into serious error.

36. He supported his eloquent argument with persuasive, but not binding, authority. Many of his preliminary submissions on the fundamental rights are uncontroversial. The freedom of expression and of the press are given specific protection in the Bill of rights and the Basic Law. In our society their importance cannot be over-estimated. This, in my view, must be the starting point. I cannot better the way it is put by Hoffmann LJ (as he then was) in R v Central Television Plc (CA) [1994] Fam 192 at 202H to 203C:

"The motives which impel judges to assume a power to balance freedom of speech against other interests are almost always understandable and humane on the facts of the particular case before them. Newspapers are sometimes irresponsible and their motives in a market economy cannot be expected to be unalloyed by considerations of commercial advantage. Publication may cause needless pain, distress and damage to individuals or harm to other aspects of the public interest. But a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which "right-thinking people" regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute.

Furthermore, in order to enable us to meet our international obligations under the Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969), it is necessary that any exceptions should satisfy the tests laid down in article 10(2). They must be 'necessary in a democratic society' and fall within certain permissible categories, namely: ..."

He recognised that it was necessary for any exemptions under the international covenants to fall within defines categories including "the maintenance of the authority and impartiality of the judiciary" and added at 203D-E:

"It cannot be too strongly emphasised that outside the established exceptions, or any new ones which Parliament may enact in accordance with its obligations under the Convention, there is no question of balancing freedom of speech against other interests. It is a trump card which always wins."

The argument before us has concentrated upon whether having regard to the Basic Law, the ICCPR and the Bill of Rights it was open to the Divisional Court to hold that the contempts came within "necessary" exemptions. Mr Kentridge urged the application of the ordinary meaning of "necessary" rather than other formulations under international covenants. I agree. See Ming Pao Newspapers Ltd v AG [1996] AC 906.

37. In determining what are necessary exemptions in Hong Kong a number of points have been urged upon us. The first is that the test will differ accordingly to the needs of the jurisdiction concerned. This was recognised by Lord Morris in McLeod v St Aubyn [1899] AC 549, 561.

38. Then, it is rightly said that the courts and judges are not immune from criticism. They must rely upon merited good reputation for protection against bona fide censure even if it is fierce and misguided. Such criticism is not contempt. In Ambard v AG for Trinidad and Tobago [1936] AC 322 at 335 Lord Atkin put it thus:

"But whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice The path of criticism is a public way: the wrong headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men."

Salmon LJ (as he then was) expressed similar sentiments in R v Commissioner of Police ex parte Blackburn (No. 2) [1968]2 QB 150 at 155F:

"It follows that no criticism of a judgment, however vigorous, can amount to contempt of court, providing it keeps within the limits of reasonable courtesy and good faith. The criticism here complained of, however rumbustious, however wide of the mark, whether expressed in good taste or in bad taste, seems to me to be well within those limits."

Or, as Cory JA put it in Kopyto (above) "but the courts are not fragile flowers that will wither in the heat of controversy".

39. In this context Mr Kentridge invites us to consider the effect of justified, strong, bona fide criticism of the court and judges. What could be more effective, he says, in interfering with the administration of justice as a continuing process and diminishing the authority of the court? Therefore, he argues, the fact that the conduct may diminish the authority of the court is not enough by itself. Sound and warranted criticism is necessary for the improvement of any public institution including the courts.

40. Drawing together these reasons, Mr Kentridge urges the conclusion that the approach of the majority in Kopyto is correct under Hong Kong law. At most, the only protection consistent with the fundamental rights afforded by the law against scandalising the court, is if the conduct complained of is such as to involve a real, substantial and immediate danger to the administration of justice. This, Mr Kentridge equates with "clear and present danger" - the test applied in the United States courts which is only referable and relevant to cases pending or already in process.

R v Kopyto considered

41. Mr Kentridge's heavy reliance upon this case is founded upon the similarity of the Canadian Charter with the relevant provisions in Hong Kong, and the exhaustive consideration by that court of authorities in other commonwealth jurisdictions and in the United States. The five member Ontario Court of Appeal was unanimous that the momentary but excessive reaction of a disappointed lawyer was not made out as a contempt. In its consideration of the necessary ingredients of contempt by way of scandalising the court it is impressive. Mr Kentridge submits that it is also highly persuasive and ought to be followed.

42. It is necessary to examine the judgments in a little detail for the reason that on issues other than the result the court was split three ways. Cory and Goodman JJA were of the view that in order to accord with the fundamental freedoms in the Charter the contempt must be shown to involve a "real, substantial and immediate" (Cory) or "real, significant and present or immediate" (Goodman) danger to the administration of justice.

43. Houlden JA stood alone in deciding that no offence of scandalising the court, however framed, could be consistent with the Charter and therefore there could be no such contempt.

44. Brooke and Dubin JJA on the other hand considered the offence to be a necessary exemption provided that the statement complained of is calculated to bring the administration of justice in disrepute and it is shown that there is a "serious risk that the administration of justice would be interfered with - that risk could be expressed as serious, real or substantial".

45. The majority view that such a contempt could not be committed unless it interferes with the fair trial of present or pending proceedings was influenced in varying degrees by American jurisprudence and its test of "clear and present danger". Dubin JA (with whom Brooke JA agreed) was dismissive of this approach. He preferred the commonwealth authorities for the reasons he gives at 285:

"The result of the majority ruling is that in this jurisdiction there is, at present, no limit on what is permissible with respect to comments made which are intended to interfere seriously with the administration of justice and the rule of law unless the comment is made in the face of the court, or would interfere with the fair trial of pending proceedings. With respect, I see no basis for such a distinction."

He then points out that the distinction had been rejected in Solicitor-General v Radio Avon Ltd [1978]1 NZLR 225 at 232-3 where Lord Diplock's analysis in Attorney General v Times Newspaper Ltd [1974] AC 273 is cited with approval.

46. In Kopyto at 287 Dubin JA refers to the erroneous assumption in American jurisprudence (Bridges v State of California, 62 S Ct 190, 314 US 252 (1941) at 217) that scandalising contempt is to "preserve the dignity of the bench":

"But, with respect, the criminal offences of contempt of court, with which we are dealing, is not for the purpose of 'preserving the dignity of the bench' as the many cases to which I have referred demonstrate, and, with respect, I think has been misinterpreted in the American jurisprudence. It is apparent in reading American jurisprudence that the constitutional tradition and the philosophy underlying the manner in which justice is administered in the United States is different in many ways from that in Canada and throughout the Commonwealth. I need not dwell on those many differences."

He adopts the summary of the different approaches in Radio Avon at 234:

"The American courts appear to have directed their attention to the existence of a clear and present danger of a court being influenced, intimidated, impeded, embarrassed or obstructed in the administration of justice. English law, on the other hand, has also attached great importance to the need to preserve public confidence in the administration of justice generally. This court should not depart from that attitude subject, of course, in the type of contempt now under consideration, to the public right of fair comment and criticism, and to the possible defence of justification earlier referred to in this judgment." (emphasis supplied)

47. I refuse to enter the lists on the question whether the American approach involves a misapprehension of the nature of scandalising but the majority in Kopyto were much influenced by it.

Is scandalising contempt as found by the Divisional Court a "necessary" exemption in Hong Kong?

48. The Bill of Rights and the Basic Law distinguish the law in Hong Kong from that of the United Kingdom, Australia and so far as Radio Avon is concerned New Zealand because that case was decided before its Bill of Rights came into force. The question is whether the commonwealth approach to scandalising contempt as applied by the Divisional Court survives the Bill of Rights and the Basic Law as a necessary exemption to freedom of expression. As became clear in Kopyto, what is a "necessary" exemption depends upon the nature of the contempt - what must be proved to establish it and the local circumstances in which the due administration of justice has to be maintained.

49. It seems that American law provides no protection for the administration of justice as a continuing process. Yet, the American system is well respected and appears not to be under any obvious disability consequent upon the absence of this protection. If this protection is unconstitutional in Canada, Mr Kentridge asks how can it be necessary in Hong Kong?

50. The answer, I believe, lies partly in the commonwealth tradition and partly in what is necessary in the particular circumstances in Hong Kong. It is abundantly clear from the authorities relied upon by the Divisional Court, that the commonwealth traditional attaches great importance to the preservation of all the factors which contribute to the due administration of justice as a continuing process - as well as the integrity of proceedings in progress or in contemplation. Also, the "real risk" test can be regarded as well established by those authorities.

51. I can discern no practical difference between the "real risk" test in Radio Avon at 239 line 11 (the commonwealth tradition) and that held to be constitutional by Dubin and Brooke JJA in Kopyto in their impressive minority judgment at 289 to 209:

"It was essential for the Crown to prove that the statement made by the appellant was calculated to bring the administration of justice into disrepute. That is the actus reus of this offence. The mere fact the words are capable of bringing the administration of justice into disrepute does not suffice. What must be shown is that, by reason of the statement made by the appellant, there was a serious risk that the administration of justice would be interfered with. The risk or prejudice must be serious, real or substantial."

I have already referred to the passage in which Dubin JA points out what he considers to be the flaw in the American approach. In summary, the Divisional Court held that in order to establish the contempts alleged, proof was necessary that the statement (or conduct) was calculated to interfere with the administration of justice in its widest sense; that it involved a "real risk" that the due administration of justice would be interfered with and (the mental element) that there was an intention to interfere with the administration of justice, or recklessness by appreciating this possible consequence and ignoring it. This requisite mental element will almost always be implicit in the statement or conduct itself.

52. I readily accept Mr Kentridge's point that the administration of justice in Hong Kong is held in high repute both at home and abroad. There is every reason to think that it enjoys general confidence and respect. Therefore, it has little to fear from bona fide, temperate, and rational criticism. Indeed, the appellate process itself involves this and yet tends to increase confidence in the system. Further, like many other public institutions, it stands to benefit from, rather than be damaged by, such criticism - especially if constructive. Nor do I think that isolated excesses of disappointed litigants or their lawyers which are neither in the face of the court nor related to proceedings either pending or in progress, ought necessarily to be condemned as scandalising contempts. But, the spirit in which the attack is made is relevant.

53. Mr Kentridge's point that a rational attack is more likely to result in risk than a scurrilous and preposterous attack which may be recognised for what it is I do not accept as generally correct. Bona fide, balanced and justified criticism is susceptible to reasoned answer or even acceptance. Sustained scurrilous, abusive attacks made in bad faith, or conduct which challenges the authority of the court, are not susceptible to reasoned answer. If they continue unchecked they will almost certainly lead to interference with the administration of justice as a continuing process.

54. Further, the relatively small size of the Hong Kong's legal system is important. As is demonstrated in this case communication with a very substantial proportion of the population is easily achieved. Proceedings in court are widely publicised. Many judges are known by name because of this reporting. Confidence in our legal system, the maintenance of the rule of law and the authority of the court are matters of special importance in our society. There are frequent, if misconceived, expressions of anxiety in this respect. There is reason to believe that the ordinary citizen in Hong Kong regards the court as his ultimate and sure refuge from injustice and oppression.

55. One need go no further than to consider the likely effect upon the confidence of the ordinary citizen or an ordinary litigant in the administration of justice in its widest sense if an unsuccessful litigant, who is also a powerful subject, indulges in sustained attacks upon the court or judges which go unchecked.

56. Also, on the "necessity" point, Mr Kentridge was asked in his submissions whether a judge trying a case ought to be in the position of knowing that the losing party may indulge in a scurrilous attack upon him, or seek to punish him by harassment. His bold answer is that the fundamental right to freedom of expression means that a judge must endure such treatment and that it must be regarded as "coming with the job". This I unhesitatingly reject not only for the reasons already given. There is a further aspect of the administration of justice not touched upon in argument but nevertheless of importance. It is to be found in Arlidge, Eady & Smith on Contempt, 2nd Edn at 16-8. The authors put it in this way and I adopt their formulation:

"While it is true that the law of contempt is not concerned with the dignity of individuals taking part in the judicial process, or even with upholding respect for the law in any purely deferential sense, the administration of justice needs to proceed in circumstances of calm and dignity in order to be effective." (emphasis added)

The respondent's answer

57. Mr Ronny Tong SC, for the Secretary for Justice, has made cogent and detailed submissions upon the "necessity" point and supporting the judgment below. In brief, he submits that the scurrilous and abusive attacks made in this case cannot amount to a genuine exercise of the freedom of speech and that a modern, civilised society such as Hong Kong, relies upon the authority of and respect for the rule of law. The moment this respect is challenged, or the standing of the court is demeaned, this supremacy of the law is in doubt. This, he submits, is calculated to seriously interfere with the due administration of justice and in the circumstances of this case amounts to a necessary exemption from the right of free speech and freedom of expression. He supports both the reasoning and the conclusions of the court below.

58. For my part, I am indebted for some of my reasoning in this judgment to Mr Tong's submissions which I accept in substance.

Conclusion on scandalising contempt

59. I reject Mr Kentridge's main submissions without difficulty. For the above reasons, I would hold that the contempt defined by the Divisional Court is a necessary exemption to the fundamental rights of freedom of expression and freedom of the press under the Basic Law and the Bill of Rights. The Divisional Court considered the applicable law and authority with great care and rightly concluded that "real risk" of interference with the due administration of justice was the correct test. I do not repeat the reasoning and the conclusions with which I entirely agree, and I would uphold the decision.

60. I would only add that in this case that I doubt whether a detailed consideration of the type of readership of the newspaper was necessary. To my mind, a consideration of the nature of the articles with a readership of 2.3 million people inevitably involves a real risk. As to the necessary mental element, this is expressly established by the articles themselves. See for example the article of 8 January 1998 when the newspaper expressed the intention to destroy the authority of the Judiciary.

The pursuit of Godfrey JA

61. As to the pursuit of Godfrey JA, Mr Kentridge first submits that the court wrongly found the appellant guilty of conduct which was calculated to undermine public confidence in the due administration of justice whereas the contempt charged was wrongfully interfering with the administration of justice. With respect, this is a bad point. As I have already indicated, the ways in which the administration of justice as a continuing process are many. They certainly include undermining public confidence.

62. Essentially, however, Mr Kentridge's point is that there is no risk that the judge would be adversely influenced by this conduct either generally or in respective of a particular case. He criticises the Divisional Court's reliance upon those cases of contempt in which witnesses or jurors have been threatened or victimised on the basis that such people may well have been influenced whereas a judge certainly would not.

63. He cites a number of cases in support in which eminent judges have indicated that judges are not influenced by statements or comments in the media. By way of example, he relies upon Lord Salmon in Attorney General v British Broadcasting Corporation [1981] AC 303, 342:

"I am and have always been satisfied that no judge would be influenced in his judgment by what may be said by the media."

Although the harassing conduct directed at Godfrey JA was much more serious than the statements in the media, for my part I accept, as did the Divisional Court, that no judge in Hong Kong would be influenced in his judgment by it or anything like it.

64. On this Mr Kentridge suggests that the Divisional Court was therefore wrong in holding that there was a real risk that public confidence would be undermined because

"...it was inevitable that at least some sectors of the newspaper's readership would think that there was a possibility that Godfrey JA might be affected by the treatment of him, and that that might have affected his future handling of cases involving the Oriental Daily News in particular, and the press in general. If such conduct as in the present case is tolerated, it would also give rise to a misconception that it is permissible to resort to similar tactics after a person has lost his cause in court."

But the Divisional Court was not considering the narrow question whether this particular judge would have been influenced in his judgment but the much wider and equally important question whether this conduct would lead to the undermining of public confidence.

Conclusion on the pursuit of Godfrey JA

65. Much of the reasoning under scandalising contempt is relevant to this contempt. It is not necessary to repeat it.

66. For my part, therefore, I am satisfied that the Divisional Court applied the correct principles of law and that it was correct in finding that the necessary acts had been done with the requisite intention. I would dismiss the appeal on this contempt.

67. Finally, in spite of all the arguments raised, these contempts were plain, obvious and extremely serious.

The appeal on sentence

68. These examples of this type of contempt by the media are unprecedented. The attacks were made by those who normally are vociferous in seeking to uphold the rule of law and fundamental freedoms, not in seeking to damage them. They represent gross abuses of freedom of expression and freedom of the press.

69. They were rightly described by the Divisional Court as follows:

"The campaign which the Oriental Daily News waged against the Judiciary was without parallel in modern times. The features of this prolonged and sustained campaign which made it so unique include the venom of the language which was used, the outrageousness of the motives which it ascribed to its targets, and ... the impact which the campaign had on public confidence in the ability of Hong Kong's judges to dispense justice conscientiously and impartially.

... what was at stake in the Oriental Daily News' campaign was not the outcome of an individual case but nothing less than the rule of law itself. ... It was this ultimate challenge to the rule of law which makes these contempts probably the most serious examples of 'media' contempts which the courts in the common law world have ever encountered."

" The contempt of court consisting of the pursuit of Godfrey JA was equally unprecedented. We know of no case in which a judge has been harassed in the way in which Godfrey JA was. What made the pursuit of him particularly serious was that it was done, not as was suggested to educate him in the ways of paparazzi, but to pay him back for not going along with all of the Oriental Press Group's arguments in the case which he had heard."

70. Having outlined the seriousness of these matters, the Divisional Court reviewed and took into account the mitigating features advanced on the appellant's behalf, which included his acceptance of prime responsibility together with his unreserved public apology, his genuine remorse, his high reputation and unimpeachable character. Additionally, the court generously took into account certain matters in his favour which were not advanced on his behalf in that it had reservation over the extent of Mr Wong's responsibility for the contempts. It had a suspicion that the impetus for the campaign may not have come from him and that in this respect he did not enjoy full editorial independence.

71. Taking all these matters into account, including the unprecedented gravity of the contempt the court treated the publication of the various articles as one contempt and the harassment as another. It took a total of eight months imprisonment as the starting point. Having regard to the substantial mitigation, this was reduced to four months imprisonment which was achieved by passing 3 months imprisonment for each contempt, one month of which was to be served consecutively, making four months in all.

72. In this sentence, the court also took into account of its order that Mr Wong should pay four-fifths of the costs incurred by the Secretary for Justice for the prosecution, but it is to be noted that an order was also made against the Oriental Press Group Ltd which had to be enforced first. The order against Mr Wong cannot be enforced without a further order from the Divisional Court.

73. Mr Kentridge submits that eight months imprisonment was manifestly too high as a starting point, and that in the circumstances of the case a suspended sentence and a fine was the appropriate order. He recognised that the Divisional Court had been generous in finding mitigating factors but submitted that they were given insufficient weight. He emphasised Mr Wong's unreserved apology, his genuine and repeated remorse and his acceptance of full responsibility although he was not the writer. Emphasis was placed upon the fact that these proceedings will ensure that such contempts are never repeated in the future and that a fine is an effective deterrent together with costs on an indemnity basis.

74. It was further pointed out that these offences were not motivated by financial gain but by a genuine resentment over unfair decisions. Finally, it was submitted that Mr Wong had not only made a public apology but had suffered public humiliation as a major item of news and he had suffered the indignity of three days in custody which had been serious punishment to him.

75. It was suggested that the standing of the court would be enhanced by showing mercy. Cases were cited supporting the proposition that in cases in other jurisdictions more lenient sentences had been passed.

Conclusion on sentence

76. With respect to the submissions made, it is impossible for this Court to say that eight months imprisonment as a starting point was manifestly excessive for offences of this persistence and seriousness. I would conclude that eight months was in all respects moderate. Thereafter, the Divisional Court gave generous weight to the substantial mitigating factors. Nothing that Mr Kentridge has advanced persuades me that these unprecedented contempts did not merit immediately custodial sentences. Not without regret for Mr Wong's personal position, I would hold these sentences to be temperate, proper and in all the circumstances necessary. For these reasons, I would dismiss this appeal against sentence.

Mayo, J.A.:

It is useful to bear in mind the two charges which were laid against the Appellant. They were that the Appellant was guilty of contempt of court in that:

"(1) They sought to threaten, harass and/or intimidate Godfrey JA during 13, 14 and 15 January 1998 (by having him pursued by their employees and/or agents and/or others) by reason of a judgment which he had previously delivered, thereby wrongfully interfering with the administration of justice.

(2) They published articles which contained passages of crude and vicious abuse of the judiciary as set out in paragraphs 9(2) to (8), with little if any reasoned argument, and which alleged systematic bias and wilful abuse of power (those allegations being without any justification whatsoever). The articles also contained threats to the judiciary. The articles, considered separately and cumulatively, were calculated to undermine public confidence in the administration of justice in Hong Kong."

77. This appeal was greatly simplified by the fact that Mr. Kentridge, Q.C. for the Appellant accepted at the outset that the newspaper articles were abusive, intemperate and shocking and that the campaign against the Judiciary had been conducted over a period of some time. Also it was accepted that the articles had not been written in good faith. They had been actuated by resentment at what the paper perceived to be its persecution by the Judiciary. Likewise it was accepted that the treatment of Godfrey, J.A. referred to in charge 1 had not been to "educate" him in the ways of the so called Paparazzi. It had been an attempt to reek revenge upon him for not accepting the submissions which had been made to him on their behalf. A further important factor which was accepted was that the circulation of the Oriental Daily News was and is very extensive. It enjoys a daily readership in excess of 2 million people. It is possible to state that none of the court below's findings of fact were in any way subject to challenge.

78. The approach adopted by Mr. Kentridge to this was that the articles complained of were of such an excessive nature that the allegations were preposterous and that it was unlikely that they would constitute a real danger to the administration of justice.

79. The main issue which was ventilated on this appeal was the law which is applicable to contempts of court of this nature. It related to Article 16 of the Bill of Rights and the extent (if any) to which Article 16 had modified the existing common law on the subject of scandalising the court.

80. Article 16 reads as follows:

" Article 16

Freedom of opinion and expression

(1) Everyone shall have the right to hold opinions without interference.

(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

(3) The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary -

(a) for respect of the rights or reputations of others; or

(b) for the protection of national security or of public order (ordre public), or of public health or morals.

[cf. ICCPR Art. 19]"

81. Mr. Tong, S.C. for the Respondent argued that the exceptions referred to in Article 16 (3)(b) were such that the existing common law had not been modified as a consequence of the enactment of the Bill of Rights. This being so all the various cases based upon R v. Gray [1900] 2 QB 36 were still applicable to this situation.

82. According to Mr. Tong a contempt of court is committed where the publication was calculated to impair the confidence of the people in the Judiciary or the administration of justice or there is a risk that the publication tended to lower the authority of the court as a whole or that of its judges and excites misgivings as to the integrity, propriety and impartiality of the judicial office. In all these matters the test was not what the writer intended but the likely result of the publication. I have taken this from the very helpful skeleton argument prepared by Mr. Tong and he cites these cases in support of the propositions he advances.

"1. R v. Odhams [1957] 1 QB 73, Div Ct.

2. AG v. Mundey [1972] 2 NSWLR 887

3. SG v. Radio Avon Ltd [1978] 1 NZLR 225, NZCA

4. Chokolingo v. Law Society of Trinidad and Tobago [1978] 30 WIR 372, C.A. of Trinidad and Tobago

5. Badry v. DPP [1983] 2 AC 297, P.C.

6. SG v. Radio New Zealand [1994] 1 NZLR 48, Full Court

7. AG v. Lingle [1995] 1 SLR 696"

83. Mr. Kentridge accepted that the crime of contempt of court still existed which included scandalising the court. It was his contention however that for the offence to have been committed it had to be established that there was a substantial risk to the administration of justice.

84. Mr. Kentridge also accepted that freedom of speech under the Basic Law and the Bill of Rights was not absolute. A balancing exercise had to be undertaken to determine whether there were legitimate constraints. Any deviation had to be based upon necessity rather than convenience or desirability. What was meant by necessity was that the court had to be satisfied that the publication constituted an imminent and substantial danger to the administration of justice.

85. All of this was separate to the question of interference with the administration of justice. He readily accepted the necessity to restrict publications relating to impending jury trials and prevent threats to witnesses to proceedings or parties thereto or jurors or any attempts to influence judges.

86. In relating these propositions to the facts of the instant case Mr. Kentridge contended that the question which had to be asked was - Did the articles pose such a danger that they constituted a necessary constraint on freedom of speech? He accepted that you had to look at the meaning and context of the articles to determine whether they constituted a clear and imminent danger to the administration of justice. In doing so one had to bear in mind the effect the articles would have on a reasonable person of average intelligence and disposition and then ask oneself the question whether it was necessary to criminalise conduct of this nature.

87. In formulating his propositions on the law Mr. Kentridge placed heavy reliance upon the Canadian case of R v. Kopyto [1988] 47 DLR (4th) 213. This case involved a consideration of the Canadian Charter of Rights and Freedoms and it is clear that some of the Judges were influenced by the jurisprudence of the United States of America. It has to be said however that the Canadian Charter is in many respects similar to our Bill of Rights.

88. It will be appreciated from all of this that the main difference in the approach adopted by respective counsel is whether guidance is to be sought from the Canadian model or from other sources.

89. Mr. Tong submitted that the New Zealand Bill of Rights had more in common with the Hong Kong Bill of Rights than the Canadian Charter. Perhaps the most important consideration was that both pieces of legislation have been modelled upon the International Covenant on Civil and Political Rights (ICCPR). Other considerations also have to be borne in mind. Our Article 16 (2) is identical to Article 19 of the ICCPR and is very similar to Article 10 of the European Convention on Human Rights. Having given the matter careful consideration I have come to the conclusion that the New Zealand Bill of Rights and the cases based upon that legislation provide better guidance than the Canadian Charter.

90. Having said this I do not accept the validity of the contention advanced by Mr. Tong that Article 16 does not supplant or modify the law of contempt. In my view the focus of attention has to be Article 16 and a balancing exercise is required to determine whether it is necessary to curtail the freedoms provided by Article 16 (2). In this connection it is apparent from the decision of the European Court of Human Rights in The Sunday Times v. The United Kingdom [1979] 2 EHRR 245 that it was accepted the papers freedom of expression could in certain circumstances be interfered with. This was in the context of contempt of court. This was perhaps hardly surprising as Article 10 of the Bill of Rights guarantees a fair and public hearing by a competent independent and impartial tribunal and it may well be the case that the rights conferred by Article 16 may be incompatible with those conferred by Article 10.

91. What is however clear is that any restriction must be in accordance with the provisions of Article 16 (3) and must be necessary to achieve the legitimate objects to be pursued.

92. These questions were considered by Rogers, J. (as he then was) in the AG v. CHEUNG Kim-hung [1997] 7 HKPLR 295. He said at p. 303:

"As Mr Kwok has submitted, if the law of contempt is to prohibit the publication of an article such as is in issue in the present case, the restriction on the publication must satisfy each of the following tests:

(a) it must be provided by law

(b) the law of contempt must intend to achieve one of the permissible objectives set out in article 16(3) and

(c) it must be necessary for the achievement of the relevant objective or objectives and be proportionate to the legitimate aim pursued.

In my view the law of contempt in so far as it is sought to be applied in these proceedings does fulfil all these three tests.

So far as the requirement that it is provided by law is concerned, it seems to me that the law of contempt is provided by law. The law satisfies the criteria because the law can be reasonably ascertained and the consequences of any given action can be foreseen to a reasonable degree. In this respect I have regard to what was said by the majority [of the European Court of Human Rights] in interpreting art 10 [of the European Convention on Human Rights] in the case of Sunday Times v. United Kingdom (1979) 2 EHRR 245 at 271 para 49 where they said:

'In the Court's opinion, the following are two of the requirements that flow from the expression "prescribed by law". First, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable the citizen to regulate his conduct; he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty; experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.'

One of the exceptions in art 16(3) is for the respects of rights of others.

Article 10 of the Bill of Rights articulates in my view one of those rights. It provides as follows:

'All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. 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; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.'

Finally, the Privy Council in the case of Ming Pao Newspapers Ltd v Attorney General (1996) 6 HKPLR 103 approved the Court of Appeal's approach in giving the word 'necessary' its normal meaning. As regards the question of proportionality; of course the fundamental right of freedom of speech must be given as generous an application as possible and any restriction must be narrowly interpreted and be proportionate to the aims sought to be achieved, but in my view that test is also satisfied."

93. With respect I would agree with this statement of the law.

94. Turning to the publications referred to in the 2nd charge it is helpful to consider the New Zealand case of The Solicitor-General v. Radio New Zealand Ltd. [1994] 1 NZLR 48 which is a post Bill of Rights case. When considering what they referred to as 'Proof of Corrosive "tendency" ' the Court had this to say.

"Proof of corrosive 'tendency'

In argument there was some discussion regarding the meaning of 'tendency' in this context, and how it was to be proved. We take the meaning adopted in Solicitor-General v Radio Avon Ltd at p 234 which of course is binding on us, a real risk as distinct from a remote possibility that the broadcast items would undermine public confidence in the administration of justice. A similar approach has been followed in Australia where the expressions used include a real risk of interference with the administration of justice, a substantial risk of serious injustice or a real and definite possibility that the conduct may prejudice the administration of justice; see Hinch v Attorney-General (Vic) at pp 23, 34, and 47. Direct proof will rarely be possible. The Court must consider all the circumstances of the publication: Attorney-General v New Statesman and Nation Publishing Co Ltd at p 10, following Attorney-General v Leveller Magazine Ltd per Lord Edmund-Davies at p 465. Relevant factors include the statements published, the timing of their publication, the size of the audience they reached, the likely nature, impact and duration of their influence; see Hinch v Attorney-General [1987] VR 721, 740, 742."

95. As can be seen they did in that passage also consider the case of Solicitor-General v. Radio Avon Ltd. [1978] 1 NZLR 225 which involved a question of scandalising the court. In that case Richmond P. said at p.233 of the report.

"Contempt by 'scandalising' the court is, of course, conduct which, in Lord Diplock's words, is calculated to undermine the public confidence in the proper functioning of the courts. It is to be noted that Lord Diplock, like Lord Russell, makes no distinction between one form of contempt and another from the point of view of the intent of the defendant. In the light of the approval given in Ambard v Attorney-General to Lord Russell's definition we doubt whether it would in any event be open to this court to introduce a special requirement of mens rea into this one branch of the law of contempt. We would not in any event be prepared to do so as we think that the public interest in the administration of justice is so important that it justifies the attitude which has been taken by the English courts.

We shall now refer to another passage in Lord Diplock's speech in Attorney-General v Times Newspapers Ltd. After describing some of the features of the summary remedy for contempt of court, Lord Diplock said:

'The courts have therefore been vigilant to see that the procedure for committal is not lightly invoked in cases where, although a contempt has been committed, there in no serious likelihood that it has caused any harm to the interests of any of the parties to the litigation or to the public interest. Since the court's discretion in dealing with a motion for committal is wide enough to entitle it to dismiss the motion with costs, despite the fact that a contempt has been committed, if it thinks that the contempt was too venial to justify its being brought to the attention of the court at all, the distinction between conduct which is within the general concept of "contempt of court" and conduct included within that general concept, which a court regards as deserving of punishment in the particular circumstances of the case, is often blurred in the judgments in the reported cases. The expression 'technical contempt' is a convenient expression which has sometimes been used to describe conduct which falls into the former but outside the latter category; and I agree with my noble and learned friend, Lord Reid, that, given conduct which presents a real risk as opposed to a mere possibility of interference with the due administration of justice, this is at very least a technical contempt. The seriousness of that risk is relevant only to the question whether the contempt is one for which the court, in its discretion, ought to inflict any punishment and, if so, what punishment it should inflict' ([1974] AC 273, 312; [1973] 3 All ER 54, 74-75).

The views which had been expressed by Lord Reid and with which Lord Diplock concurred in the foregoing passage were as follows:

'I think the true view is that expressed by Lord Parker CJ in Reg v Duffy, Ex parte Nash [1960] 2 QB 188, 200, that there must be "a real risk, as opposed to a remote possibility". That is an application of the ordinary de minimis principle. There is no contempt if the possibility of influence is remote. If there is some but only a small likelihood, that may influence the court to refrain from inflicting any punishment. If there is a serious risk some action may be necessary. And I think that the particular comment cannot be considered in isolation when considering its probable effect. If others are to be free and are likely to make similar comments that must be taken into account' ([1974] AC 273, 298-299).

In Attorney-General v Times Newspapers Ltd their Lordships were not directly concerned with the type of contempt which is in issue in the present appeal. Indeed, Lord Morris of Borth-y-Gest noted that on behalf of the respondents it had been accepted that there must be no 'scandalising' of the court ([1974] AC 273, 303; [1973] 3 All ER 54, 67). Even so, we accept Mr Palmer's submission that in the present case the appellants ought not to have been convicted of contempt unless the facts established beyond reasonable doubt that there was a real risk, as opposed to a remote possibility, that the broadcast item would undermine public confidence in the administration of justice. But we think that a real risk of that kind was established. It is true, as Mr Palmer said, that this broadcast was ephemeral and lasted only for about 40 seconds. Nevertheless, one of the affidavits shows that the listening audience of Radio Avon represents some 50,000 people of the ages of 10 years and upwards. In our opinion the broadcasting of an imputation of judicial partiality to an audience of that size and nature certainly carried with it a real risk, as opposed to a remote possibility, that public confidence in the administration of justice would be undermined. For that reason we think that Radio Avon was properly found guilty of a contempt of court in the present case."

96. I am satisfied that this is a correct statement of the law and that it is applicable following the enactment of the New Zealand Bill of Rights. I am also satisfied that having regard to the scurrilous and abusive nature of the articles complained of and the duration of the attack on the Judiciary there can be no doubt that the court below was right to hold that the contempt of court complained of in the 2nd charge had been established. This is particularly the case having regard to the duration of the campaign against the Judiciary and the wide reach of the publication.

97. It is also perhaps worth adding that having regard to these factors it may well be the case that even if I am wrong in finding that the New Zealand Bill of Rights approach is the correct one the result may well have been the same under the Canadian Charter. I say this because the articles complained of in this case were very much more serious than the subject matter of the proceedings in Kopyto. In that case it was accepted that the outburst of the lawyer who made the offending remarks had been made in good faith. That is in sharp contrast to the publications in the present case. It is also evident from the majority judgments of the court that the offence of scandalising the courts was consistent with the Canadian Charter. In an extreme case such as the present one it is likely that the Appellant would have been found guilty of contempt of court even under the Canadian Charter.

98. That then leaves outstanding the 1st count of harassing and/or intimidating Godfrey, J.A. in what has been described as the Paparazzi Campaign. Mr. Tong placed heavy reliance upon the case of the Attorney General v. Butterworth & Others [1963] 1QB 696. He placed particular reliance upon a passage at p.725. from the judgment of Donovan, L.J.:

"The administration of justice is, after all, a continuing thing. It is not bounded by the day's cases. It has a future as well as a present. And if somebody pollutes the stream today so that tomorrow's litigant will find it poisoned, does he appeal to the court in vain?

There are indeed decisions which say that he does not. Reg. v. Martin is one, and I can see no essential difference between an attempt to punish a juror for having done his duty in court and an attempt to punish a witness for having done the same thing.

Kay J. said, in Rowden v. Universities Co-operative Association Ltd., that he could not imagine a grosser offence against a court of justice than to exercise a power, legal or illegal, in order to punish a witness for giving evidence, and he made no distinction in this regard between pending proceedings and proceedings that are concluded, though it is true that more were to come in that case."

99. He also placed reliance upon a passage from Lord Denning's judgment at p. 723:

"It seems to me that the intimidation of a witness is only a contempt of court if it is done with the purpose of deterring him from giving evidence or influencing him to give it in a sense different from that in which he would otherwise have given it, and the victimisation of a witness is only a contempt of court if it is done with the purpose of punishing him for having given evidence in the sense he did.

But when the act is done with mixed motives, as indeed the acts here were done, what is the position? If it is done with the predominant motive of punishing a witness, there can be no doubt that it is a contempt of court. But even though it is not the predominant motive, yet nevertheless if it is an actuating motive influencing the step taken, it is, in my judgment, a contempt of court. I do not think the court is able to, or should, enter into a nice assessment of the weight of the various motives which, mixed together, result in the victimisation of a witness. If one of the purposes actuating the step is the purpose of punishment, then it is a contempt of court in everyone so actuated."

100. While it is true that this case involved "punishing" a witness I can see no reason why the observations which were made by Donovan, L.J. and Lord Denning should not be equally applicable to an attempt to "punish" a Judge.

101. It was undoubtedly conduct which manifested an intent to interfere with the administration of justice. It was imperative that action should be taken to demonstrate that this type of behaviour would not be tolerated. Again I am satisfied that the court below was right to find the Appellant guilty of contempt of court on this count.

102. So far as sentence is concerned I have no doubt that a severe penalty was called for. I can see no reason to believe that the sentences which were imposed on these counts were either wrong in principle or manifestly excessive. In my view the appeal against sentence should also be dismissed.

Leong, J.A.:

The appellant was found guilty of two charges of contempt of court. The first charge of contempt relates to the pursuit of Godfrey J.A. and this is said to be wrongful interference of the administration of justice. The second charge is contempt by scandalizing the court and this relates to the publication within a period of one month, of seven articles in the Oriental Daily News (ODN). These articles are said to be calculated to undermine public confidence in the administration of justice in Hong Kong. The present appeal is against those convictions.

103. The judges below found the articles in the second charge "were not spontaneous, unconsidered reaction of a disappointed litigant, but amounted to a deliberate and persistent campaign of vilification of Hong Kong's Judiciary" and " ... on any view this was not criticism, albeit outspoken and trenchantly expressed, of the Judiciary. The articles were a series of personal attacks on the Judiciary in abusive, intemperate and shocking language. They contained no reasoned argument to speak of, and the allegations which they made were without foundation."

104. The appellant accepts these findings on the nature of the articles and he accepts full responsibility for their publication.

105. It is accepted that at common law, as laid down by Lord Russell in R v. Gray [1900] 2 QB 36, "any act done or writing published calculated to bring a Court or Judge into contempt or to lower his authority is a contempt of court" and "any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the court is a contempt of court." Thus scurrilous abuses of judges and courts constitute contempt by scandalizing the court. But this is subject to the qualification that criticism of judges and courts for the public good would not amount to contempt if they lie within the bounds of "reasonable argument or expostulation" (R v. Gray) and "within the limits of reasonable courtesy and good faith" (Metropolitan Police Comr. Ex p. Blackburn (No. 2) [1968] 2 QB 150). In AG for NSW v Mundey [1972] NSWLR 887, Hope LA, quoting Rich J in R v Dunbabin Ex parte Williams [1935] 53 CLR 434, made it clear that the "law permits in respect of courts, as of other institutions, the fullest discussions of their doings so long as that discussion is fairly conducted and is honestly directed to some definite public purpose ... ." But he added (at p.910) that there are two qualifications to the right of criticism, the first is "criticism will constitute contempt if it is merely scurrilous abuse" but it must be "a very strong one". In the second place, the criticism may amount to contempt if it "excites misgivings as to the integrity propriety and impartiality brought to the exercise of the judicial office."

106. On the findings of the judges on the nature of the articles in the second charge, publication of the articles undoubtedly constituted contempt by scandalising the court at common law and the appellant can find no shelter behind the qualifications of the right to criticise on matters of public concern.

107. However, the appellant contends that the common law offence of scandalizing the court has become "virtually obsolescence in England" (per Lord Diplock p.347 Secretary for State for Defence v. Guardian Newspapers Ltd. [1985] 1 AC 339 at 347) and merely scurrilous abuses no long constitute contempt by scandalising the court.

108. The appellant's submission is that Article 16(2) of the Bill of Rights and Article 27 of the Hong Kong Basic Law now guarantee the right to freedom of speech in Hong Kong and these afford him protection from liability in contempt for the publication of those article.

109. Mr. Kentridge for the appellant is not contending that contempt by scandalizing the courts no long exists under the Bill of Rights. He accepts that even though the right to freedom of expression is guaranteed under the Bill of Rights, it may be restricted if it is necessary for the protection of the administration of justice. But he contends that restriction on publication by way of an offence of contempt of court is only necessary where the articles are such as to constitute a real, substantial and imminent danger to the administration of justice. That being the test, it is submitted, publication of the articles in the second charge, crude and scurrilous abuses of the judiciary as they are, constituted no contempt of court because the evidence does not justify any finding that the articles posed a danger to the administration of justice that was real, substantial and immediate. The case against the appellant did not pass that threshold. The appellant's test is based on the majority decision of the Canadian case of R v. Kopyto [1987] 47 DLR (4th) 213.

110. The judges below did not accept this test. They preferred the New Zealand test in Solicitor General v. Radio Avon Ltd and Anr [1978] 1 NZLR 255 that to restrict the right to freedom of expression, there must be "a real risk, as opposed to a remote possibility, that the ... item would undermine public confidence in the administration of justice." This followed the approach in AG v. Times Newspapers Ltd. [1974] AC 273 where the Court of Appeal held that to amount to contempt of court, "there must be a real risk as opposed to a mere possibility of interference with the due administration of justice." With these cases in mind, the judges below adopted a test along the New Zealand approach. It is this: "Was there a real risk that the acts complained of would undermine confidence in the due administration of justice in the minds of at least some of the persons who were likely to become aware of the publication or acts complained of?" Their answer to the question they posed to themselves was in the affirmative and they found contempt by scandalizing the court had been proved.

111. The appellant contends the judges were wrong to follow Solicitor General v. Radio Avon Ltd and Anr. which was decided before the New Zealand Bill of Rights came into being. The judges, it is submitted, should have followed the Canadian view in Kopyto where the provisions in the Canadian Charter of Rights and Freedoms are similar to the Bill of Rights in Hong Kong.

112. The question is that were the judges wrong to prefer the New Zealand approach and if not, whether the publication of the articles constitute contempt of court under their test.

113. Article 19 of the International Covenant on Civil and Political Rights 1966 (ICCPR) recognises freedom of expression but it is expressed to be subject to any "necessary" legal restrictions for the respect of the rights and reputations of others. The Hong Kong Bill of Right affirms the ICCPR and in Article 16(2) the right to freedom of expression is guaranteed but subject to restrictions provided by law and which are "necessary" for the protection of other rights, national security or public order. "Necessary" in the context of Article 16, it has been held, should be given its normal meaning (Ming Pao Newspaper Ltd v. A.G. [1996] AC 906). The New Zealand Bill of Rights Act 1990 which also affirms the ICCPR provides that the right to freedom of expression is subject to "such reasonable limits as can be demonstrably justified in a free and democratic society". In Solicitors General v. Radio New Zealand [1994] 1 NZLR 48, a case decided after the enactment of the New Zealand Bill of Rights, the Full Court held that the test of that limit is proof beyond reasonable doubt that there was "a real risk as distinct from a remote possibility that the conduct would undermine public confidence in the administration of justice". The European Convention on Human Rights in Articles 10 provides for the right to freedom of expression but the exercise of this right carries with it duties and responsibilities and may be subject to restrictions as are prescribed by law and are "necessary in a democratic society for the prevention of disorder ... or for maintaining the authority and impartiality of the judiciary." In Sunday Times v. The United Kingdom [1979] 2 EHRR 245, the European Court of Human Rights decided that "maintaining the authority and impartiality of the judiciary is one purpose of the law on contempt of court". The test is whether there is pressing social need for such restrictions.

114. In Singapore, its Constitution guarantees in section 14 the right to freedom of speech and expression but subject to Parliament may by law impose restrictions as it considers it necessary and expedient in the interest of the security of Singapore or ... public order. But "any one exercising that right must observe a corresponding duty of responsibility. No one is entitled under the guise of freedom of speech and expression to make irresponsible accusations against inter alia the judiciary" (AG v. Lingle [1995] 1 SLR 696 at 761). The Canadian Charter of Rights and Freedoms guarantees the right to freedom of expression subject only to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society" and this is expressed as the aspiration of the Canadian people.

115. In the United States, freedom of speech is an absolute guarantee under the American Bill of Rights and contempt by scandalizing the court is not recognised and other types of contempt of court require proof that the words or statement constitute a real and imminent danger to the administration of justice. The United Kingdom has no expressed constitutional guarantee of freedom of expression. But Lord Reid in AG v. Times Newspapers Ltd. said that "freedom of speech should not be limited to any greater extent than is necessary but it cannot be allowed where there would be real prejudice to the administration of justice." Contempt of court in the United Kingdom is now provided in the Contempt of Court Act 1981 under which publications which create a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced is contempt of court with strict liability. In Australia there is no constitutional guarantee of freedom of speech, but in Gallpher v. Durack [1983] 45 ALR 53, Murphy J. said this, "The absence of a constitutional guarantee does not mean that Australia should accept judicial inroads upon freedom of speech which are not found necessary or desirable in other countries. At stake is not merely the freedom of one person; it is the freedom of every one to comment rightly or wrongly on the decisions of the courts in a way that do not constitute a clear and present danger to the administration of justice." The test suggested was there must be a "clear and present danger to the administration of justice".

116. Thus different countries guarantee the right to freedom of expression in different ways but each country does permit restrictions to be imposed by way of the offence of contempt of court if it is necessary to protect its administration of justice and each country adopts its own test according to the people's aspiration and the country's social circumstances. But it would seem that the "real risk" test is preferred among common law countries.

117. As may be seen from above, the Hong Kong position on the legal restrictions on freedom of expression is not similar to that in Canada where the restrictions must be such as are "reasonable and demonstrably justified in a free and democratic society. The Canadian case of Kopyto was decided in the light of the Canadian Charter according to the Canadian social circumstances and therefore decided against a background totally different from that of Hong Kong. Goodman J.A. found the words complained of in Kopyto "no more than an expression by the appellant of an unfavourable opinion with respect to a court decision" and "if such opinion were expressed by such person in a respectful, albeit firm manner ... it would not have constituted contempt of court even before the Charter came into effect." This is in stark contrast to the articles in the second charge which are wholly abuses directed at the judges and the courts. In any case, the Canadian approach should be treated as providing guidance and it cannot be said that the judges were not justified in refusing to follow Kopyto. Also, I see no reason why the judges below should not have applied the test they had decided upon. The appellant would be protected if the publication of the articles survives that test.

118. Was there a real risk that the published articles would undermine public confidence in the administration of justice? In Solicitors General v. Radio New Zealand, the court was of the opinion that direct proof of such a risk will rarely be possible and the court must consider all the circumstances of the publication. However, the court identified a number of relevant factors which included, "the statements published, the timing of their publication, the size of the audience they reached, the likely nature, impart and duration of their influence." It should be noted that the judges below were aware of these relevant factors when they decided on the evil consequences of the publication of the articles. Suffice to say, having regard to the fact that the Oriental Daily News has a large circulation with a readership of over 2.3 million, and the newspaper is intended for the reasonable and average person in Hong Kong and that the publication was in the nature of a sustained campaign for over a month against the Judiciary, the judges were entitled to conclude that "the newspaper clearly wanted its readers and the public to believe, that the Judiciary was an instrument of political persecution and that the judges had no integrity at all" and if that were believed, "there would be very little left in the confidence of the public in the administration of justice in Hong Kong." Their finding was clearly supported by the evidence and their conclusion that the second charge has been proved cannot be challenged.

119. The 1st charge is direct interference with the due administration of justice. The pursuit and harassment of Godfrey J.A. lasted over a period of four days. This received widespread media coverage including television coverage. The motive and real purpose behind such an operation was found by the judges as "to take revenge for the court's decisions against the Oriental Press Group and to meet out a punishment to the judge for his judgments against the Group. The so called educational purpose of the operation was clearly an excuse which cannot hold up to scrutiny". This finding is not challenged by the appellant. In AG v. Butterworth [1963] 1 QB 696 Pearson L.J. had this to say as regards intimidation of witnesses, "In my judgment, however, such victimisation, because it tends to deter persons from giving evidence as witnesses in future proceedings, and giving that evidence frankly and fully and without fear of consequences, is an interference with the due administration of justice as a continuing process and does constitute contempt of court." Thus in direct interference, it is the effect of the conduct complained of on others that is material and not whether the person to whom the conduct has been directed had in fact been affected by it. Whether or not Godfrey J.A. took the harassments unperturbed is immaterial. On this finding, there must be a real risk that the public may have been led to think that judges may not act independently or fairly for fear of punishment for their decision by those against them the decision has been made, and thereby confidence in the due administration of justice would be undermined. The judges cannot be faulted in their conclusion that this charge of contempt of court is also proved.

120. On the sentences imposed, having regard to the nature of the offences and the scale in which the acts of contempt have been carried out, they are neither wrong in principle nor manifestly excessive and there is no justification for suspending the sentences. I would dismiss both the appeal against conviction and the appeal against sentence.

Mortimer, V.-P.:

The appeal on both liability and sentence is dismissed.

121. We make an order nisi for costs against the appellant.

122. The appellant is on bail pending appeal and until 10 days after this judgment. This was granted by Liu JA on 3 July 1998 on the terms that he must surrender to the High Court within 10 days after this judgment. Because of the intervening holidays and for the sake of clarity, we order that the appellant shall surrender to the High Court before P. Chan CJHC on Friday, 19 February 1999 at 10 a.m. The order of Liu JA of 3 July 1998 is varied accordingly.