XCHRX SECRETARY FOR JUSTICE v. APPLE DAILY LTD. AND ANOTHER

HCMP1926/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.1926 OF 2000

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J U D G M E N T

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1. This is a motion to commit the 1st and the 2nd defendants for contempt of court. The history of this matter is that on 4 October 1999, a trial commenced in the Court of First Instance of the High Court against one Yuen Wing Kong ("Yuen") for the murder of a five-year old child. The trial was before a jury, and on 5 October 1999, when the trial was under way, an article was published in the Apple Daily Newspaper, a newspaper which it is agreed is published by the 1st respondent herein, Apple Daily Limited, purporting to be a report of the trial. The article was in Chinese and clearly identified the accused in that trial by name and photograph. It went on to describe him as a paedophile or otherwise suggested that he had paedophilic tendencies. No evidence for such allegations had been adduced at the trial, nor was it part of the case for the prosecution. The article further suggested that Yuen had committed the murder in order to silence the victim when no such allegations had been made during the course of the trial up to the time of publication; and further, that he had committed the murder in cruel and callous circumstances before any jury had convicted him of murder.

2. The article came to the attention of counsel for the accused, and on 6 October 1999, he applied for the jury to be discharged, with the trial judge granting that application and ordering a retrial.

3. At the time of the publication, the Apple Daily had a circulation of approximately 428,000 and a readership of approximately 1,736,000.

4. On 5 May 2000, the Secretary for Justice was granted leave to apply for an Order of Committal against Apple Daily Limited and its editor-in-chief, Ip Yut-kin, the 2nd respondent herein. By the proceedings presently before me, the Secretary for Justice moves the court for an Order of Committal against the 1st and the 2nd respondents.

5. Mr McCoy, for each of the respondents, concedes from the outset that the publication of the article on 5 October 1999 was a criminal contempt and accepts that the only matter for me to determine is the punishment to be meted out to the respondents.

6. Mr Yu has placed before me arguments indicating the importance to our system of justice of fair and accurate reporting by the newspapers who report on proceedings in our courts, and the damage done to the accused and the family of the victim in the trial which was halted together with the attendant costs and stress occasioned upon all involved in a retrial. He refers me to The Queen v. Thomson Newspapers Ltd ex parte Attorney General [1968] 1 WLR 1 where Lord Parker CJ said (at 4) :

"No doubt the most serious form of contempt from the point of view of likely prejudice is the sort of case where a photograph is published of an accused, and adverse comment is made on him as an accused person in a particular trial."

Further, in the same report :

"... if anybody and any newspaper chooses to make highly derogatory remarks in relation to someone who happens to be an accused, it is clearly done at their peril, and it is for that reason that newspapers very properly take elaborate precautions, so far as they can, to see that they are not culpable in that sense."

7. Mr McCoy in his mitigation urges that the article written by the reporter and published on 5 October 1999 contained no more than material which had been previously published in other newspapers, some time prior to the trial, and that the reporter in quoting the contents of those newspaper reports from other newspapers did so in the belief that he was reporting established facts. This mistaken fact was accepted as being the truth by those various layers of responsibility through which the article passed before publication, including the hands of the editor-in-chief, the 2nd respondent herein.

8. Mr McCoy does not seek to justify the contempt by this mitigation but argues that, in all the circumstances, a penalty should only be visited upon the company that is the publisher and the 1st respondent. The editor-in-chief, he argues, performed his duties properly. Not to the extent that he prevented the publication of the offending article, but at least to an extent that meant the offence was committed through a reliance on material passed to him from those below which he assumed was accurate thus leading to publication. It is argued that he has been punished already by his public admission to criminal contempt of court and his exposure as a party to this matter.

9. Mr McCoy further points to measures which have been effected in the company of the 1st respondent since the publication of the article to prevent a recurrence of contempt and lectures which have been given to the staff of the 1st respondent, to alert them to the possibility of contempt in reporting future court proceedings.

10. Mr McCoy refers me to Director of Public Prosecutions v. John Fairfax & Sons Ltd and Ors [1987] 8 NSWLR 732, where it was held that the publication of a newspaper article likely to prejudice the fair trial of an accused constituted a serious contempt and even though the publication was not deliberate, wilful, reckless or grossly negligent, it displayed a degree of carelessness which warranted the publisher as the party principally responsible being punished by the imposition of a fine but did not warrant a fine being imposed upon the editors or the journalist.

11. I accept that the respondents in this matter have not offended in this way before and they are therefore said to have a clear record. And I further accept that this is a case where the publication of the article resulted from a series of careless actions by the 1st and 2nd respondents rather than any deliberate, wilful, reckless or grossly negligent act.

12. Mr McCoy further argues that the letters written by the 1st respondent, through their solicitors, to the Secretary for Justice very soon after the publication of the article, accepting responsibility for publication, amount to an early plea and acceptance of contempt. Mr Yu, on the other hand, argues that whilst this was an admission of the publication, it was not an admission of contempt. In that, he is correct. However, responsibility for publication was admitted and an apology given in terms that to have then contested the contempt would have been a difficult argument for counsel.

13. In Director of Public Prosecutions v. John Fairfax & Sons Ltd, the President of the Court, Kirby JA said (at 747) :

"... Whilst it is not necessary in this case to vindicate the authority of the Court, it is necessary emphatically to uphold the due observance of the law of contempt, with the important public interests which that law secures. It is also necessary to deter the first opponent and others in a like position from a repetition of the carelessness which led to the publication on this occasion. A finding by the Court and a rebuke would not sufficiently reflect the high importance of safeguarding the fair trial of persons facing charges before the courts. That interest is only secured in this case by imposing a fine..."

I would echo those sentiments. Taking into account the widespread publication of the Apple Daily Newspaper, the damage which the article caused, but bearing in mind the early acceptance of responsibility, although somewhat guardedly by the 1st and 2nd respondents, I hold that the respondents and each of them are in contempt of court upon the charges contained in the applicant's motion

14. I order that the 1st respondent, Apple Daily Limited, be fined the sum of $100,000. I further order that the respondents and each of them pay the costs of the applicant of and incidental to the motion for contempt.