ATTORNEY GENERAL v. CHEUNG KIM HUNG and Another

1996 MP No. 2160

HEADNOTE

Contempt of Court - Publication of article relating to proceedings - whether article likely to prejudice course of proceedings - whether law of contempt of court consistent with right of freedom of speech in the Bill of Rights.

Held - contempt proved.

1996 MP No.2160

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. This is a motion for committal for contempt seeking the imposition of a sentence of imprisonment or a fine against the Respondents. The 1st Respondent is the editor and the 2nd Respondent is the publisher of Next Magazine.

2. The matter arises out of a libel trial which took place in September 1994. The trial was a jury trial. Whether it was the first jury trial in Hong Kong in respect of libel matters does not matter; although the Court records are not easily accessible it seems that there may have been another jury trial for libel some 20 years ago. Suffice it to say that it was unusual to have a jury trial in a libel case in Hong Kong.

3. The Plaintiff in that trial was a well known and distinguished economist. The nature of the libel against him is unnecessary to repeat here, but the libel, and libel it has certainly been held to have been, was contained in the Eastweek Magazine.

4. On Friday the 29th September 1994 which was before the end of the trial, but as it was drawing to a close, the 238th edition of the Next Magazine was published. It is a magazine in two parts. A copy of that edition of the Magazine was made an agreed exhibit. Although the circulation figures for that edition of the magazine have not been made available, it was agreed in the course of the hearing that the audit circulation per issue for the Next Magazine for the period for the 1st July 1993 to the 31st December 1993 was 152,777 copies.

5. The 238th edition of the Next Magazine contained an article about the libel trial, the material parts of which read as follows:

"Mr Cheung NG Sheong invested heavily to fight

'Eastweek'

Head of the School of Economics and Finance of the University of Hong Kong Cheung Ng Sheong sues 'East Week' for libel, the expenses are very substantial, apart from spending two million odd dollars to retain Queen's Counsel, (Martin) Lee Chu Ming, he also incurred considerable expense in inviting an overseas expert to come to Hong Kong to testify, which would cost him at least a few tens of thousand dollars.

Cheung Ng Sheong was very furious after reading the article, and decided to sue the magazine to demand compensation for loss of reputation.

He employed abundant ammunition to fight this law suit, according to estimate of people in the legal circle, given the standing of Lee Chu Ming, his fees are four hundred thousand dollars a day. This law suit is estimated to last 6 days, the bill at the end will be at least two million and four hundred thousand dollars..."

6. Then the article goes on to explain how Mr Cheung had arranged for distinguished persons, including those on the selection committee of the Nobel Economic Prize, to come to Hong Kong to give evidence on his behalf. The article ends up:

"...If he loses the law suit, would he lose the wife as well as the soldiers? Cheung Ng Sheong seems to have lots of confidence, believing that the compensation he will get will cover all the expenses."

7. The article is signed by the person who wrote it and then there is the caption for a photograph showing Mr Cheung and one of the persons he asked to come and give evidence on his behalf.

8. The existence of this article was not brought to the Court's attention. It appears to have come to Counsel's attention almost immediately. There were oblique references to the article in the speeches of Counsel on both sides when they addressed the jury in terms that they should ignore what they had read about the costs of the case.

9. The jury found that libel had been committed and rejected the defences. The jury awarded a sum of $2.4 million as damages.

10. When the matter went to the Court of Appeal the Defendants did not seek to overturn the finding of libel but challenged the amount of the jury's award. The Court of Appeal were unanimous that the award was excessive and it was set aside on that basis. One of the other grounds of appeal was that it was to be inferred "that the jury improperly took into account extraneous and irrelevant material published in Next, a rival magazine, the evening before the closing speeches were made." That was not a ground on which the Court of Appeal was prepared to allow the Appeal and indeed the Vice President, Mr Justice Nazareth said:

"There is no evidence that any of the jurors actually saw the article. Any conclusion that the jury had seen or become aware of the article and its contents can therefore be labelled as speculative as contended on behalf of the Plaintiff. In reality, however, the jury must have wondered what it was that they might have read "yesterday" and are most likely to have looked for it, having had the best part of three days to do so before giving their verdict. The coincidence is so remarkable..."

(That is the coincidence of the figure referred to in the article and the damages.)

"...that it is difficult to believe that the sum mentioned in the Next article did not have something to do with the sum they so remarkably settled upon. No other explanation, even suggestion, has been made to account for it."

11. Then a little further down Mr Justice Nazareth said:

"...Before I leave the matter the action of the publishers in publishing such an article, and at the time in question, can only be regarded in a most serious light, and I direct that a copy of this judgment and of the article be sent to the Attorney General by the Registrar."

12. On the direction of the Court of Appeal the matter was therefore referred to the Attorney General. On the 10th April 1996 the Crown Solicitor wrote to the editor of the Next Magazine enclosing a copy of the Court of Appeal Judgment indicating that the Attorney General had accepted advice that the article was a serious contempt and inviting observations and submissions prior to a decision being taken as to whether to bring contempt proceedings. The letter asked for confirmation that the photocopy of the article was a true copy and for information as to the editor of the magazine. A reply came on the 9th May. That confirmed that the 1st Respondent had since the 1st May 1993 been the editor of the Next Magazine. The letter also confirmed that the article, which I have quoted from above, was published in the 238th edition of Next which had been published on the 29th September 1994. The letter went on:

"We wish to put forward the following observations which we feel the Attorney General should take into account before deciding whether to initiate proceedings under the RSC Order 52 or not:

1. The article was published on page 52 of Issue No. 238 in the column (meaning 'Short Gossips of Current Affairs'), which was a gossip column for current public affairs and public interests. It was published without any catching headline and it was tucked away in the middle of the said column.

2. Next Magazine is a weekly magazine and it covers public affairs. It also publishes stories of public interest. Mr Cheung is not only a famous academic and popular author, he was and is a free-lance columnist of Next Magazine. In September 1994, the legal proceedings between Mr Cheung and Eastweek was in the news and was of public interests. Eastweek was a close imitation of Next Magazine (in that both the format and topic coverage of Eastweek were very similar to that of Next Magazine) but Eastweek has never been or posed a threat to the circulation of Next Magazine. Therefore it is wrong to allege that Eastweek was a rival of Next Magazine.

3. When the article was written, the editor had no knowledge that three or four days later the jury in the captioned case was to deliberate on the quantum of damages. Since the article only mentioned legal fees of senior counsel for Mr Cheung, it could not have been in anyone's anticipation that the gossip could have any effect on the jury or on the case. After all, Mr Martin Lee Q.C., as one of the most popular politicians in Hong Kong, his professional charges had been reported in the press on other occasions before. The article did not in any way attempt to influence the outcome of the trial in the captioned case. It carried no bias towards any party in the case. Nor did the article try to cause any prejudice to any party to the said proceedings."

13. The letter then goes on to refer to the fact that the Vice President had said that there was no evidence that the jurors had actually seen the article, and it then goes on to deal with questions of the accuracy of the article and the logicality of the calculations contained in it. It then continues with paragraph 5:

"5. The article did not contain any material which was prejudicial or which could amount to unauthorised disclosure of confidential information which might affect the outcome of the trial. To say that this article had been read and had affected the award of damages to Mr Cheung is too far-fetched and speculative. Indeed, a fair reading of the article can safely lead to the conclusion that it does not say or do anything which may be considered detrimental or injurious to the interest of any party to the proceedings in the captioned case.

In the circumstances, despite the bad timing in the publication of the article, we submit that it is not appropriate for the Attorney General to initiate committal proceedings for contempt of Court against the Magazine and/or its editor."

14. These proceedings for contempt were commenced thereafter and had to be adjourned initially in order for evidence to be filed (as it transpired none was) and later to accommodate dates convenient to the parties. The grounds of alleged contempt are set out in the Statement pursuant to RSC Order 52 r 2(2) which I allowed to be amended at the commencement of the hearing. Paragraph 6 reads as follows:

"The grounds upon which relief is sought are that the proposed Respondents were each severally guilty of contempt of court in publishing the article, which prejudiced or tended to prejudice the due administration of justice in the trial of proceedings before the Honourable Mr Justice Rogers, sitting with a jury, in High Court Action No. 1824 of 1993, between Cheung Ng Sheong, Steven and Eastweek Publisher Ltd. and Ip Yut Kin, in that the said publication:

(1) caused the jury to take into account an improper and impermissible consideration in assessing damages, namely that the Plaintiff's costs bill for the trial would be at least $2,400,000;

(2) gave rise to a serious or real risk that the jury would be prejudiced by taking into account an improper and impermissible consideration in assessing damages, namely that the Plaintiff's costs bill for the trial would be at least $2,400,000; and

(3) caused or was likely to cause a miscarriage of justice in the process of the said trial."

The jurisdiction in respect of contempt

15. The jurisdiction in respect of contempt is, as was pointed out by Sir I.H. Jacob in an article appearing in Current Legal Problems back in 1970, part of the inherent jurisdiction of the Court. In that article he pointed out that:

"The jurisdiction to exercise these powers is derived, not from any statute or rule of law, but from the very nature of the court as a superior court of law, and for this reason such jurisdiction has been called 'inherent.' For the essential character of a superior court of law necessarily involves that it should be invested with a power to maintain its authority and to prevent its process being obstructed and abused. Such a power is intrinsic in a superior court; it is its very essence. Without such a power, the court would have form but would lack substance. The jurisdiction which is inherent in a superior court of law is that which enables it to fulfil its function as a court of law.

As Lord Morris said in Connelly v D.P.P. [1964] Appeal Cases at page 1301:

'There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process.' The juridical basis of this jurisdiction is therefore the authority of the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner."

16. Contempt in the present context may be broadly defined as the wrongful interference with the administration of justice. It is limited to what is necessary for the administration of justice and no more. In England the matter is now covered by the Contempt of Court Act, but in Hong Kong the Common Law still applies. Wrongful interference can take many forms. One of the common forms is the making of comments about current cases. Often this happens in newspapers in making statements and observations about current cases. As Lord Diplock said in the case of the Attorney General v The Times Newspapers [1974] AC 273 at page 309:

"The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court."

17. It is of course the second aspect of Lord Diplock's reference which is relevant in this case.

18. Lawyers are trained to disregard facts which are not relevant or inadmissible. Often Judges are told of facts which then have to be ignored for the purposes of the proceedings before them. The exclusion of those facts from their consideration in the decision making process is one of the functions which they must accomplish and have been trained to do so. In large part whether such facts have been excluded can be tested by the reasons which accompany Judges' decisions. That is not so with regard to laymen. As was commented on by both Reid and Lord Diplock immediately following the passage which I have cited, laymen and in particular jurors have to be recognised as vulnerable to influences and pressures which impair their impartiality or cause them to form preconceived views. Obviously juries will be told to disregard anything they have heard about a case outside the Court. But a juror, as anybody else, is susceptible to prejudice in the context of not legally probative facts which influence his or her mind.

Freedom of Speech and the Bill of Rights

19. As I have indicated however, the law of contempt is restricted to what is necessary for the attainment of justice. Inherent in the law of contempt is a restriction on the right of freedom of speech. That freedom is a cardinal freedom. It is one which the law is there to uphold. The importance of the freedom of speech cannot be understimated. Nevertheless the right of freedom of speech and the due administration of law have synergistic qualities because without one the other cannot truly exist.

20. In the context of the freedom of speech the question was raised as to what application the Bill of Rights had to the law of contempt. However, when the true basis of the law of contempt is appreciated as I see it and have tried to explain it above, that question becomes entirely unnecessary. The Court is there to apply the law. It must therefore regulate its own affairs according to the law. That law includes the Bill of Rights.

21. A great deal of time during the hearing was taken up with considerations of how the Bill of Rights applied to the law of contempt and what affect the Bill of Rights had had on the pre-existing common law relating to contempt. Since it seemed to me that Mr Bradley who appeared on behalf of the Attorney General and Mr Kwok Q.C. who appeared on behalf of the Respondents both sought to apply the same formula, the exercise was probably for the most part academic.

22. The formulation appearing in Mr Bradley's skeleton argument was that there should be shown to be a 'serious risk of there being a real and substantial danger of prejudice'. Mr Kwok in the course of argument agreed that that was the correct test, although he sought to argue that the interpretation which should be put on that test was stricter than that put on it by the Attorney General. To my mind these are matters of semantics. Any difficulty arises from an excessive use of adjectives.

23. It is strictly unnecessary therefore to examine the arguments in relation to how the Bill of Rights operates in this context. Nevertheless I will do so. Article 16(2) of the Bill of Rights provides that:

"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..."

24. Article 16(3) goes on:

"...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."

25. 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."

26. 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.

27. 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 in interpreting Article 10 of the European Convention on Human Rights in the case of The Sunday Times v The United Kingdom (1979) 2 E.H.R.R. 245 at 271 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 to - 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."

28. One of the exceptions provided in Article 16(3) is for the respects of rights of others.

29. 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."

30. Finally, the Privy Council in the case of Ming Pao Newspapers Limited 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.

The article complained of

31. It was sought to be argued that the intent behind the publication of the article was the prejudice of the jury. I indicated that although it was perhaps possible to draw the inference from the evidence that there was such an intent this was not an inference that I was prepared to draw. To attribute a base motive is a serious matter. Such a step cannot be taken lightly. I have to say, however, that had there been such an intention shown then a custodial sentence might be inevitable in a contempt of this nature.

32. The next matter which can be disposed of shortly is whether the Ground 6(1) has been proved, namely whether it has been shown that the jury did take into account the matters in the article. There is grave suspicion, as the Court of Appeal has pointed out, that that might have happened, indeed the suspicion is that it did happen. However, for obvious reasons it is impossible to know for sure whether it did happen. Again in a case of this nature I am not prepared to draw the inference that it did.

33. The question then turns on what was the likely effect of the publication of this article on the 29th September 1994 when the article was published. The question is; was it something that was likely to pose a real risk that the due administration of justice would be impaired in an important respect? In this instance, did it pose a real risk that the jury would take into account extraneous matters not part of the evidence in coming to its conclusion? The answer in my view must be yes.

34. The article was published on the 29th September. The trial was coming towards a close. What the article says is that the Plaintiff has put a great deal of money into the action, it questions whether he will be losing his costs as well as his reputation. The article says that he is confident. One of the crucial issues that the jury had to decide was the measure of damages. The Court cannot give the jury figures as to damages which could be awarded, although in the Court of Appeal it has been suggested that the Common Law in Hong Kong might develop in that respect. What the jury has to decide is the correct amount to compensate the successful Plaintiff for the loss of his reputation. It is not out of the way for the jury to think in terms that if a man thinks it is worth spending $2.4 million to repair his injured reputation then that might not be a bad starting point to assess an appropriate compensation.

35. It is said on behalf of the Respondents that the article was by no means prominent. It was tucked away on page 52 of the magazine. One has to bear in mind the admitted circulation. Such a circulation of a magazine which the Respondents describe as a public affairs magazine must be such as to bring about an imminent danger that persons in 1994 likely to have been selected as jurors would very possibly either buy the magazine themselves or have it in their household.

36. The proximity of the publication of this edition of the magazine to the time when the jury was to give its verdict is another matter which is of considerable importance. Even a juror who does not read the magazine is likely to have the contents of an article which relates to a case in which the juror is involved brought to his attention by a friend or relative who is aware of his current position as a juror in that case. The risk of this article coming to the attention of one or more of the seven jurors given the circulation of the magazine was in my view high. This is without taking into consideration matters such as the possibility that the jurors might have positively sought out the magazine to which Counsel had obliquely referred. In the past juries have taken into account questions of costs, although it is not their business. Cases in the last century cited by Mr Bradley show this.

37. Of course the law of contempt does not seek to gag discussion of legal fees. But this article was not directed to a general discussion of the level of legal fees; it was an article directed to the amount which the Plaintiff had laid out in the libel case to regain his reputation. The calculations in the article were clearly erroneous, they do not take into account questions of brief fees as opposed to refreshers. I have no doubt that the fees attributed to Counsel have no bearing on reality. Whether the overall figure given in the article has some relation to the overall figure that the Plaintiff had to pay his lawyers for handling the case, I have to say that I know not. A jury might well believe that the overall figure is not far off the mark.

38. As I have already mentioned, the vulnerability of juries to extraneous considerations cannot be overlooked. In this respect it must be borne in mind that there would have been nothing objectionable in the article had it been published after the jury's verdict. A question of timing was referred to by Lord Diplock in the case of Attorney General v Leveller Magazine [1979] AC 440 at 450 where he said:

"Apart from statutory exceptions, however, where a court in the exercise of its inherent power to control the conduct of proceedings before it departs in any way from the general rule, the departure is justified to the extent and to no more than the extent that the court reasonably believes it to be necessary in order to serve the ends of justice. A familiar instance of this is provided by the 'trial within a trial' as to the admissibility of a confession in a criminal prosecution. The due administration of justice requires that the jury should be unaware of what was the evidence adduced at the 'trial within a trial' until after they have reached their verdict; but no greater derogation from the general rule as to the public nature of all proceedings at a criminal trial is justified than is necessary to ensure this. So far as proceedings in the courtroom are concerned the trial within a trial is held in open court in the presence of the press and public but in the absence of the jury. So far as publishing those proceedings outside the court is concerned any report of them which might come to the knowledge of the jury must be withheld until after they have reached their verdict; but it may be published after that. Only premature publication would constitute contempt of court."

39. Even the Respondents' solicitors in their letter of the 9th May referred to the timing of the publication of the article as being bad. In the circumstances I find the contempt proved.