SECRETARY OF JUSTICE v. LI PANG KAY AND ANOTHER

HCMP 1851/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1851 OF 2013

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AND

HCMP 1852/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1852 OF 2013

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(Heard Together)

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DECISION
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A. INTRODUCTION

1. These are contempt proceedings respectively against Mr Li and Sharp Daily Ltd (under HCMP 1851/2013) and Mr Cheung and Apple Daily Ltd (under HCMP 1852/2013). The contempt committed is in relation to the publication on 20 March 2013 of (a) an article respectively on the newspaper Apple Daily and Sharp Daily of an interview of a Mr Chau who was arrested and charged for double homicide; and (b) a video clip on the related newspaper websites of the interview. The interview was conducted while Mr Chau was in jail custody at the Siu Lam Psychiatric Centre (“SLPC”). The article and the video clip were published when the anticipated criminal trial of MrChau was still pending.

2. At that time, Mr Cheung and Mr Li were the editors respectively of Apple Daily and Sharp Daily. Apple Daily Ltd and Sharp Daily Ltd are respectively the proprietors and publishers of Apple Daily and Sharp Daily.

3. After ex parte leave to commence these contempt proceedings was granted on 31 July 2013 by Poon J, Mr Cheung and MrLi (both for themselves and on behalf of the corporate defendants) respectively filed an affirmation on 4 October 2013 under the respective proceedings. In these affirmations, Mr Cheung and Mr Li both admitted liability for contempt and made an apology to the court about the contempt. They also set out various matters apparently for the purpose of mitigation.

4. The substantive hearing of the contempt proceedings are now fixed for 16 and 17 September 2015.[1] Given the defendants’ accepted liability for contempt, the only issue left for determination at that hearing is sentence.

5. Before me are now the plaintiff’s applications made under both proceedings[2] to cross-examine Mr Cheung and Mr Li in relation to certain matters they have deposed to in their affirmations.

6. These applications are opposed by the defendants.

B. THE PRESENT APPLICATIONS

B1. The intended questions of cross-examination

7. The relevant parts of the affirmations that the plaintiff wants to cross-examine the deponents are paragraphs 12.2 and 13 of MrCheung’s affirmation, and paragraph 9.2 of Mr Li’s affirmation. For completeness, I would quote the relevant full paragraphs as follows:

(1) For Mr Cheung’s affirmation:

“12. The Plaintiff’s application arises from the 1^st and 2^nd Defendants’ reporting of a double homicide case. The events leading to the relevant publication are, in sum, as follows:

12.1. On or about 13^th March 2013, a Mr. Henry Chau (“Mr. Chau”) and his elder brother approached the 2^nd Defendant in order to seek its assistance to locate their missing parents.

12.2. On about the night of 14^th March 2013 or at the early hours of 15^th March 2013, it came to the attention of the 1^st and 2^nd Defendant [sic] that Mr. Chau had made known to a chat-group through a smartphone application “WhatsApp” that he was then present at the Police Headquarters for the purpose of giving a witness statement stating inter alia that he had murdered his parents.

12.3. On 15 March 2013 Mr. Chau and a Mr. Tse Chun Kei (“Mr. Tse”) were arrested for the murder of the deceased, Mr. Chau’s parents. They were detained for further police investigation and were subsequently charged with two counts of murder on 17 March 2013. The two accused appeared before the Kowloon City Magistracy on 18^th March 2013.

12.4 The arrest and charging of Mr. Chau and Mr. Tse in the double homicide case attracted overwhelming media attention and was widely reported by different newspaper publications in Hong Kong.

13. The extensive media reporting of the double homicide case was expected, given the surprising turn of events in this highly unusual case. The public had seen how Mr. Chau, who had initially approached the 2^nd Defendant seeking assistance on his missing parents, was now charged with the murder of his parents. A collective decision was therefore made amongst the Newspaper’s editorial staff to instruct our reporters to find out what had happened, and to follow up on the events that had occurred since Mr. Chau had approached us on 13 March 2013.” (emphasis added)

(2) For Mr Li’s affirmation:

“9. The Plaintiff’s application arises from the 1^st and 2^nd Defendants’ reporting of a double homicide case. The events leading to the relevant publication are, in sum, as follows: -

9.1 On or about 13^th March 2013, a Mr. Henry Chau (“Mr. Chau”) and his elder brother approached the Apple Daily Newspaper in order to seek its assistance to locate their missing parents.

9.2 On about the night of 14^th March 2013 or at the early hours of 15^th March 2013, it came to our attention that Mr. Chau had made known to a chat-group through a smartphone application “WhatsApp” that he was then present at the Police Headquarters for the purpose of giving a witness statement stating inter alia that he had murdered his parents.

9.3. On or about 15 March 2013, Mr. Chau and a Mr. Tse Chun Ki (“Mr. Tse”) were arrested for the murder of Mr. Chau’s parents. They were detained for further police investigation and were subsequently charged with two counts of murder on or about 17 March 2013. The two accused appeared before the Kowloon City Magistracy on or about 18^th March 2013.

9.4. The arrest and charging of Mr. Chau and Mr. Tse in the double homicide case attracted overwhelming media attention and was widely reported by different newspaper publications in Hong Kong.” (emphasis added)

8. These are matters said to be related to the “circumstances leading up to the said publication” of the articles.

9. The questions that the plaintiff intends to ask Mr Cheung and Mr Li by way of cross-examination are similar.[3]

10. In relation to Mr Cheung, they are as follows:

(1) Who informed or alerted Mr Cheung and Apple – and by what means – of the fact that Mr Chau had made known to a “WhatsApp” chat-group that (a) he was at the Police Headquarters for the purpose of giving a witness statement and (b) he had murdered his parents?

(2) Please identify the persons involved in the collective decision described in paragraph 13 of Cheung’s Affirmation?

(3) What were the exact instructions (referred to in paragraph 13 of Cheung’s Affirmation) given by the Newspaper’s editorial staff to the reporters?

(4) Who gave the said instructions?

(5) Who were the said instructions given to (ie, please identify the reporters mentioned in paragraph 13 of Cheung’s Affirmation)?

(6) Whether the said instructions were carried out and who carried out those instructions?

(7) How and by whom were the information published in the offending articles obtained?

(8) Please identify the author(s) of the offending articles?

(9) Whether or not the articles had been considered by MrCheung before publication?

11. In relation to Mr Li, they are as follows:

(1) Who informed or alerted Mr Li and Sharp – and by what means – of the fact that Mr Chau had made known to a “Whatsapp” chat-group that (a) he was at the Police Headquarters for the purpose of giving a witness statement and (b) he had murdered his parents?

(2) How and by whom were the information published in the offending articles obtained?

(3) Please identify the author(s) of the offending article?

(4) Whether or not the article had been considered by Mr Li before publication?

B2. The parties’ primary position

12. It is fairly not disputed by Mr Pun SC (for the defendants) that the court does have the case management discretion to grant leave to cross-examine defendants or witnesses in a contempt proceeding on the evidence they seek to rely on. The governing principles in the exercise of that discretion have been set out in Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67 and Re B (Contempt: Evidence) [1996] 1 WLR 627. They can be summarised (as helpfully set out in the plaintiff’s skeleton) as follows:

(1) A respondent to an application for committal is a competent but not compellable witness. Comet at 74E-F, 77D; Re B at 638A, 639C. Hence, Order 52, rule 6(4) provides that: “If on the hearing of the application the person sought to be committed expresses a wish to give oral evidence on his own behalf, he shall be entitled to do so.”

(2) The court, in exercising the power to regulate its own procedure, is entitled to require a respondent to swear affidavits or produce statements of witnesses of fact on which they may wish to rely and to file and serve the same in convenient time before the hearing to permit proper preparation of evidence in reply. Re B at 629D-E, 637H-638D, 638G, 639C.

(3) The applicant cannot make use of the respondent’s evidence until the same is deployed by the respondent (by reading or relying upon the same). A respondent who complies with the court’s direction to file evidence is not in peril of cross-examination until such time as he deploys the evidence in his own case. Re B at 629E-F, 635B-H, 638D-G.

(4) Nevertheless, a respondent who has sworn and filed an affidavit cannot withdraw it. One consequence of this is that the applicant is entitled to make such use of the statements in it as admissions helping his case against the respondent. Comet at 74F-G, 77D.

(5) Where a respondent to an application for committal chooses to file and rely upon affidavit evidence, he can be cross-examined in the normal way. It would only be in a very exceptional case that a judge ought to refuse an application to cross-examine a deponent on his affidavit. Comet at 75G, 76G, 77F; Re B at 638B-C.

13. Although not disputing these principles, the primary ground of opposition taken by Mr Pun is that the intended cross-examination questions are simply irrelevant to the issue of sentence. Mr Pun also submits that the plaintiff’s application should be refused on the basis that the applications are oppressive in light of the trite principle that the “prosecution” should not influence the court in regard of sentence by advocacy and/or that they are no more than a fishing exercise which interferes with the freedom of press as the questions in effect seek to identify journalistic sources and the internal workings of the newspaper organisations.

14. It is accepted by Mr Jat SC (together with Mr Anthony Chan) for the plaintiff that, as a starting point, the court must be satisfied that the questions sought to be asked in cross-examination, and thus the evidence coming out from it, are relevant to the issue of sentence, which is the only material issue at the forthcoming hearing. And for that issue, the relevance is as to whether the evidence to be extracted relates to the culpability of the contemptuous acts committed by the defendants.

15. Notwithstanding the way in which the above questions were drafted, Mr Jat confirms at the hearing that the plaintiff is not seeking to elicit any information in relation to journalistic sources or the inner workings of the newspapers. Moreover, the plaintiff is also not seeking by way of these questions to identify any further persons potentially liable for contempt.

16. Accepting that those questions could have been better framed, leading counsel says these questions in fact are intended to elicit evidence as to the manner in which the contemptuous acts were committed, which is relevant to showing the gravity or culpability of the “offence” vis-a-vis the defendants. The said evidence relates to:

(1) Whether the editors had considered the reliability of the source of information relating to the WhatsApp messages before relying on it to instruct the reporters embarking onto the task of interviewing Mr Chau. This Mr Jat says would show whether the editors and the newspapers had acted in a “cavalier” manner in committing the contempt, which would add to the gravity of the conducts (this relates to MrCheung’s and Mr Li’s question (1)).

(2) Whether there was any dissenting or cautioning opinion raised in the “collective” decision to proceed with the interview and publish the article, which would show whether the editors made that decision in spite of being cautioned against the risk of committing contempt. If so, again (says Mr Jat) that would show that the editors and newspapers are more culpable in committing the contempt than the situation where no such cautioning reminders had been positively raised (this relates to Mr Cheung’s question (2)).

(3) Whether it was the specific instruction of the editors that had caused the reporters to go to SLPC where Mr Chau was kept in custody as his purported friends to interview him. If so, it would show that the editors intentionally and positively instructed or caused the reporters to act in the way they did, which may render the editors’ contempt a more culpable one than a case where the editors and the newspapers are held to be responsible for the reporters’ acts simply as a matter of principle (this relates to Mr Cheung’s questions (3) and (6)).

(4) Whether the article in its final form as published is a product solely of the reporters’ reporting, or whether it is a product of say “creative” writing contributed by other editorial staff, including the editors, based on the interview records. If it is the latter, it is also relevant to sentence since it would be (says Mr Jat) a more grave conduct to publish a contemptuous article the contents of which is a result of the defendants’ own “creation” (this relates to Mr Cheung’s questions (7)-(8) and Mr Li’s questions (2)-(3)).

(5) Whether the editors had in fact seen and approved the article before its publication, which is a factor that goes to the question of whether they are more culpable in allowing such article to be published than a case when they did it without in fact seeing them in the first place (this relates to MrCheung’s question (9) and Mr Li’s question (4)).

17. Mr Jat further submits that all this evidence relates to or arises from the defendants’ own evidence (which they wish to rely on in mitigation) as set out in those relevant paragraphs of the affirmations. The scope of the intended cross-examination therefore falls within the principles laid down in Re B, where the court in the exercise of its case management power can allow.

B3. Court’s view

18. With respect to Mr Jat, notwithstanding his very persuasive submissions, I am not convinced that I should exercise my discretion in the present case to allow those cross-examinations. My reasons are as follows.

19. First, in relation to the evidence concerning the reliability of the source of information about the WhatsApp messages, this must be considered in the the present context that it is not suggested that what was contained in the WhatsApp messages is inaccurate and also what was reported in the article as to what was said by Mr Chau in the interview is inaccurate. As such, I do not regard this evidence relevant to the culpability of the defendants in the present circumstances. For example, even if the defendants had not done anything to check the reliability of the source of this information, given that there is no complaint that the information was in fact false or inaccurate and which had then led to any further conducts rendering the subject contemptuous acts (ie, the publication of the articles and video clip) more offensive or unacceptable, I am unable to see how the failure to check the reliability of this source in this case could be regarded by the court as a material aggravating factor in considering sentence.

20. Second, all the rest of the suggested evidence that could be obtained through the proposed cross-examination as set out in paragraph 16 (2) to (5) above is by its nature seeking to show that the editors are more culpable in committing the contempt because they had actively and intentionally caused the way in which the materials for the article were obtained by the reporters, created or contributed to the content of the article in its final form, approved the publication of it in that final form, and made the decision to write up the article and publish it notwithstanding any dissenting or cautioning reminders. I agree that in principle, there could be a higher degree of culpability of the editors in those circumstances (if the evidence so supports) than the situation where the editors are “passively” held to be responsible for the article as written and published in its final form solely because they are the ultimate responsible officers in the hierarchy.

21. However, I am not persuaded that in the present context, I should exercise my discretion to require the editors to be cross-examined on these matters. This is so because, as far as I understand it from the editors’ affirmations and from the submissions put forward by the defendants in these applications, it is not the defendant’s case of mitigation that there should be a more lenient sentence because (a) they had in fact checked the reliability of the source of information; (b) they had not specifically instructed or caused the reporters to do what they did in securing the interview; (c) they were not involved in the writing up of the articles; (d) they had not read them before publication; and/or (e) it was a unanimous collective decision. In such circumstance, and in light of the trite position (as submitted by Mr Pun) that the prosecution is not to influence the sentence by advocacy or say anything that could be taken as advocating severity,[4] I do not think it is right to exercise my discretion to give leave for cross-examination to effectively require the defendants to come forward and give further and positive evidence to establish these potential aggravating factors when their mitigation does not materially rely on those aspects of the evidence.

22. In this respect, it is accepted by Mr Pun that, for the purpose of sentence, the editors as the ultimate responsible office-holders are in any event responsible for the conducts of the reporters, the final content of the article and the decision to publish it. Coupled with the observations set out in paragraph 21 above, I think it is a fortiori that I should not exercise my discretion to allow cross-examination on those proposed matters in the circumstances of the present case.

23. Finally, given Mr Jat’s clarifications as recorded at paragraph 15 above, there is no question that these applications represent a fishing exercise and an attempt to interfere press freedom. I therefore do not find it necessary to deal with this ground of objection.

24. For these reasons, I do not think enough has been shown to justify the court to grant leave to the plaintiff to cross-examine MrCheung and Mr Li in the forthcoming hearing in September.

25. I would however put two caveats here.

26. First, my conclusion in this decision is premised to a large extent on the court’s understanding of the defendants’ mitigation position as observed at paragraph 21 above. The court will be prepared to revisit this question of cross-examination if the defendants run their mitigation at the September substantive hearing differently from that understanding.

27. Second, I wish to make it clear that this decision should not be read as suggesting that in all circumstances the type of evidence outlined by Mr Jat above cannot be regarded as relevant or that no cross-examination on those types of question could be allowed. My conclusion above, as I have emphasised, is only limited to the particular circumstances of this case.

C. CONCLUSION

28. I will refuse the plaintiff’s applications and dismiss the summonses.

D. COSTS

29. Although the plaintiff is unsuccessful in these applications, I fully note Mr Jat’s submissions that the plaintiff in making the applications is only seeking to bring to the court’s attention as early as practicable to these potential matters which the plaintiff thinks may well be relevant to the questions of sentence. These applications are taken out to avoid any arguments or contentions at the substantive hearing that these matters should have been raised earlier. These applications are therefore made consistent with the observations in Re B at 638C-Gand with the objective to assist the court in properly case-managing these proceedings. The plaintiff should not be penalised in costs even if he fails in the application.

30. I accept Mr Jat’s submissions. In particular, although I refuse the application, I do not think it was unreasonable for the plaintiff to regard it as at least arguable that the suggested evidence he sought to bring out through cross-examination might well be relevant to the question of sentence and thus feel necessary to bring the matter to the attention of this court as early as practicable to enable the parties to properly prepare for the substantive hearing and to avoid any unnecessary adjournments, see: Re B at 638C-G. Moreover, the applications would also obviate the possibility that, at the substantive hearing, the court of its own motion may come to the view that this type of evidence is relevant to sentence in light of the defendants’ affirmations. It is therefore right for the plaintiff to bring these matters to the court’s attention by way of these applications to clarify the position.

31. I would therefore make an order nisi that there should be no order as to costs of these applications. This order shall become absolute 14 days from today unless any of the parties applies to vary it.

32. Lastly, I wish to thank counsel for their assistance in this matter.