R. v. GEORGE TAN AND OTHERS

                Magistrates - Preliminary Inquiry - Supervisory jurisdiction of High Court - Whether an order admitting the public but excluding the press showed an error on the face of the record - Whether such an order was one which no magistrate, properly directing himself, could have made - section 80 of Magistrates Ordinance (Cap. 227) construed.

                On a preliminary inquiry in which reporting restrictions were not lifted a magistrate purported to make an order, pursuant to the discretion given him by section 80 of the Magistrates Ordinance, opening the proceedings to the public but barring the press. A number of newspaper and magazine proprietors and publishers and a journalists' association applied for, inter alia, an order of certiorari to quash the orders.

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JUDGMENT

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Kempster, J.A.:

1. Monday, the 24th of September last, was the Return Day for committal proceedings against Mr. George Tan and Others which had formally been commenced on 22nd May. The magistrate, Mr. Suttill, took his seat in an adjacent court in this building. The circumstances giving rise to the proceedings have been and remain the subject of public concern and interest within and beyond the confines of Hong Kong. No application has, at any stage, been made pursuant to section 87A(a) of the Magistrates Ordinance for reporting restrictions to be lifted. Without objection from if not with the consent of the parties it was ordered that the inquiry should be held in camera.

2. The hearing was adjourned to 1st October when the magistrate was pursuaded to reconsider this matter. He then declared the court open but barred such members of the public as were journalists working for newspapers, magazines, radio or television. A notice to this effect in the English and Chinese languages is fixed to the doors of his court. On 4th October he declined to vary his order so as to permit the attendence of journalists. At no time, it should be remarked, were the respective attitudes of the Crown, or of the defendants, as sharply defined as they have been here. Nor were the submissions made on his behalf by Mr. Ognall as representing the public interest entirely consistent with those made by the Attorney General himself in this court. Now, by leave of Barnes, J., certain magazine and newspaper proprietors and publishers and the Hong Kong Journalists Association and its officers seek to have the order of 1st October quashed. Their standing and interest in the matter is not challenged. The applications do not amount to an invitation to this court to control the manner in which part-heard committal proceedings are to be conducted as by, for example, the reception or rejection of evidence.

3. It is a tradition in Common Law Jurisdictions for examining justices to sit in open court and publicity remains the authentic hallmark of judicial as compared with administrative procedures. Speaking in general terms in Scott v. Scott ⁽¹⁾ between pages 473 and 440, the Lord Chancellor Lord Halsbury said:

 

"It may often be necessary, in order to attain its primary object, that the Court should exclude the public. - As the paramount object must always be to do justice, the general rule as to publicity after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. - Every Court of justice is open to every subject of the King."

 

In the same case, at page 477, Lord Shaw quoted Jeremy Bentham:

 

"In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial. The security of securities is publicity."

4. Lord Diplock's speech in Attorney General v. Leveller Magazine ⁽²⁾ at p. 449 was to similar effect:

 

"As a general rule, the English system of administering justice does require that it be done in public - if the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should held. in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is. communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to disccurage this."

And in R. v. Horsham JJ. ⁽³⁾ at. p. 793, Lord Denning M.R. said:

 

"It is of the first importance that justice should be done openly in public: that anyone who wishes should be entitled to come into court and hear and see what takes place; and that any newspaper should be entitled to publish a fair and accurate report of the proceedings without fear of a liebl action or proceedings for contempt of court. Even though the report may be most damaging to the reputation of individuals, even though it may expose wrongdoing in high places, even though it may be embarrassing to the most powerful in the land, even though it may be political dynamite, nevertheless it can be published freely - so long as it is part of a fair and accurate report. The only case in which it will be punishable as a contempt of court is when the court makes an order postponing publication in the legitimate exercise of its power in that behalf."

 

Finally, Lord Scarman in Home Office v. Harman ⁽⁴⁾ at p. 316:

 

"To sum up this part of the argument, the common law, by its recognition of the principle of open justice, endures that the public administration of justice will be subject to public scrutiny. Such scrutiny serves no purpose unless it is accompanied by the rights of free speech, i.e. the right publicly to report, to discuss, to comment, to criticise, to impart and to receive ideas and information on the matters subjected to scrutiny. Justice is done in public so that it may be discussed and criticised in public."

Publicity for the proceedings of the courts indeed leads or should lead both to high standards of conduct on the Bench and, as a result, to meticulous care in relation to judicial appointments and to the appropriate action when demanding standards are not met. Publicity is inimical to the spread of rumour.

5. The confident pronouncements of Lord Halsbury in Scott v. Scott⁽¹⁾ have suffered considerable statutory erosion and judicial refinement over the years. For example, section 4(2) of the Magistrates Courts Act 1980 provides that:

 

"Examining justices shall sit in open court except where any enactment contains an express provision to the contrary and except where it appears to them as respects the whole or any part of committal proceedings that the ends of justice would not be served by their sitting in open court."

The provisions of section 8 impose restrictions on the reporting of such proceedings.

6. Section 80 of our Magistrates Ordinance is couched in somewhat different terms:

"The room or building in which a magistrate conducts a preliminary inquiry shall not be deemed an open court for that purpose; and it shall be lawful for the magistrate, in his discretion, to order that no person shall have access to or be or remain in such room or building without the consent or permission of the magistrate if it appears to him that the ends of justice will be best answered by so doing."

The reasoning behind this scmewhat delphic wording is obscure and, especially when contrasted with the wording of section 11, could at first blush be construed to mean that a preliminary inquiry should be held in camera. Indeed, a number of magistrates have, I am told, acted on that understanding. If that were the right approach, however, the provisions of section 87A of the Ordinance, which are calculated to keep the public informed of the bare bones of committal proceedings, would be rendered academic in the majority of cases. Section 87A provides, subject to any application to lift reporting restrictions and until either there has been a determination not to commit or the substantive trial has concluded, as the case may be, that:

 

"No person shall publish in the Colony a written report, or broadcast in the Colony a report, of any committal proceedings in the Colony - other than - a report of -

These provisions like such unwritten requirements as those precluding the contemporaneous reporting of what has transpired. on a voir dire should be known to all professional journalists. The material exhibited to affidavits sworn in these applications does not suggest otherwise. Such material does suggest a willingness to risk or to expose distributors to the risk of proceedings based on contempt of court and libel; a willingness which is not unknown in other jurisdictions.

7. The correct view of the intention of the legislature in relation to section 80 is, I conclude, as stated in the judgment of Lord Esher M.R. in Kimber v. The Press Association ⁽⁵⁾ at p. 70, when dealing with the similarly worded section 19 of the Indictable Offences Act 1848:

 

"The only meaning of the section is that the Court is not to be deemed to be an open Court if the justices exercise their discretion by ordering it to be closed to the public; but, if it is not so closed by the order of the justices, then it is an open Court."

Section 12 of that statute was in similar terms to section 11 of the Magistrates Court Ordinance.

8. Section 80 is calculated to demonstrate that the power of the magistrate to confine the number of persons attending a preliminary inquiry to those who can reasonably be accommodated in his court; to exclude the unruly; on occasion, blackmail charges for example, to protect the anonymity of Crown witnesses and to sit in camera when the security of the territory might otherwise be impaired is not open to question.

9. The terms of the order of 1st October 1984 were less than precise and have been described as self-contradictory. The order reads:

 

"That the courtroom is an open court but press, radio and television reporters are not admitted."

Oral reports, written reports by free-lance authors and the private receipt of material published overseas is in no way inhibited. The lack of clarity and opportunity for evasion involved is most undesirable in a situation where contempt proceedings could result. That is why, in my opinion, the suggestion of undertakings to be given by the press is wholly unrealistic. Nonetheless, the order would appear to date effectively to have precluded the limited and delayed reporting of the committal proceedings permitted within this jurisdiction by section 87A of the Magistrates Ordinance.

10. While members of the public, other than currently., employed journalists, have been able to attend the inquiry if they have had the time and the inclination, only the presence of journalists effectively renders proceedings, open. As Lord Widgery, C. J. explained in R. v. Denbigh JJ. ⁽⁶⁾ at p. 1056:

"Today as everybody knows the great body of the British public get their news of how justice is administered through the press or other mass media and the presence or absence of the press is a vital factor in deciding whether a particular hearing was or was not in open court. I find it difficult to imagine a case which can be said to be held publicly if the press have been actively excluded."

What Lord Widgery said in that case applies equally to the Hong Kong public and to judicial proceedings in any part of the world. The public is present at such proceedings vicariously through the reports published in the press or over radio and television frequencies.

11. This court has been told that the magistrate was moved to exclude the journalists because of his praiseworthy concern to ensure that if any of the accused was committed for trial, and for trial by judge and jury, potential jurors, by definition conversant with English, should not have formed prior views as to guilt or innocence as a result of reading English language publications imported into Hong Kong from overseas; a risk or mischief which would not arise in relation to more mundane inquiries. Indeed that risk may be higher in the particular circumstances of Hong Kong than, say, in England. It has rightly been contended that reports of preliminary inquiries are more likely to be confined to the prosecution case than reports of a trial. That likelihood is reflected in our legislation.

12. In the circumstances which I have sought to outline, two considerations of public policy fell to be considered by the magistrate. On the one hand the provision of a jury free of bias or prejudice and, on the other, the interest of the public in the manner and quality of the administration of justice.

13. If a newspaper or magazine which infringes the provisions of section 87A is imported into Hong Kong the publisher may not be amenable to our jurisdiction. But his distributors here will be and no substantial prejudice can be occasioned without effective distribution. Beyond question the Attorney General and solicitors for the defendants will be alert to bring any perceived contempt or breach of the provisions of section 87A before the courts. The magistrate does not appear to have been told or to have appreciated that the word "publish" within the meaning of section 87A(11) of the Ordinance could apply to distributors.

14. Having regard to the terms of his rulings it is apparent that, in the context of difficult statutory provisions and of an uncertain stance on the part of counsel appearing for the Crown, the magistrate ignored or overlooked the principle of necessity expounded by Lord Halsbury in Scott v. Scott ^(I); a principle that was substantially repeated. by Sir John Donaldson M.R. in R. v. Chief Registrar of Friendly Societies, Exparte New Cross Building Society ⁽⁷⁾ He over-estimated the risk to the impartiality of potential jurors. Properly directed, juries are trusted to put prejudicial material out of their minds. By the same token he under-estimated the importance to public confidence in the administration of justice in Hong Kong of the presence at the inquiry of the foreign as well as of the local press even when the local press is inhibited as to what can, contemporaneously at least, be reported. It was not merely the confidence of the Hong Kong public, but also that of the international community that he should have borne in mind. To quote again from Lord Esher when he was dealing with the defence of privilege in defamation proceedings in Kimber v. Press Association ⁽⁵⁾ at p. 69:

 

"Public policy requires that some hardship should be suffered by individuals rather than that judicial proceedings should be held in secret."

15. In the premises the order of 1st October this year demonstrated an error of law, fundamental to the decision, on the face of the record. Further, it was not an order which the magistrate, in the exercise of his discretion, could. have made had he, despite the degree of consensus between the parties before him, properly directed himself as to the material considerations.  This court can act on a principle analogous to that illustrated in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation ⁽⁸⁾. The authorities for this proposition are R. v. Crown Court at St. Albans ⁽⁹⁾ per Donaldson, L.J. (as he then was) at p. 805 and R. v. Chief Registrar of Friendly Societies ⁽⁷⁾ at p. 401, also by Sir John Donaldson M.R., and at p. 412 per Slade, L.J.

16. In the exercise of the court's discretion I direct that an order of certiorari do issue forthwith to remove the Magistrate's Order dated 1st October 1984 into this court to be quashed. I also direct that the matter be remitted to the magistrate for reconsideration and so that he may make an order for the inquiry to proceed in open court without qualification.

17. In conclusion I would like to thank all counsel concerned for their cogent and helpful submissions and, for the avoidance of doubt, to emphasize that the provisions of section 87A remain in full force and effect and that the magistrate retains the discretion properly exercisable by him under section 80.

(1) 1913 A.C. 417

(2) 1979 A.C. 440

(3) (1982) 1 Q.B. 762

(4) (1983) 1 A.C. 280

(5) (1893) 1 Q.B. 65

(6) (1974) 2 All E.R. 1052

(7) (1984) 2 W.L.R. 370

(8) (1948) 1 K.B. 223

(9) (1981) 1 All E. R. 802