HUI RAFAEL JUNIOR, also known as HUI SI-YAN RAFAEL AND OTHERS

HCCC 98 /2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 98 OF 2013

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R U L I N G

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1.  On 26 June 2014, I received a letter from the Legal Editor of Bloomberg News stating as follows:

“I write in relation to the above case to submit a request on behalf of Bloomberg News.

The case has, as you will be aware, generated significant public interest, and we are providing regular coverage of developments and the arguments put forward by all parties.

Mr David Perry QC, lead counsel for the prosecution, has given two ‘fund flow charts’ to the jury to assist them in understanding evidence being adduced.

Further to the principle of open justice and in the interests of accurate reporting on the case, we respectfully seek the Court’s permission to be granted access to copies of the same.

We strive for the highest level of accuracy in our reporting and believe this would assist our understanding of the arguments being put forward by the prosecution.”

The letter was signed by Mr Douglas Wong, the Asia Legal Editor of Bloomberg News.

2.  I brought this letter to the attention of counsel and have invited submissions on the issue raised, which I have heard this morning.  Mr Kelsey-Fry QC on behalf of D3 did not wish to engage in the argument since his client’s name and account details were absent from the flow charts, while Ms Montgomery QC for D2 was effectively neutral.  The remaining counsel for the other defendants objected to the material being provided with varying degrees of emphasis.  Mr Perry QC on behalf of the prosecution made it clear that he was adopting a position of acceding to the request in order that the issue could be tested by the adversarial process.  In so doing, he explained by authority the position in England and Wales.

3.  The issue is a novel one so far as criminal trials in Hong Kong are concerned and may well in an appropriate case require a consideration by the appellate courts of the scope and application of the open justice principle in relation to press access to documents referred to in criminal trials.

4.  There is no relevant Hong Kong authority on the matter raised by the press so far as the issue of open justice is concerned in criminal trials.  There is, however, some recent persuasive authority from the English Court of Appeal in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2013] QB 618, as applied in R v Marine A; In re Guardian; R (A) v Judge Advocate [2014] 1 Cr App R 26.  But, as Toulson LJ (as he then was) acknowledged in Guardian News and Media Ltd, the Court’s decision was breaking new ground in the application of the open justice principle[1].

5.  In essence, the Court in Guardian News and Media Ltd determined that where a claimant has a serious journalistic purpose in seeking access to documents, the courts should assist the exercise of informing the public on matters of public interest unless there were strong countervailing arguments; that the principle of open justice was not necessarily satisfied by holding the proceedings in public and permitting the reporting of the proceedings, since the purpose of the principle was not merely to allow the judge’s conduct of the case to be monitored, but to enable the public to understand and scrutinize the justice system of which the courts were the administrators; that the fact that the claimant’s application went further than the courts had considered necessary in the past was not decisive since the practice of the courts was capable of changing; that in the face of credible evidence from the claimant the courts should be cautious about deciding upon the adequacy of material already available to the claimant for its journalistic purpose; and that since the claimant had put forward good reasons for having access to the documents it sought, and since it had not been suggested that access would give rise to any risk of harm to any other party or place any great burden on the court, the claimant should be granted access to the documents sought on the basis of the common law principle of open justice.

6.  I regret to say that I am not greatly persuaded by the reasoning in this judgment.  Nor am I confident that the decision, and the reasons underlying it, will be followed in this jurisdiction in the context of criminal cases.

7.  Although it is not strictly necessary to explain why I have reservations about the reasoning in the English authorities, Guardian News and Media Ltd in particular, I should nevertheless briefly say something about how I view the principle in deference to the entirely proper and courteous request made by a member of the press and lest reliance be placed on my decision by another trial court without any reasons having been articulated by me.

8.  The English Court asked itself whether there were strong countervailing arguments against allowing the press access to the documents, assuming the press has a serious journalistic purpose for seeking access, and identified four main arguments, which it then rejected.

9.  The first countervailing argument which it identified was that open justice was satisfied if the proceedings were held in public and reporting of proceedings was permitted.  This objection was said by the Court to be based on too narrow a view of the purpose of the open justice system.  The Court went on to say that the purpose was not simply to deter impropriety or sloppiness by the judge hearing the case.  It was wider and enabled the public to understand and scrutinize the justice system of which the courts are administrators[2].

10.  With respect, open justice is justice that is not hidden.  I cannot see how allowing the press physical access to a document produced and referred to in the presence of all parties to a criminal cause as well as the public has much to do with enhancing an understanding and scrutiny of the justice system, any more than denying the press access to it has much to do with impeding an understanding and scrutiny of the justice system.  Arguably, on this basis, a member of the press who wished to see the statement of a witness who has been extensively cross-examined on inconsistencies in his statement would have a respectable if not strong argument for applying for access to the statement so that the public might better understand and scrutinize a justice system which holds that a jury may take an inconsistency in his statement into account when considering whether he is a believable witness, but that the statement is not itself evidence of the truth of its contents except for those parts the witness accepts are true.  To paraphrase Sir Humphrey Appleby in ‘Doing the Honours’: “Where will it all end?” once a respectable journalistic reason for better understanding the criminal justice system through the material concerned is mounted.

11.  In relation to the second countervailing argument, that to allow access would be to go further than the courts have considered necessary in the past[3], I would agree that the practice of the courts is not frozen, if by “practice” is meant the application of the principle.  But nor in the context of a common law principle, does the fact that R v Waterfield [1975] 1 WLR 711 was decided more than 35 years ago weaken its authority, particularly on the issue of whether the press is entitled to view exhibits in a trial; which is essentially the issue I face, although of course the flow charts are not exhibits themselves but seek to make sense of the exhibits.  In my view, to say as the Court in Guardian News and Media Ltd did, that “[i]n a case where documents have been placed before a judge and referred to in the course of proceedings, … the default position should be that access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong”[4] is to put the matter too high.  In my judgment, the default position is that the press are not entitled to look at exhibits or other material which have been referred to but not read out in full in open court, unless there are compelling reasons for a judge to exercise his discretion in favour of a press application to see the material: R v Waterfield (supra).

12.  So far as the third countervailing argument is concerned, namely that there was no necessity for the press to have the documents to report the proceedings properly, the issues having been ventilated very fully in open court, the Court accepted that there was credible evidence that the Guardian newspaper was hampered in its ability to report the case as fully as it wished[5].  That being so, the Court said it should be cautious about what would really be an editorial judgment concerning the adequacy of the material already available to the paper for its journalistic purpose[6].

13.  Frankly, I cannot see how one can escape making an editorial judgment if one is to exercise the sort of discretion, which the Court appears to have accepted must be exercised.  Indeed, the Court later went on to consider that “[c]entral to the court’s evaluation will be … the potential value of the material in advancing that purpose”[7], which sounds to me like the very language of editorial judgment.  The Court may have thought that by accepting that the Guardian had “a serious journalistic purpose in seeking access to the documents”[8], it had sidestepped the prosecution’s argument about satellite litigation on proportionality and the protection of private rights to confidential and sensitive information[9].  Yet, a “serious journalistic purpose” is itself a value judgment, which, where it is disputed, may well lead to endless satellite litigation involving third parties during a trial.

14.  The fourth countervailing argument was that to allow the application would create a precedent, which would give rise to serious practical problems for the courts[10].  The English Court was not impressed by this objection citing certain Criminal Procedure Rules in England, which it said provided a sensible and practical procedure where a member of the public, including a reporter, wanted to obtain information about a case or to inspect a document.  The applicant may be required to pay an appropriate fee; it must specify what it wants; and it must explain for what purpose the information is required[11].

15.  With respect, I am more impressed by this objection than was the English Court of Appeal.  Indeed, I have considerable sympathy with the reasoning of the district judge at first instance[12].  In Hong Kong we do not have, so far as I am aware, the equivalent of rule 5.8 of the English Criminal Procedure Rules 2011.  The application of this authority to our criminal justice system would have considerable ramifications on the way our courts are operated, not to mention the practicalities and resources for dealing with such applications.  Who is to provide the documents?  Is it the court through the court staff?  If so, who pays and how much?  The problem is perhaps obviated in this case by the prosecution indicating its willingness to provide the documents in question upon request.  Yet that is hardly a satisfactory or long term solution to the problem; particularly where the prosecution might oppose the application.

16.  Accordingly, I am doubtful whether the reasoning in these recent English cases will ultimately be accepted and, if so, how it will be applied to our criminal jurisdiction.

17.  In my judgment, the matter is readily susceptible of judicial discretion on time-hallowed principles.  I would agree with Lord Bingham of Cornhill CJ in SmithKline Beecham Biologicals SA v Connaught Laboratories Inc [1999] 4 All ER 498 at 512:

“Public access to documents referred to in open court (but not in fact read aloud and comprehensively in open court) may be necessary, with suitable safeguards, to avoid too wide a gap between what has in theory, and what has in practice, passed into the public domain.”

18.  The argument is finely balanced.  On the one hand, the flow charts were admitted for the purpose of rendering intelligible to a jury and the court the evidence of intricate financial transactions, without which a proper understanding of the prosecution allegations would have been extremely difficult.  Indeed, such a practice is to be encouraged.  That difficulty is even more pronounced for the press or the public who do not have access to the flow charts, or the documents underlying the transactions, or the bankers’ affirmations proving the bank entries.  There is an obvious, sensible and important journalistic purpose involved, which hardly needs to be stated, and which the flow charts will undoubtedly enhance, namely, the accurate reporting of the evidence in a case of considerable intricacy as the case continues to unfold.

19.  On the other hand, as counsel have correctly observed, these documents are not in fact exhibits and they essentially present the prosecution view of the evidence in order to assist the jury in understanding the alleged underlying transactions.  They are aids for the jury which depict the prosecution allegations: they do not present the entire picture and, as with all statements as to what the prosecution case is, they may require to be qualified or corrected.  Yet, how is that sensibly to be done once the documents have been placed in the public domain?

20.  Furthermore, the charts will be disseminated in the public domain without the public knowing of the conditions which I attached to their reception by the jury or the limits on the use to which the material may be put.  There is an obvious danger that the public might perceive the flow charts to be the beginning and end of the evidence.

21.  I am also concerned that the flow charts contain references to personal bank account details, including the bank account details of individuals such as PW16, Madam Mabel Chan, who on the prosecution’s own evidence is entirely blameless in this matter.  Of course, such details could be suitably redacted in some way so as to protect the integrity of the banks and the bank accounts concerned.

22.  In the result, I have come down on the side of refusing the request.  I am satisfied that a careful following of the questions and evidence so far from the prosecution by reference to the flow charts will sufficiently explain the matter for the press or anyone else present in open court.  I am further satisfied that open justice is not compromised by my declining in the circumstances to permit the flow charts to be provided to the press in this matter.

[1] R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2013] QB 618 at §90.

[2] ibid. at §79.

[3] ibid. at §78.

[4] ibid. at §85.

[5] ibid. at §§78 and 82.

[6] ibid. at §82.

[7] ibid. at §85.

[8] ibid. at §76.

[9] ibid. at page 625G-H.

[10] ibid. at §78.

[11] ibid. at §84.

[12] ibid. at §11.