ATTORNEY GENERAL v. SOUTH CHINA MORNING POST LTD AND ANOTHER

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JUDGMENT

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Preliminary

1. On the 4th of September the Attorney General applied ex parte for leave to make an application for committal for contempt of court against the 1st and 2nd Respondents in relation to an article published in the South China Morning Post on the 14th of June 1984. The application was duly granted by Barnes J.

2. The background of the matter was unusual. Four Defendants were being tried before Hooper J. and a jury on charges of murder and robbery arising from an attack made on a goldsmith's shop in which two Pakistani security guards had been murdered. The case attracted a great deal of public attention due to the particularly cold-blooded, and deliberate way these murders had been carried out.

3. There were four accused in this trial. One of them, Cheung Ka-fai, had not made any statement. Two others, Cheung Sai-hung and Yeung King-yu,had made statements to the police but following the usual voir dire the trial Judge had ruled that they were not admissible. However statements made by the fourth accused, Tam Chit-yiu, had been admitted. After Crown Counsel had concluded his final address to the jury and while defence Counsel were in the course of their submissions, the trial Judge decided that Tam's statements should not have been admitted. He directed the jury that he was withdrawing those statements from them and they must decide the case as if they had never existed. Needless to say this was an unusual course of events. The following morning this ruling was reported in the South China Morning Post under the headline "Judge changes his mind on 'confessions''. Most of the article is perfectly proper and appears to be accurate, but it did contain this statement.

"Cautioned statements made by Cheung Sai-hung and Yeung have already been ruled inadmissible.".

4. Any member of the jury therefore reading this report on the day in which the Judge was to sum up the case to them would have been aware that there were cautioned statements made by Cheung Sai-hung and Yeung King-yu which had not been placed before them. While not aware of the contents they would probably conclude they were confessions and clearly they should not have been aware of those statements at all. The voir dire proceedings were held in the absence of the jury, as is normal.

5. On the 22nd of June 1984 a letter was sent from the Attorney General's Chambers to the 2nd Respondent, who is the editor of the South China Morning Post, advising him that it was considered that a contempt of court had been committed and asking if there was anything he wished to say by the way of explanation or mitigation before the Attorney General was invited to consider what action appropriate. By a letter of the 25th of June 1984 the 2nd Respondent replied stating that the article complained of had been entirely inadvertent and had been published without being aware of the possible repercussions and he tendered his very deep regret for what had transpired. The Attorney General however considered that a contempt of court had been committed and these proceedings were instigated, in my view quite properly.

Has there been contempt

6. There is in my view no doubt whatever that the proceedings in respect of the confession statements made by Cheung Sai-hung and Yeung King-yu having been held in the absence of the jury it was quite wrong for any mention to be made of those statements in a newspaper report and particularly one published on the very day the jury was about to consider its verdict. It is very easy to come out with somewhat trite expressions such as the spring of justice must run clear" but nevertheless it is an important principle that evidence which has been ruled inadmissible in the absence of the jury should not be in any way brought to its attention. The test is whether the article was" calculated" to interfere with the administration of justice even if it was not a deliberate attempt to do so. There is ample authority that the word "calculated" in this context is the equivalent to "likely" Custom Glass Boats Ltd. v. Salt House Bros. Ltd. (1976) 1 N.Z.L.R. 36. That was a case of libel but the principle is the same.

7. It was submitted by Mr. Mitchell for the Respondents that the article was not given much prominence and jurors may well not have seen it. While the offending part is small the article was published in the Court reports page and I think it highly likely that a juror, being English speaking, would read an article in the South China Morning Post concerning the case he was involved in.

8. I have no doubt that a contempt of court was committed by the publishing of the article in question.

Mitigation

9. There are several matters which make this an unusual case and different from other authorities to which I have been referred, such as A.G. v. Biddulph and Others M.P. 1238/84 which came beofre the Full Bench in Hong Kong in June of this year. There a report was published conerning proceedings in the absence of the jury despite clear, repeated and explicit warnings by the Judge that no such report should be published and heavy fines were imposed.

10. These factors are as follows

Penalty

11. I am satisfied that there does not need to be anything more than a nominal penalty imposed in this matter and the 1st Respondent will pay a fine of $10,000. I do not consider that there is any need for any penalty to be imposed personally on the 2nd Respondent. The 1st Respondent will pay the Attorney General's costs.