R v. MING PAO NEWSPAPER LTD AND OTHERS

IN THE COURT OF APPEAL

1995, No. 514
Magistracy Appeal

HEADNOTE

Bill of Rights - section 30(1) Prevention of Bribery Ordinance - 'Necessary' for maintaining respect for the rights and reputations of others and for protection of public order.

Held: (Court of Appeal): section 30(1) consistent with guarantee of free expression in Article 16(3) Bill of Rights.

IN THE COURT OF APPEAL

1995, No. 514
Magistracy Appeal

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J U D G M E N T

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Litton, V-P giving the judgment of the Court:

1. We have before us an appeal by way of a case stated by a magistrate under the Magistrates Ordinance on a question of law. The appeal has come to this court from the High Court pursuant to s118(1)(d) of the Magistrates Ordinance.

2. The appellant is the Attorney-General. The respondents are respectively the proprietor and publisher, editor-in-chief, executive chief editor and deputy chief editor of the Ming Pao Daily News who were charged with committing an offence under section 30(1) of the Prevention of Bribery Ordinance.

Question of law

3. The question of law for our consideration is expressed in these terms: whether the magistrate has erred in holding that the respondents had no case to answer upon the basis that s30 of the Prevention of Bribery Ordinance had been repealed by reason that it did not admit of a construction consistent with the Bill of Rights.

Section 30 Prevention of Bribery Ordinance

4. Section 30 of the Prevention of Bribery Ordinance is in these terms:

"30. Offence to disclose identity, etc. of persons being investigated

(1) Any person who, without lawful authority or reasonable excuse, discloses to any person who is the subject of an investigation in respect of an offence alleged or suspected to have been committed by him under this Ordinance the fact that he is subject to such an investigation or any details of such investigation, or discloses to any other person either the identity of any person who is the subject of such an investigation or any details of such an investigation, shall be guilty of an offence and shall be liable on conviction to a fine of $20,000 and to imprisonment for 1 year.

(1A) Where a person who is the subject of an investigation in respect of an offence alleged or suspected to have been committed by him under this Ordinance has been arrested in connection with such offence, subsection (1) shall not apply as regards the disclosure after such arrest of details of the investigation or the identity of the person.

(2) Notwithstanding anything in subsection (1), the Commissioner may disclose the identity of any person if-

(a) he has failed to comply with a notice under section 14(1)(a) or (b);

(b) a restraining order has been served on any person under section 14C(3);

(c) his residence has been searched under a warrant issued under section 17;

(d) he has been required to surrender any travel document under section 17A; or

(e) a warrant for his arrest has been issued."

Bill of Rights

5. The provisions of the Bill of Rights said to have been infringed are Article 16(2) and (3) which, where relevant, states:

"(2) Everyone shall have the right to freedom of expression; this right shall include freedom to ... impart information ....

(3) 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 ... of public order...."

The Magistrate's approach

6. Although the Magistrate has declared that the whole of s30 of the Prevention of Bribery Ordinance has been repealed, it would be fair to assume that he was essentially directing his mind to subsection (1) of s30. But, even then, his judgment is too wide because s30(1) creates two separate offences: The first part deals with disclosure to the suspect; the second part deals with disclosure to other persons. Here, the charge before the Magistrate was brought under the second part of s30(1): namely disclosing to the readers of Ming Pao Daily News the details of an investigation by the Independent Commission Against Corruption. The Magistrate was not seized of a charge alleging that the respondents had, without lawful authority or reasonable excuse, disclosed the fact of an investigation or the details thereof to a suspect: that is, a charge under the first part of s30(1). On any view of this case, therefore, the Magistrate's conclusion is too wide: he has no jurisdiction under s3(2) of the Bill of Rights Ordinance to deal with a statutory provision beyond the particular matter before him.

Brief facts

7. Since we are concerned only with the constitutionality of s30(1) of the Prevention of Bribery Ordinance, the facts of this case can be stated in a summary way. They are as follows.

8. On 26 May 1994 the Government held a land auction attended by the media. The next day a number of newspapers alleged that there had been a cartel organised at that auction to depress the land price. On 2 August 1994 ICAC investigators sought interviews with the reporters of the Ming Pao Daily News who had attended the land auction on 26 May. The following day the Ming Pao published articles as follows:

"ICAC took steps to meet reporters in its investigation in relation to the developers' joint bidding (for) land" and

"The ICAC is investigating whether anyone had infringed any Ordinance in a land auction held on 26 May this year in which over 10 developers combined to bid for land."

9. The article went on to explain that in order to collect information ICAC investigators had approached media organisations with a view to meeting reporters and others who had attended the bidding process. And the article added: "the target of this ICAC investigation has not yet been ascertained."

Magistrate's ruling

10. This led to the charge against the respondents under s30(1). The Magistrate, at the conclusion of the prosecution case, ruled that s30 of the Prevention of Bribery Ordinance was inconsistent with the Bill of Rights and had, by the operation of s3(2) of the Ordinance, been repealed and accordingly dismissed the information against the respondents.

11. It is common ground that, on its face, s30(1) is a restriction on the freedom of expression. But, as provided in Article 16(3) of the Bill of Rights, the exercise of the right of free expression carries with it special duties and responsibilities. The question before this court therefore boils down to this: are the restrictions imposed by s30(1) necessary (a) for maintaining respect for the rights or reputations of others, or (b) for the protection of public order?

Object of s30(1)

12. As the courts have repeatedly stressed, corruption is a particularly insidious evil in society. Often, in a corrupt transaction, there are two satisfied parties: the one giving the bribe and the one receiving it. Society itself suffers, as the fabric of law and order gets eaten away.

13. So, in order to combat this particular social evil, the legislature has enacted the Prevention of Bribery Ordinance which arms the ICAC with very wide powers of investigation. These are set out in Part III of the Ordinance. Looking at the first part of s30(1) - which prohibits disclosure to the person under investigation of the fact that he is the subject of an investigation or the details thereof - one can readily see why such a prohibition is necessary. The investigation may, and often does, involve third parties: bankers, accountants, people who might reasonably be thought to have information relevant to an investigation: if these third parties are free to disclose to the suspect the fact that an investigation is underway, the suspect could take steps to hide his assets and to destroy evidence, or take other measures to defeat the investigation.

14. And looking at the second part of s30(1), it cannot be assumed that every time an offence under the Ordinance has been alleged or suspected to have been committed, and an investigation is underway, it necessarily leads to a person being charged. The allegations and suspicions may, ultimately, turn out to be groundless. The protection of the reputation of suspects, who may have to undergo the opprobrium of investigation over a long period, is a matter of considerable importance: particularly if the suspect is a Crown servant having to perform his duties vis-a-viz the public in the meanwhile. No time limit is imposed by statute for the process of investigation.

The court's approach

15. It is, in our judgment, important to approach a question like this broadly. It would be futile to try to envisage every possible situation under which a charge under s30(1) might conceivably be brought: for instance, as was much pressed before the Magistrate: the disclosure of the identity of a suspect in the course of a private conversation. Or, as Miss Gladys Li QC argues in this court: What if the investigation turns out not to relate to an investigation under the Prevention of Bribery Ordinance at all - but, for instance, under the Corrupt and Illegal Practices Ordinance? In such a case, she argues, no offence would have been committed under s30(1), and yet s30(1) could still be held in terrorem over the heads of newspaper editors, because it would be peculiarly within the knowledge of the ICAC, but not of the editors, regarding the particular statute on which the investigation is actually focussed. We are not sure that we have wholly understood all the subtleties of Miss Li's argument. If in fact it should transpire that an investigation, the details of which have been disclosed by a newspaper, was not an investigation into offences under the Prevention of Bribery Ordinance, the outcome must surely be an acquittal on the charge under s30(1): so wherein lies the grounds for complaint? Particularly, since knowledge or recklessness has to be proved?

"Provided by law"

16. As we understand Miss Li, she has a second string to her bow: the offence under s30(1) is, she argues, too vague and amorphous; newspaper editors will generally not know whether an investigation is under the Prevention of Bribery Ordinance or under some other Ordinance; yet, if it is under the former, disclosure constitutes a crime, but if it is under any other Ordinance the editors would be free to publish the details of the investigation as they wish. So, she argues, the statute fails a different test: that provided by the expression in Article 16(3): "provided by law".

17. In this regard we have been referred to a case in the international law field, that of the Sunday Times v. United Kingdom (1979) 2 EHRR 245 at para 49 where the court sought to construe a similar expression in Article 10 of the European Convention:

"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.... 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 - 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."

18. As can be seen, this is a somewhat vague interpretation of that expression. We are doubtful as to its relevance to the circumstances of Hong Kong. In our system of law, an Ordinance which lays down an offence would set out with particularity the ingredients to be proved; the consequences of the given action can generally be foreseen. In respect of s30(1) it includes the ingredient of mens rea. It is difficult to envisage circumstances where, in the Hong Kong context, this requirement cannot be met. The respondent's reliance upon this part of Article 16(3), in our judgment, fails in limine.

Need for s30(1)

19. But reverting to the main argument and looking at the matter broadly, we are wholly persuaded by the Solicitor-General's argument that s30(1), in its full amplitude, is necessary both for the respect of the rights and reputations of others and for the protection of public order. The protection of informers is one of the instances he cited. But we do not think it is necessary to go into greater degrees of sophistication than to say that the primary purpose of s30(1) is to protect the reputation of persons under suspicion and to protect the integrity of investigations into offences alleged or suspected under the Ordinance.

Public interest in disclosure

20. Looking at the reverse side of the argument, it is difficult to see what public interest can be served by newspapers disclosing details of an investigation before a suspect is charged. If he is charged, the matter comes within the restrictions imposed by common law: that is to say, the sub-judice rule and the law of contempt. And if he is not charged, what possible public interest is served by disclosing the ICAC's suspicions regarding that person?

21. In the course of argument, the example was cited of an ICAC investigator acting oppressively and in abuse of his powers. Should the law, Miss Li asks rhetorically, prohibit the disclosure of such acts? The answer as it seems to us is this: s30(1) does not impose an absolute prohibition. If a person, in the bona fide belief that the disclosure of the details of an investigation is for the purpose of revealing abuse of power or illegality, we would have thought that the words "without reasonable excuse" would save him from prosecution.

Conclusion

22. We would therefore approach the question of what is deemed "necessary" in terms of Article 16(3) broadly - and like Sir Derek Cons V-P in Tam Hing-yee v. Wu Tai Wai [1992] 1 HKLR 185 at 191:

"We do not feel that the court is assisted by substituting for 'necessary' some phrase such as 'pressing social need' (see The Sunday Times v. The United Kingdom [1979]2 EHRR 245 at para 59-62)."

23. In our judgment s30(1) is necessary for the purposes urged by the Solicitor-General. In our judgment, the experience of the courts has demonstrated over and over again the necessity for legislation such as s30(1) which, as the Solicitor-General has so cogently put, protects two interests:

(a) effective law enforcement in the field of prevention of bribery and

(b) the respect for the rights and reputations of other persons.

24. We would accordingly allow this appeal and answer the question raised in the case stated by saying: yes, the Magistrate has erred in law: s30 of the Prevention of Bribery Ordinance has not been repealed and is consistent with the Bill of Rights.