SECRETARY FOR JUSTICE v. APPLE DAILY LTD. AND ANOTHER

HCMP1927/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1927 OF 2000

--------------------

------------------------

J U D G M E N T

------------------------

1. This matter comes before me by way of an originating summons and the plaintiff seeks an order that the defendants disclose to the plaintiff particulars of the reporter who wrote or otherwise prepared an article headed "A Luminous Toy 'Precious Sword' was used to cajole (some one) to (his) Home. A Paedophiliac Vietnamese Male is suspected of Killing a 5-year-old Child." which was published in 5 October 1999 issue of the Apple Daily. There is also an application for costs.

2. The history of this matter is that on 4 October 1999, a trial commenced before Stock J and a jury in which one Yuen Wing Kong was charged with the murder of a five-year-old child. On 5 October 1999, the defendants published an article in the Apple Daily newspaper concerning the trial and the plaintiff claims that the article described the defendant in that trial as a paedophile or otherwise suggested that he had paedophiliac tendencies, when no such allegations had been made during the course of the trial to the time of the publication of the article, and further alleged that the article suggested that the defendant in that trial had committed the murder to silence the victim, when no such allegation had been made during the course of the trial to that time. There were further matters within the article that the plaintiff alleges prejudiced the trial. As a result of the publication of the article, counsel on behalf of Yuen Wing Kong applied for a discharge of the jury . Stock J granted the application and ordered that Yuen Wing Kong be tried afresh.

3. On 14 April 2000, the Secretary for Justice made an ex parte application pursuant to Order 52, rule 2(2) of the Rules of the High Court for leave to apply for committal for contempt of court of the defendants. On 5 May 2000, leave was granted.

4. Annexed to an affirmation of Cheung Kam Wai, Christina filed in support of the ex parte application for leave was certain correspondence between the applicant and the solicitors for the defendants. It is clear from that correspondence that the Secretary for Justice wishes to obtain the particulars of the name and address of the reporter who wrote the article with a view to seeking leave to apply for an order of committal in respect of that reporter. It was also clear from the correspondence that the defendants refused to reveal that information to the Secretary for Justice and these proceedings have been brought for an order that the name and particulars be disclosed to the Secretary for Justice.

5. Mr Yu takes as his starting point the proposition that the court has a jurisdiction to grant discovery not only to assist a party in existing litigation, but as an independent action to discover the identity of a potential defendant. He relies upon the case of Norwich Pharmacal v. Customs & Excise [1974] AC 133 where it was held :-

"... that where a person, albeit innocently and without incurring any personal liability, became involved in the tortious acts of others he came under a duty to assist one injured by those acts by giving him full information by way of discovery and disclosing the identity of the wrongdoers, and for that purpose it mattered not that such involvement was the result of voluntary action or the consequence of the performance of a duty statutory or otherwise;"

6. And further per Viscount Dilhorne :-

"... discovery can be granted against a person who is not a mere witness to discover, the fact of some wrongdoing being established, who was responsible for it."

7. The grant of such discovery, he argues, is a discretion in the court which should be exercised in the interest of justice. He quotes Norwich Pharmacal, per Lord Morris of Borth-y-Gest :-

"... it would be very unfortunate if the law could not come to the aid of the plaintiffs."

and further:-

"In the absence of any such prohibition it seems to me that in the special circumstances of this case, and with some support from authority, the interests of justice warrant the court in making the desired order ... "

That proposition found support in British Steel Corporation v. Granada Television Ltd. [1981] AC 1096. To this point, the argument supports the use of discovery to force the disclosure of names where, firstly, a tortious act has been committed and those from whom disclosure is sought were involved in that tortious act.

8. Mr Yu seeks to extend that proposition to discovery of persons involved in actions related to contempt of court. He refers me to the case of Harrington v. Polytechnic of North London [1984] 1 WLR 1293. In that case, a student of the North London Polytechnic who practised somewhat radical politics, obtained an injunction against the Polytechnic and another to prevent exclusion of his attendance at lectures at the polytechnic. A picket of students in breach of that injunction prevented him from entering the polytechnic and action was taken. An application was made for discovery of the identities of the persons depicted in photographs taken of the pickets. Lecturers were instructed to examine the photographs and swear affidavits stating either the names of those persons known to them or confirming none was known. A number of lecturers refused to comply and the judge ordered 14 named lecturers to identify persons in the photographs. On appeal, it was held that the servants and agents of a corporation could be required to give discovery on behalf of the corporation and that since there was already in force an order for discovery against the Polytechnic, there was jurisdiction to order the 14 lecturers as agents of the polytechnic to disclose all relevant information in their possession. The Court of Appeal confirmed that the court had jurisdiction to make a discovery order on Norwich Pharmacal principles to enable the plaintiff to identify those who acted in contempt of court by disobeying the injunction against preventing the plaintiff from attending classes at the polytechnic. Mr Yu argues that he has established that discovery is available in cases of civil contempt as exemplified by Harrington v. North London Polytechnic not withstanding that penal sanctions are available for civil contempts. He maintains that the existence of penal sanctions or the potential for criminal proceedings to arise out of the disclosure of names by way of discovery is no bar to that discovery.

9. In British Steel Corporation v. Granada Television Ltd. [1981] AC 1096 where the plaintiff sought disclosure of the name of a person who delivered to the defendant highly classified documents belonging to the plaintiff for disclosure upon their television channel, Sir Robert Megarry at p.1106 held that the privilege against self-incrimination was not available as a defence against the disclosure :-

"... the privilege against self-crimination can be invoked only by someone who does so in good faith for his own protection, and not for some ulterior purpose : it is a privilege against self-crimination, and not a privilege against the incrimination of others, or for the protection of them or their property."

Viscount Dilhorne said at p.1184 :-

" In the present case the person who took the documents and gave them to Granada was clearly a wrongdoer, if not a thief. Granada can scarcely claim to come within the category of innocent persons for they must have known that the taker of the documents had no right to give them to them and they maintained that they were liable to prosecution. Their relationship to the taker of the documents was in my opinion such as to impose on them the duty to disclose that person's identity for, we were told and it was not disputed, without such disclosure B.S.C. would have been unable to secure any redress for the wrong they had suffered at the hands of the taker.

...

If in a case such as this, where the taker of the documents had no right to take them, where he was clearly a wrongdoer and where Granada was involved in handling the documents and used them when it had no right to do so, no order for the discovery of the identity of the wrongdoer could be made with the result that B.S.C. could not obtain redress for the wrong they had suffered at the hands of the taker, there would be a denial of justice to B.S.C. and the gap in the law would constitute a charter for wrongdoers such as the taker of the documents in this case."

It is to be noted however that disclosure was ordered in that case on the basis that Granada had previously made full admissions and the discovery would not further prejudice them. I accept that the reporter in this case is arguably a wrongdoer and that the defendants herein were arguably involved in that wrongdoing.

10. The final major argument raised by Mr Yu in respect of jurisdiction is that the distinction between criminal and civil contempt has diminished to a point where no distinction ought to be made between the two types of contempt, particularly, in so far as orders such as the one sought from me today are concerned. Therefore, the argument so far runs that discovery is available from a person involved in a wrongdoing to discover the name of others involved in the wrongdoing and that a right of silence against self-incrimination is not available and the possibility of criminal proceedings or sanctions arising from the disclosure are not a bar to the disclosure, and that all the elements necessary for an order of disclosure against the defendants are present in the facts of the matter before me.

11. Mr McCoy approaches this matter from a totally different standpoint. His first proposition is that these proceedings are in respect of a criminal cause or matter and that criminal contempt is enshrined in our legislation as a contempt separate from civil contempt by the provisions of section 50(1) of the High Court Ordinance. He denies the convergence of civil and criminal contempt and argues that the comments of Salmon LJ in Jennison v. Baker and Sir John Donaldson MR in Attorney-General v. Newspaper Publishing Plc. are no more than obiter dicta which suggest what may happen in the future but do not affect the position as it presently stands that criminal and civil contempts occupy separate and distinct places within the Common Law. The first point he makes, based upon the argument that this is a criminal cause or matter, is that there is no duty whatsoever on any defendant in any criminal proceedings to assist the prosecutor. This invokes the expression "the right to silence". Many of the authorities that deal with the right to silence deal with the principle in relation to the privilege against self-incrimination following the maxim nemo debet prodere se ipsum. Lord Diplock said in Regina v. Sang [1980] AC 402 :-

"The underlying rationale of this branch of the criminal law, though it may originally have been based upon ensuring the reliability of confessions is, in my view, now to be found in the maxim nemo debet prodere se ipsum, no one can be required to be his own betrayer or in its popular English mistranslation 'the right to silence'."

12. However, that is not the only view of the right to silence. In Regina v. Director of Serious Fraud Office, Ex parte Smith [1993] AC 1 at p.30, Lord Mustill had this to say :-

" I turn from the statutes to 'the right of silence.' This expression arouses strong but unfocused feelings. In truth it does not denote any single right, but rather refers to a disparate group of immunities, which differ in nature, origin, incidence and importance, and also as to the extent to which they have already been encroached upon by statute. Amongst these may be identified :

(1) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies.

(2) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them.

(3) A specific immunity, possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officers or others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind.

(4) A specific immunity, possessed by accused persons undergoing trial, from being compelled to give evidence, and from being compelled to answer questions put to them in the dock.

(5) A specific immunity, possessed by persons who have been charged with a criminal offence, from having questions material to the offence addressed to them by police officers or persons in a similar position of authority.

(6) A specific immunity (at least in certain circumstances, which it is unnecessary to explore), possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial."

And at p.31 :-

"We must look briefly at these various motives. The first is a simple reflection of the common view that one person should so far as possible be entitled to tell another person to mind his own business. All civilised states recognise this assertion of personal liberty and privacy. Equally, although there may be pronounced disagreements between states, and between individual citizens within states, about where the line should be drawn, few would dispute that some curtailment of the liberty is indispensable to the stability of society; and indeed in the United Kingdom today our lives are permeated by enforceable duties to provide information on demand, created by Parliament and tolerated by the majority, albeit in some cases with reluctance."

If that is right, then the argument goes that the ordinary citizens, of which the defendants are two examples, have a general right in a criminal matter not to answer questions unless there is a statutory duty requiring them to do so. This proposition does not of course contradict what was held in Norwich Pharmacal, as the judgment given by Lord Mustill related to a criminal cause and the investigation of fraud by the Director of Serious Fraud Office and the rights set out by his lordship were set out in the context of a criminal proceedings.

13. Mr McCoy further argues that the defendants are not compellable witnesses. They can not be compelled either in their own trial or in another trial to come forward and give the evidence which is sought to be disclosed here. That there is no jurisdiction in this court to force a defendant, by a coersive order, to say or do anything that would otherwise be involuntary in criminal proceedings.

14. It is clear that in any trial of the defendants they would be entitled not to give evidence and could not be compelled to do so. And if they did give evidence, it may well be argued that questions relating to the particulars of the reporter who wrote the offending article were irrelevant to the guilt or otherwise of the defendants of the contempt complained of.

15. In support of the contention that a person charged with a contempt of court cannot be compelled to give evidence in the proceedings against him, Mr McCoy refers me to Comet Products UK Ltd. v. Hawkex Plastics Ltd. and Another [1971] 2 QB 67 where Lord Denning said at p.74 :-

"I am prepared to accept that such a rule did exist in the days of Sir William Blackstone. But I do not think it exists any longer today. The genius of the common law has prevailed. I hold that a man who is charged with contempt of court cannot be compelled to answer interrogatories or to give evidence himself to make him prove his guilt. I reject the submission that the defendant is a compellable witness in the contempt proceedings against him."

It is true that this deals with the prohibition against self-incrimination and not with the broader right to silence, but it does assist in cases of criminal contempt by supporting the argument that this is a criminal cause or matter and that the law and procedure to be applied are those of the criminal law and not the civil law.

16. Mr McCoy advances an argument that there is no authority for the use of a discovery process in criminal contempt. I have not been shown any such authority. Borrie & Lowe on the Law of Contempt, 3rd Ed. states that :-

"It remains uncertain whether the same rules of discovery are applicable to civil and criminal contempts."

The authors refer to the case of In the Matter Relating to the Supply of Ready Mixed Concrete in the Restrictive Practices Court (unreported, 4 August 1995), where Buckley J apparently held that the duty of discovery should be nearer to that common to criminal proceedings than to civil proceedings. Borrie & Lowe further explored the distinction between civil and criminal contempts where the author said at p.663, concerning the comments of Salmon LJ in Jennison v. Baker and Sir John Donaldson in Attorney General v. Newspaper Publishing Plc. :-

"Despite this, as we have seen, not only does the classification persist but there remain some not insignificant differences. It certainly cannot be said that the issue of classification is of academic importance only. Moreover it may still be argued that the two types of contempt are essentially different in that criminal law is concerned to protect the public interest in the due administration of justice whereas civil contempt (at any rate where disobedience of court orders does not pass into the realm of public misconduct and therefore into the arena of criminal contempt) is concerned to protect the private interest in the enforcement of court orders."

17. The basis, therefore, of Mr McCoy's submission is that this is a criminal cause or matter, the defendants have a right to silence against questioning not only as to their own criminality, but to any questions whatsoever; that right to silence should only to be disturbed by statutory provision; that the distinction between criminal and civil contempt still remains both by statute and under the Common Law, and that any importation of discovery into the criminal law as sought by the plaintiff would be to undermine the basic rights of a citizen.

I am in agreement with Mr McCoy. The matter upon which the Secretary of Justice would seek to proceed, if successful with discovery, would be a matter of criminal contempt. This is a criminal cause or matter. Although it is brought pursuant to an originating summons and in the guise of a civil matter, everything else about it relates to the criminal law and the committal for contempt sought by the plaintiff is a criminal contempt. I am satisfied that the distinction between civil and criminal contempts exists and that the criminal law should prevail as to the procedure to be applied in respect of criminal contempts. If it were possible, by civil proceedings, to obtain an order for discovery against persons known to be involved in a criminal action or criminal act, to force them to divulge details of their confederates or other matters pertaining to the offence whilst attractive to the maintenance of law and order, that procedure would cut across the basic principles of the criminal law. This application is refused.