HER MAJESTY’S ATTORNEY GENERAL IN AND FOR THE UNITED KINGDOM v. SOUTH CHINA MORNING POST, LTD AND OTHERS

IN THE COURT OF APPEAL

1987, No. 114
(Civil)

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J U D G M E N T

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Kempster, J.A.:

1.  South China Morning Post Ltd and Others seek the leave of this Court to appeal to Her Majesty in Council from the judgment given on 8^th September restoring an injunction restraining them from publishing excerpts from the now notorious book “ Spycather”.

2.  The application is made pursuant to the terms of the Order in Council regulating appeals from Hong Kong made on 10^th August 1909 as from time to time amended.  Rules 2 READS:

“2. Subject to the provisions of these Rules, an Appeals shall lie –

(a)   as of right, from any final judgment of the Court, where the matter in dispute on the Appeal amounts to or is of the value of $500,000 or upwards, or where the Appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $500,000 or upwards; and

(b)   at the discretion of the Court, from any other judgment of the Court, whether final or interlocutory, if, in the opinion of the Court, the question involved in the Appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to Her Majesty in Council for decision.”

3.  The judgment sought to be appealed against is interlocutory and accordingly Rule 2(b) applies.

4. We accept that the questions proposed to be canvassed if leave be given are of great general and public importance.  It nonetheless remains for this Court to exercise a discretion.

5.  If we grant the application the Judicial Committee of the Privy Council will be seized with an appeal regardless of its own wishes.  If we refuse it, however, South China Morning Post Ltd and the other applicants can seek special leave directly pursuant to the Judicial Committee (General Appellate Jurisdiction) Rules 1982.  The existence of this alternative procedure appears to us to be a matter of critical importance in the present instance.

6.  The Judicial Committee may be satisfied that, in effect, the relevant issues were determined by the House of Lords on 13^th August last in speeches made on appeals by the “Guardian” and “Observer” newspapers.  If so the Committee may also conclude that the public interest does not require that they be canvassed again.

7.  In the light of these considerations we are all of the opinion that the appropriate way for us to exercise our discretion is to refuse leave.

8.  We order accordingly.