WONG YEUNG NG v. THE SECRETARY FOR JUSTICE

(Not for circulation)

FAMC No. 8 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 8 OF 1999 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV No. 161 OF 1998)

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DETERMINATION

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Mr Justice Litton PJ:

1. This is the determination of the Appeal Committee by a majority.

2. We have before us an application for leave to appeal, out of time, brought under section 32(3) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.

3. The applicant Mr Wong Yeung Ng, editor of the Oriental Daily News, was convicted on 23 June 1998 of two contempts of court and sentenced by the High Court to a total of 4 months' imprisonment. His appeal against conviction and sentence was dismissed by the Court of Appeal on 9 February 1999. Two days later the applicant was granted bail pending the hearing of his section 32 application by this Committee.

4. On 26 March 1999 the Court of Appeal granted a certificate that a point of law of great and general importance was involved in the case in these terms:

5. At the same time the Court of Appeal declined to certify other questions of law as sought by the applicant.

6. The applicant now comes before us under section 32(3) seeking a reformulation of the questions of law for our certification and leave to take the matter to the Court of Final Appeal. At the same time he seeks leave to appeal against the Court of Appeal's dismissal of his sentence of 4 months' imprisonment, on the ground that by such sentence a substantial and grave injustice has been done.

7. The charges on which the applicant stood convicted fall within 2 types, as summarized in Mayo JA's judgment:

8. It would be convenient to refer to them as charges 1 and 2.

9. Charge 2 came first in time. It related to a campaign of vilification and intimidation aimed at members of the Obscene Articles Tribunal and the judiciary, conducted by the applicant in the pages of the Oriental Daily News over a period of time, which the High Court in sentencing the applicant described as "without parallel in modern times": The features of the campaign which made it so unique included "the venom of the language used, the outrageousness of the motives ascribed to the targets and the impact the campaign had on confidence in the ability of the judges to dispense justice conscientiously and impartially". Counsel for the applicant accepts that the articles were published maliciously, in bad faith, and were "scurrilous, abusive, shocking and reprehensible". Counsel also accepts that there was a real risk of the articles diminishing the authority of the court and impairing public confidence in the administration of justice. In other words the articles were "calculated to undermine public confidence in the administration of justice in Hong Kong", in terms of charge 2. It is said, nevertheless, that arguably Article 16(2) of the Hong Kong Bill of Rights and Article 27 of the Basic Law, guaranteeing to the applicant freedom of expression, renders the conviction for contempt unlawful.

10. As to charge 1, this relates to a campaign to threaten, harass and intimidate Godfrey JA, by having him pursued night and day by employees of the Oriental Daily News, following an appeal in the Court of Appeal in which Godfrey JA had given the leading judgment adverse to the Oriental Press Group. The avowed purpose of the campaign was to "educate" the judge, but the real purpose, as the High Court found, was to take revenge for the Court of Appeal's judgment and to punish the judge for his part in it. This was, as the High Court said in sentencing the applicant, unprecedented in the common law world.

11. The constitutional right of free speech as contained in the Basic Law, adopting the norms set out in the International Covenant on Civil and Political Rights, is not an absolute right. Every civilized community is entitled to protect itself from malicious conduct aimed at undermining the due administration of justice. It is an important aspect of the preservation of the rule of law. Where the contemnor goes way beyond reasoned criticism of the judicial system and acts in bad faith, as the applicant has done in this case, the guarantee of free speech cannot protect him from punishment.

12. It is said by counsel that, arguably, the courts below set too low a threshold for (i) judging the constitutional validity of the common law offence of contempt and (ii) determining whether the acts complained of would, or might, undermine public confidence in the administration of justice. Most of these points have been expressly dealt with in the admirably comprehensive judgments of the courts below. Others are simply untenable: For instance the threshold for finding contempt proved in charge 1: which, counsel says, was set too low. In fact, the High Court found not only a real risk of due administration of justice being undermined, it said there was "indeed a very great likelihood" of this happening.

13. The courts below have given detailed and cogent reasons for reaching their conclusion on what, as counsel accepts, is an extreme case: The likes of which, hopefully, will never be seen again. There is no prospect of the Court of Final Appeal differing from their conclusion. Despite the Court of Appeal's certification, we refuse to give leave to appeal against conviction.

14. As to the sentence, this was carefully weighed by both courts below. Having regard to the gravity of the contempts, the applicant's own role as editor and his admitted bad faith, the sentence of 4 months' imprisonment appears extremely lenient. The notion that a substantial and grave injustice has been done is absurd. We decline to give leave to appeal against that sentence.

15. As to the costs of this application, they should be paid by the applicant.