IN THE HIGH COURT OF HONG KONG

CRIMINAL JURISDICTION

Case No. 262 of 1986

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BETWEEN

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RULING

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Preliminary

1. This is an application by the Attorney-General, appearing both as a party to the proceedings and in the general public interest, for the imposition of restrictions on the reporting by the press of the proceedings in The Queen against Hashim Shamsudin, which is due to begin later today.

2. The background to this application is as follows: Mr. Shamsudin was arrested in the United Kingdom on the 6th December 1985 and, together with a man called Lorrain Osman, was a respondent in an application in the United Kingdom by the Hongkong Government for his return to Hongkong under the Fugitive Offenders Act, to stand trial on charges in respect of which the warrant under which he was arrested was issued.

3. The hearing of the application for the return of these two respondents began in London on the 27th May last year and continued at the Bow street Magistrate's Court until the 6th November, on which date Mr. Shamsudin indicated, through his counsel, that he was willing to consent to an order that he be committed to custody to await the Home Secretary's order for him to be returned to Hongkong.

4. This consent was on the basis that he would be returned to Hongkong to face two counts of conspiracy to defraud and two counts of accepting an advantage, contrary to the Prevention of Bribery Ordinance.

5. He was duly returned to Hongkong on the 23rd November.

6. He appeared before a magistrate the following day and was remanded in custody until the 24th December, by which time I had given my consent to the filing of a bill of indictment containing the four counts to which I have earlier referred.

7. Having so returned, it is the wish of Mr. Shamsudin that his plea should be taken and dealt with at the earliest reasonable opportunity.

The Carrian Case

8. Among those named as co-conspirators in the Shamsudin indictment are some of those whom I will describe as the “Carrian defendants", that is to say, those who are at present being tried in High court Criminal Case No. 117 of 1985 before Mr. Justice Barker.

9. In the first count against Mr. Shamsudin appear the names of George Tan, Bentley Ho and Ibrahim Jaafar. The latter, although not named in the Carrian indictment, has, I am told, given substantial evidence in that trial on behalf of the Crown.

10. Similarly, in the second count against Mr. Shamsudin, appear as co-defendants George Tan arid Ibrahim Jaafar.

11. The third arid fourth counts against Mr. Shamsudin contain references to Mr. George Tan

12. I note - and it is a matter of general knowledge - that the Carrian trial began on the 19th February of last year. It has thus already proceeded for almost 11 months, and it is thought likely that it will continue until the end of 1987.

13. It is, therefore, an enormous trial arid without precedent in Hongkong’s legal history. The foundation of the Attorney's submissions is that it is important that all reasonable steps should be taken to ensure that that trial proceeds to an equitable conclusion, and that the defendants in it should receive a fair trial, unaffected by avoidable prejudice arising from circumstances outside the evidence which is put before that jury.

14. On the 6th January of this year, the solicitors for Mr. George Tan addressed a letter to the Director of Public Prosecutions, in which they expressed their concern at the effect which the trial of Mr. Shamsudin, with its resultant publicity; might have on their client.

15. They put forward two suggestions: firstly, that the trial of Mr. Shamsudin should be postponed until the jury had reached their verdict in the Carrian trial; alternatively, that some other steps should be taken to minimise the prejudice which might be caused to Mr. Tan.

16. The Crown has taken the view that it would be wrong, in view of the circumstances in which Mr. Shamsudin returned to Hongkong and indeed on general principles, that he should have to wait in custody until 1988 at the earliest before he knew what his fate was to be.

17. With this view I entirely agree.

The Application

18. However, the Attorney-General has moved this application for restrictions to be placed on the reporting of this trial. He does not seek a total ban on the reporting of the Shamsudin trial, but a partial ban. What he urges upon me is that there should be a postponement of the publication of those parts of the Shamsudin proceedings which would cause prejudice to the Carrian defendants, until after the conclusion of their trial.

19. Counsel for Mr. Tan, on the other hand, sought a full ban on all reporting of the Shamsudin proceedings until the conclusion of the Carrian trial. In this he was supported by counsel for Mr. Bentley Ho, another of the Carrian defendants. Both base their preference - if I may so describe it - for a full ban on a number of reasons, among them the sheer difficulty of devising a formula for restricting reporting which would be both workable and effective.

20. Counsel for the South China Morning Post, understandably if I may say so, vigorously opposed any form of restriction on the reporting of the Shamsudin case.

21. Counsel for Mr. Shamsudin himself also opposed any restriction.

22. In considering the correct course which I should adopt I assume - though this must be a somewhat superficial assumption since my knowledge of the details of the Carrian case is limited to what I have read in the press - that a full report of the Shamsudin proceedings will implicate some of the Carrian defendants in the conspiracy to defraud and bribery charges faced by Mr. Shamsudin, and that the Shamsudin trial will involve the disclosure of evidence allied to some of that which has been put before the jury in the Carrian trial. I will also assume that a member of the Carrian jury, if he were to read reports of the Shamsudin proceedings, would link the latter proceedings to some extent with the matters which are before him.

Possible restrictions

23. I have, I think, in view of the way in which the submissions have been presented to me, to consider three possibilities: first of all, that there should be no restrictions at all on reporting save, of course, the usual ones, namely, that reporting of the Shamsudin proceedings, like reporting of all other criminal proceedings, must be fair and accurate.

24. Secondly, I must consider the possibility of a full ban on reporting until after the Carrian trial, and perhaps until even after what has been described as the severed indictment, which is another indictment faced by some of the Carrian defendants, is dealt with.

25. Thirdly, should there be a partial ban on reporting until after the Carrian trial.

Ban on reporting

26. The law which governs a full ban on reporting is to be found in those cases which deal with the court’s power to sit in camera, because a full ban on the reporting of proceedings, whether permanently or temporarily, is an aspect of the general power of the courts to prevent publicity in exceptional circumstances. It is, therefore, proper to look, as the Attorney invited me to do, at those cases which deal with the power of the courts to sit in camera.

27. Sitting in camera is a grave step for a court to take. It offends perhaps the most important single fundamental principle of the common law system, namely that trials should take in public, where their conduct is subject not only to the scrutiny of members of the public, who are entitled to enter and listen, but also to that of the press, with the essential discipline that publicity necessarily forces upon judges and courts.

28. These principles have been stated and restated in many cases. It is not, I think, necessary for me to rehearse them in detail, though I will refer to the House of Lords case of Scott v Scott (1913) AC 417, where the main principle is set out in the speech of Viscount Haldane at page 435.

"Whatever may have been the power of the Ecclesiastical Courts, the power of an ordinary Court of justice to hear in private cannot rest merely on the discretion, of the judge or on his individual view that it is desirable for the sake of public decency or morality that the hearing should take place in private. If there is any exception to the broad principle which requires the administration of justice to take place in open Court, that exception must be based on the application of some other and overriding principle which defines the filed of exception and does not leave its limits to the individual discretion of the judge."

29. It is true, of course, that a hearing in camera as such is sought by no one, rather a ban on the reporting. But such a ban would have the effect of removing one of the two important reasons for open trials, that is to say, the ability of the press to report and comment freely.

30. I mention in passing, as an example of the desire of the legislature of Hongkong to preserve the position of the press in the reporting of trials, Section 122 of the Criminal Procedure Ordinance. This section was enacted in 1968, at a time when the courts were obliged to operate against a background of civil disturbances, one feature of which was a sustained attempt to disrupt judicial proceedings.

31. This section empowers a judge or magistrate to close his court, and indeed the Court building as a whole, to the public if the: interests of justice, public order or security so require.

32. It is interesting to note that it does not include any power to exclude the press, so that the full reporting of trials would continue even though the public was excluded.

Postponement of publication

33. The available authorities on the power to postpone the publication of criminal proceedings are sparse. There are only two to which I have been referred, one in which the court ordered a postponement of any report of proceedings for a specified period; the other in which it ordered a partial restriction of reporting for a limited period.

34. The first of these is R v Clement, a 1821 case, which is reported in Volume 106 of the English Reports at page 918.

35. In that case, a number of defendants were charged with high treason in the same indictment. Their-trials, however, were severed, on their application, and were to be conducted one after the other.

36. The Lord Chief Justice ordered that there should be no publication of reports of proceedings in any one of those trials until the other trials, of those charged in the same indictment, had been completed.

37. This power was referred to and approved by the House of Lords in the Scott case, to which I have already referred.

38. The only precedent brought to my attention, which deals with a partial restriction, is that of R v Poulson, in 1974.

39. This is an unreported case and counsel have had to rely on an extract from an article written in The Times newspaper by The Times' legal correspondent, a somewhat unusual source for a case on which considerable reliance has been placed.

40. Were that the only reference to the Poulson case I would have been extremely reluctant to follow it as representing the true common law power of the courts in this respect. It has, however, been given the stamp of approval by one of the masters of the common law, Lord Denning, in The Queen against Horsham Justices (1982) 1 QB 762.

41. At page 791, Lord Denning considers the question of the circumstances in which the publication of a fair and accurate report would be a contempt at common law, saying: -

“It has long been settled that the courts have power to make an order postponing publication (but not prohibiting it) if the postponement is necessary for the furtherance of justice in proceedings which are pending or imminent. It was so held in Rex v. Clement …”

42. In a later paragraph, at page 792, he adds:

"Yet another instance at common law may arise when two men are jointly indicted but tried separately. Then it may be necessary to make an order postponing publication, as in Rex v. Clement … Similarly, when there is another case going on at the same time, such as happened in 1974 in

Reg. v. Poulson (unreported) … Waller J. gave a warning in open court that certain items of evidence given at the trial should not be published because of the risk of causing prejudice to other criminal proceedings which had already begun."

43. So that part of the Horsham judgment confirm a power which appears never to have been reported as used until 1974, by reference to an unreported case which, when examined to such extent as is possible from the material available, presents substantial. difficulties.

44. It appears that the judge, having indicated to the press that, if they reported the evidence of the first trial they ran the risk of committing contempt in the second, suggested to counsel that the simplest way of dealing with the matter was for them to draw his attention to matters which might be prejudicial to some other person at some other trial.

45. The judge, therefore, appears to be offering himself as a censor.

46. Who would perform that task in our circumstances?

47. Mr. Justice Waller, the Poulson judge, was to conduct both that trial and the other trials.

48. I know insufficient of the Carrian trial to be able to operate such a formula effectively.

49. I suppose the Carrian trial judge could be asked to do it, though he would be in difficulty in that he would not know what was in my mind when I issued the direction.

50. Nevertheless, in spite of these misgivings which I have expressed, I must, in view of the Horsham case, take the view that a power at common law to postpone reporting a part of proceedings seems to exist. That power is now enshrined in statute in the Contempt of Court Act 1981. But in Hongkong, where that statute does not apply, it is necessary still to refer to the common law as it was before 1981.

Exercise of discretion (General)

51. Having accepted that the power does exist, I must decide whether I should exercise it. In so doing I give full weight to the observations of Lord Widgery in The Queen against Socialist Worker Printers and Publishers Ltd (1975) 1 QB 637.

"The real reason why I think Mr. Waterhouse's argument cannot stand is because there is such a total and fundamental difference between the evils which flow from a court sitting in private and the evils which flow from pieces of evidence being received in the way which was followed in the case. The great virtue of having the public in our courts is that discipline which the presence of the public imposes upon the court itself. When the court is full of interested members of the public, as indeed one can say it is today, it is bound to have the effect that everybody is more careful about what they do, everyone tries just that little bit harder and there is a displinary effect on the court which would be totally lacking if there were on critical members of the public or press present."

52. The burden - and it is a substantial one - must lie on those who seek a court order which offends what I perceive to be the fundamental rule: that criminal trials must be conducted publicly, and should be reported fully and fairly, for the reasons so well expressed by Lord Widgery. I think that these same principles apply to a partial restriction on reporting as they do to a sitting in camera or to a ban on all reporting.

53. The Kray case, to which I have referred, shows how an experienced English judge viewed the likely effect of publicity, about an earlier trial, on a jury in a later one. He was dealing with a submission that a surge of newspaper publicity about a previous trial would lead jurors to be prejudiced against the accused.

"I can see no reason why a newspaper should not report what happens in court, even though there may be other charges pending. The reporting of trials which take place in open court is an important part of the functions of a newspaper, and it would not be in the public interest, in my judgment, if newspapers desisted from reporting trials, and from reporting verdicts and sentences in those trials, merely because there was some indictment still to be dealt with. What is more, the mere fact that a newspaper has reported a trial and a verdict which was adverse to a person subsequently accused ought not in the ordinary way to produce a case of probable bias against jurors empanelled in a later case. I have enough confidence in my fellow-courtrymen to think that they have got newspapers sized up just as they have got other public institutions sized up, and they are capable in normal circumstances of looking at a matter fairly and without prejudice even though they have to disregard what they may have read in a newspaper. So, the mere fact that an earlier trial had been reported at length in the Press would not, in my judgment, amount to establishing a prima facie case of the probability of bias or prejudice in anyone summoned to attend as a juror for a later trial.”

54. It is, after all, a not uncommon situation for one co-defendant in a criminal trial to plead guilty and to be sentenced after a public recital of the facts on which the Crown relies. Other defendants, who may well have been referred to in that recital, are tried subsequently. I know of no instance in which, in those circumstances, any restriction has been placed upon reporting in Hongkong.

55. Sometimes, one defendant faces a series of trials for various offences, some linked and some not. I am aware of no instance in which the publication of details of earlier trials has been banned, postponed or restricted in those circumstances.

56. Sometimes, one defendant is tried because other defendants cannot be arrested. I have heard of no instance in which any restriction or ban on reporting has been placed on the reporting of the first trial.

57. It is argued, however, that this case is different. Different because of its scale. Different because of the disastrous consequences to the defendants, and indeed to the Crown, if for any reason the Carrian trial were to be aborted.

58. Different, because this is a case in which the Carrian trial is already in progress, thus enhancing the risk that reports of the Shamsuddin case may have an adverse effect upon the jury.

Considerations

59. In reaching the conclusion to which I have come, I have given weight to a number of factors. The postponement of publication, whether in whole or in part, would be likely to last for twelve months or thereabouts; that is the time at which the jury will be asked to reach their verdict in the Carrian trial. Is it likely that what they read in the newspapers in January, 1987, will seriously prejudice their minds, when considering different charges in December, 1987 or January, 1988?

60. If the jury were due to reach a verdict next week in the Carrian trial, the arguments for a postponement of publication or for some restriction on the publication of the Shamsudin proceedings would be that much more powerful.

61. It is, as was emphasised in the Cray case, the task of a trial judge to warn the jurors to listen to and take into account only the evidence which has been put before them in their trial. It must be accepted that frequently jurors do hear, outside the court, comments on the cases in which they are sitting. A judge must necessarily trust them to disregard anything which they do hear outside the court about the matters which they are trying. It is standard practice for a judge in his direction to warn a jury accordingly. I have no doubt that the very experienced judge who is presiding over the Carrian trial will follow that practice.

62. I must also give weight to the undeniable fact that there is an intense public interest in the Shamsudin trial, as indeed there has been in the Carrian trial. It involves a conspiracy to defraud on a huge scale. A conspiracy to defraud, among others, the BMFL, the Bank Bumiputra and the Government of Malaysia. There is, thus, an international, as well as a local interest, and it is, in my judgment, of the greatest importance that there should be no room for speculation that anything which is not wholly in accordance with our usual procedures of criminal justice, should be thought to have taken place. Any unusual form of restriction on the Press is all too likely to give rise to speculation of one kind or another.

63. This application, as it was presented by the Attorney General, was for a form of limited censorship of the proceedings, on what I should describe as the Poulson model. This formula seems to me to put the Press into an impossible position, leaving them uncertain as to what they could publish and what they could not, without the risk of contempt proceedings based on an infringement of a direction which I had given.

64. A complete ban on reporting - though objectionable for far stronger reasons - would, at least, be readily understood by the Press, and could be made effective, but I think it would be wholly unreasonable to expect reporters to decide whether passages from, for example, Mr. Carman's address in mitigation in the Shamsudin case, could amount to an infringement of an order for the restriction of reporting on the lines of the draft which was submitted to me. I hasten to say that it was submitted to me only as a basis for discussion, and possible revision.

65. Having considered it, and various alternatives which I drafted myself, I am forced to the conclusion that it would be extremely difficult, if not impossible, to devise a restriction which would be both effective and fair to the members of the Press who had to operate it. Nor, may I say, would I welcome the task of being used as a censor to give approval to drafts of reports of the Shamsudin proceedings which a prudent reporter might wish to clear with me.

66. If Poulson is to constitute a precedent, I think that it must be given the most limited use, in circumstances where a simple, workable form of censorship can be devised, as I do not think is the case here.

67. I also take into account the fact that there has already been some publication of charges in which some of the Carrian defendants and Mr. Shamsudin are joined together. It was argued that the court, apart from the many other objections advanced, ought not to attempt to ban the publication of matter which, to some degree, has already appeared in the newspapers, a bundle of which was presented to me. I note that all those reports pre-date the swearing of the Carrian jury, so that it is less likely that they would have read them than would be the case if they had been published after the jury had been assembled, at a time when, naturally, the attention of members of that jury would be more concentrated on reports concerned with the defendants before them.

68. Nevertheless I accept that the publication now of material linking Mr. Shamsudin with the Carrian defendants would be likely to have more of an impact on a Carrian juror who read them than it would have done if he had read the earlier reports a year ago. An important consideration is that the public interest is best served by full and accurate reporting of open criminal trials. In Hong Kong circumstances, it is vital that such fundamental safeguards should not be lightly eroded at a time when they are becoming steadily more important.

69. There is power to sit in camera which effectively prevents all reporting. There is, though I am glad to say it is very seldom used, a power to postpone any pub1ication. There is apparently on the basis of the Poulson case, a power to censor reports and so restrict publication of part of the proceedings. These powers should be exercised only if the balance falls clearly in favour of secrecy, or of a postponement of publication in whole or in part.

70. While I accept that the full publication of the proceedings against Mr. Shamsudin may well cause some immediate prejudice to the Carrian defendants, for the reasons which I have already discussed, I do not accept that this will be so substantial, or of such lasting effect, that the interests of those defendants should override the major requirement of open justice. The balance of arguments, in my judgement, is firmly in favour of full publication.

71. I therefore refuse the application. I direct that there should be no restriction on the reporting of this application or of the trial of Mr. Shamsudin

72. I will conclude by reminding the Press, respectfully, that their reports, as always, are protected only so long as they are full and accurate.

73. We certify that to the best of our skill and ability the foregoing is a true transcript of the shorthand notes taken of the Ruling in the above proceedings.