SECRETARY FOR JUSTICE v. LI PANG KAY AND ANOTHER

HCMP 1851/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1851 OF 2013

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AND

HCMP 1852/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1852 OF 2013

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(Heard Together)

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R E A S O N S   F O R   S E N T E N C E

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A.  INTRODUCTION

1.  These are the Secretary for Justice’s applications for orders of committal against:

(1) Mr Li Pang Key (the 1^st defendant in his capacity as the editor of Sharp Daily) and Sharp Daily Ltd (the 2^nd defendant in its capacity as the proprietor and publisher of Sharp Daily) in HCMP 1851/2013 (“the Sharp Daily Proceedings”).

(2) Mr Cheung Kim Hung (the 1^st defendant in his capacity as the editor of Apple Daily) and Apple Daily Ltd (the 2^nd defendant in its capacity as proprietor and publisher of Apple Daily) in HCMP 1852/2013 (“the Apple Daily Proceedings”).

2.  The applications arose from Sharp Daily’s and Apple Daily’s publications, in prominent places in the respective newspapers, on 20 March 2013 of an interview with Chau Hoi-leung Henry (“Chau”) after he had been arrested and charged, together with Tse Chun-kei (“Tse”), with the murder of Chau’s parents (“the Deceased”).  In relation to Apple Daily, a video clip concerning the interview with Chau also appeared on its website on or around 20 March 2013.  I will for convenience refer these two publications respectively as the “Sharp Article” and the “Apple Article”, and collectively as “the Articles”, and the video the “Apple Video”.

3.  The interview was conducted while Chau was kept in jail custody at Siu Lam Psychiatric Centre (“SLPC”).  Both of the Articles published what Chau had told the visiting reporters of Apple Daily at the interview concerning the double homicide of the Deceased.

4.  After a series of inter partes correspondence between the parties, on 7 August 2013, the Secretary for Justice commenced these proceedings against the defendants citing them for contempt of court on the ground that the publications of the Articles and the Apple Video were likely to prejudice the administration of justice relating to the then pending criminal trial of Chau.

5.  Soon after the issue of these proceedings, the defendants through their solicitors’ letter dated 13 September 2013 formally informed the Secretary for Justice that they admitted liability for contempt.  What was left under these proceedings was thus the question of sentence.  The defendants also later offered their unreserved apology to the court under the respective affirmations of Mr Li and Mr Cheung filed on 4 October 2013 in these proceedings.

6.  At the hearing of these contempt proceedings on 16 September 2015 for sentence, the defendants again through their leading counsel made an open apology to the court for the contempt they committed.

7.  After hearing submissions on both sides, I passed the following sentences on the defendants at the hearing:

(1) Under the Sharp Proceedings:

(a) Mr Li as the chief editor of Sharp Daily, a fine of HK$60,000.00.

(b) Sharp Daily Ltd as the publisher and proprietor of Sharp Daily, a fine of HK$150,000.00.

(2) Under the Apple Daily Proceedings:

(a) Mr Cheung as the chief editor of Apple Daily, a fine of HK$90,000.00.

(b) Apple Daily Ltd as the publisher and proprietor of Apple Daily, a fine of HK$250,000.00.

8.  I also ordered the defendants to pay the Secretary for Justice’s costs on an indemnity basis.

9.  I gave some brief reasons for these sentences at the hearing and indicated that I would give more detailed written reasons later.  This I now do.

B.  RELEVANT FACTS

10.  The background facts are not in any real controversy, and they can be briefly summarised as follows.[1]

B1.    Background

11.  On 7 March 2013, Chau and his brother Chau Hoi-ying visited the Western Police Station to report that their parents (the Deceased) had gone missing for several days.  Chau told a police officer that he last saw the Deceased on 2 March 2013 in Mongkok.

12.  In the evening on 14 March 2013, the police interviewed Chau and his brother.  Subsequently, the police received a report from a member of Chau’s “WhatsApp” chat group that he had received “WhatsApp” messages that appeared to have originated from Chau’s mobile phone in which Chau appeared to have made statements to the effect that he, together with another person, had killed the Deceased.

13.  On 15 March 2013, Chan and Tse were arrested for the suspected double homicide of the Deceased.  They were detained for further police investigation and were jointly charged with two counts of murder on 17 March 2013.  They appeared before the Kowloon City Magistracy on 18 March 2013.  No plea was taken and the case was adjourned.

14.  After their first appearance in court on 18 March 2013, Chau and Tse were remanded in jail custody at SLPC and Lai Chi Kok Reception Centre respectively.

B2.   Newspaper reporting

15.  Since the arrest of Chau and Tse on 15 March 2013, the local media had widely reported the double homicide case.

16.  On 20 March 2013, the Sharp Article was published at page A2 of Sharp Daily.  It bore the title “收押所專訪 肢解父母疑兇告白”.  The Sharp Article reported in detail what Chau had allegedly told the reporters of Apple Daily during his interview with the reporters on 19 March 2013 whilst being remanded at SLPC.

17.  The Sharp Article reported, among others, that Chau had confessed to the Apple Daily reporters during the interview that he had killed the Deceased.  In particular, it reported that:

(1)  Chau confessed to killing the Deceased and admitted to being a psychopath:

“年僅29歲的周凱亮昨向到訪的記者冷笑一番後，便以當日在西環寓所接受訪問的語調，分析殺人的情況，「你可以當我唔正常，係psychopath (心理變態者)。…」”

(2)  Chau described, in vivid terms, the process of killing the Deceased:

“白刀子進，紅刀子出，場面血淋淋，他也點頭說：「畫面好震撼！」問他有沒有受過良心責備，是否依然睡得好，他反說：「心情好平靜。」”

(3)  Chau said that he had committed a serious mistake (ie, referring to the killing the Deceased), which he regretted, and that if he could turn back the clock, he would not have made that mistake.

“對於鑄成大錯，他微微垂頭表示後悔，又說可以回頭，就不會再做同一件事。”

(4)  Chau explained the motive of killing the Deceased was not what the public thought it was:

“問他是否與父母因錢銀爭拗才動殺機，他強調並非為錢。對於外界的指摘，他說：「批評唔緊要，佢哋又唔係我屋企人，唔需要向佢哋交代。」”

18.  Also on 20 March 2013, the Apple Article was published at page A1 of Apple Daily.  The Article bore the title “獄中專訪變態男講述殺父母一刻：少少慌亂，但平靜…”  The Article reported in detail what Chau had allegedly told the reporters of Apple Daily when the reporters interviewed him on 19 March 2013 at the SLPC.

19.  The Apple Article reported, inter alia, that Chau had confessed to the Apple Daily reporters during the interview that he had killed the Deceased.  In particular, the Apple Article stated that:

(1)  Chau had confessed to his friends via “WhatsApp” to having killed the Deceased and that he is a psychopath:

“其實他早前以證人身份在警署就父母失蹤一事協助調查時，以WhatsApp向機友自爆殺了父母，也曾寫下「I am a psychopath」，又自言基於童年時的經歷，不想父母留下。”

(2)  Chau described vividly the process of killing his parents:

“有關殺人經過，他用一個割頸的手勢代替言語。白刀子進，紅刀子出，面前的始終是養育自己的至親，血淋淋的場面，聲嘶力竭，他也點頭說「畫面好震撼」。”

(3)  Chau explained that the motive of killing his parents was not what the public thought it was:

“有關報導指他與父母因錢銀爭拗而動殺機，他卻強調自己並非為錢，聲稱事實並非公眾想像得那般簡單。”

(4)  Chau said that he had committed a serious mistake (ie, killing his parents), which he regretted, and that if he could turn back time, he would not have made that mistake.

“但對於自己一手鑄成的大錯，他微微垂頭表示後悔，又說若可以回頭從頭再來，便不會再做同一件事 (殺人)。”

20.  On or about 20 March 2013, the Apple Video was uploaded onto the website of Apple Daily.  The defendants in the Apple Daily proceedings confirmed in the written representations to the Secretary for Justice dated 20 June 2013 that the Apple Video was indeed uploaded onto that website on 20 March 2013 by the 2^nd defendant.

21.  The Apple Video essentially repeated what was reported in the Apple Article but included different wording and contained graphics.

B3.   The interview and the publications

22.  The events that had led to the interview and the publications are as follows.

23.  It is the defendants’ evidence that, after the arrest of Chau and Tse, the Apple Daily’s editorial board (with Mr Cheung as the chief editor) instructed their reporters (“the Reporters”) to “follow up” the matter.  The Reporter went to the SLPC on 19 March 2013 and represented to the officers of the Correctional Services Department (“CSD”) on duty there that they were Chau’s friends.  As a result, they were allowed to visit and interview Chau.

24.  The gist of the evidence of the officers of the CSD concerning the Reporters’ whole visit to the SLPC and the interview with Chau is as follows:

(1)  The SLPC advises all inmates detained in the SLPC to fill in a form with the names of their visitors.  The names will be inputted into the SLPC’s computer system so that the staff could verify the identities of the visitors when necessary.

(2)  There are circumstances (for instance where an inmate has not or does not fill in the relevant form) in which details of the visitors may not be recorded in the SLPC’s computer system.  Nevertheless, a visitor could still inform the CSD staff at the SLPC’s gate lodge the name of the inmate he wishes to visit and their relationship and the staff would record down such information.  Another CSD staff would then verify the information at a face-to-face meeting with the inmate concerned and check whether the inmate wants to meet the visitor.  If the inmate knows the visitor and wants to meet him, the inmate would be asked to put the visitor’s information down in a declaration form.  The visitor and the inmate would then be brought into the visiting room to identify one another and a CSD staff would ask the inmate again whether he knows the visitor and if the inmate says he knows the visitor and wishes to meet him, then they would be permitted to meet.

(3)  In respect of Chau’s case, Chau was sent to the SLPC on 18 March 2013.  As the Rehabilitation Unit did not interview Chau on that day, he was not told he could add the names of his family and friends on the list of visitors.  As a result, when the Reporters came to the SLPC in the morning of 19 March 2013 to ask to visit Chau, there was no record of Chau’s list of visitors.

(4)  At around 9:20am on 19 March 2013, the Reporters informed Mr Chan Chi-him, an Assistant Officer II of the CSD attached to the SLPC who was stationed at the barrier gate of the SLPC at that time, that they were friends of Chau and wished to visit him.  Mr Chan took down their information and informed Mr Hung Ying-choi.

(5)  Mr Hung, an Assistant Officer II of the CSD attached to the SLPC who was on duty at the visit room of the SLPC on that day, entered the names and information of the Reporters obtained from Mr Chan into the computer but found no record of them.  In addition, Mr Hung discovered that no visitor’s name was recorded under Chau’s record.  Upon seeking instructions from the Duty Officer, MrHung instructed Mr Lau Ming-hei who was on duty as the visit room assistant to verify with Chau face-to-face whether he knows the Reporters.

(6)  Mr Lau then asked Chau in his cell whether he knows the Reporters.  Chau replied he knew both of them.  Mr Lau asked him to fill in the names of the Reporters in a declaration form and state their relationship with him, which Chau did, claiming they were his friends.  Mr Lau then informed Mr Hung that Chau knows the Reporters and MrHung instructed Mr Lau to take Chau to the visit room, which Mr Lau did.  Upon arriving at the visit room, Mr Lau arranged for Chau to sit at window number 6.

(7)  Upon receiving Mr Lau’s reply that Chau knows the Reporters, Mr Hung instructed Mr Chan to let them into the SLPC to visit Chau.  When the Reporters arrived at the visit room, Mr Hung asked for their Hong Kong Identity Cards and checked their identity and also checked the information on the cards against the information taken down by Mr Chan at the barrier gate of the SLPC.  Having checked those details, MrHung arranged for the Reporters to wait in the waiting room inside the visit room.  After Chau was seated at window number 6, Mr Hung took the Reporters there as well.  The time then was around 9:44am.

(8)  Before the visit began, MrHung asked Chau over the headset of the intercom whether he knew the Reporters.  Chau did not answer.  Mr Lau then repeated the question to Chau and Chau replied that he did.  Mr Hung repeated the question to Chau once more and Chau answered that he knows the Reporters.

(9)  The Reporters and Chau spoke and the Reporters left the visit room around 9:59am.  Throughout the process, they never informed any of the officers of the CSD that they were reporters who were there to interview Chau.

25.  The Reporters’ whole visit to the SLPC and their interview with Chau were recorded on the SLPC’s CCTV system.  The recorded footage of the interview showed – verified by the transcript of the recorded interview – that during the interview the Reporters informed Chau that they were reporters from Apple Daily.  According to the transcript of the recorded interview, many of the materials obtained by the Reporters at the interview appeared in the Articles and the Apple Video.

26.  As mentioned above, the Articles and the Video were published on 20 March 2013. It is Sharp Daily’s evidence that its editorial board was not involved in the decision to publish the interview and the newspaper simply (in accordance with its usual practice) adopted and reported (with modifications) the Apple Article in the form of the Sharp Article.[2]

C.     THE SENTENCE

27.  It is trite that at common law, it is a contempt of court to publish or do other acts which are likely to prejudice or interfere with pending criminal proceedings: AG v Times Newspaper Ltd [1974] AC 273 at 309B-H; AG v Cheung Kim Hung [1997] HKLRD 472 at 477F-J.  The relevant time for determining whether or not a publication creates a real risk of prejudice is the time of publication: AG v Cheung Kim Hung at 480D.

28.  Relevantly for present purposes, publications held by the court to have created a real risk of prejudice to criminal proceedings include publications that reflect the character of an accused, publication of confessions and publications that assert an accused’s guilt[3]. It has been held that premature publications of confessions, whether it turns out to be true or not, are regarded as a real threat to the court’s impartiality and amount to serious contempt.  This is so as premature publication may prejudice an accused of his potential defence, and more generally because it undermines the public’s confidence in the due administration of justice[4].

29.  It has also often been said that “trial by newspapers” may amount to contempt because of the danger it poses to a fair trial.  There is no guarantee that the published facts are true (and in particular there being no opportunity to cross-examine or to have the evidence corroborated) or that they are admissible at trial.  Hence, such publications are capable of posing a real risk of prejudice to particular criminal proceedings[5].

30.  There is no doubt that the present contempt committed by the defendants was a serious one.  This is rightly accepted openly by Mr McCoy SC at the hearing on behalf of the defendants.  And the defendants through leading counsel also openly offer their apology again to the court.  Mr McCoy also accepts fully that the present case does not concern any questions of freedom of press or speech as newspapers must also act within the boundaries of the law, including the law on contempt.  As underlined by their early admission of liability, the defendants unreservedly accept that they had in the publications of the Articles and the Apple Video stepped over that boundary.

31.  The relevant principles relating to sentencing in this respect are also not in dispute.  They are as submitted by the Secretary for Justice as follows.

32.  The court may, as an alternative or in addition to committing the contemnor to prison, impose a fine: Order 52, rule 9; Halsbury’s laws of Hong Kong (2^nd ed, 2015) vol 16, at pp 837 - 838.  The sentence must of course commensurate with and reflect the seriousness of the contempt.

33.  In this respect, the seriousness of the contempt can be looked at from two angles:

(1)  First, by the likely prejudice to the fair trial of an accused.

(2)  Second, from the point of view of what may be called the culpability of those concerned.

See: R v Thomson Newspapers Ltd ex p AG [1968] 1 WLR 1, at 4D - E, per Lord Parker CJ.

34.  For the first angle, the most serious form of contempt is the sort of case where a photograph is published of an accused, and adverse comment is made on him as an accused person in a particular trial: R v Thomson, supra, at 4E-F.

35.  For the second angle, the most serious contempt is the publication of matter done intentionally with the very object of prejudicing a fair trial: R v Thomson, supra, at 4H.

36.  Moreover, the court in the sentencing exercise concerning contemptuous publication has to consider the nature of the contempt, whether it happened by mistake or deliberately, the degree of the distribution of the publication, the effect on the administration of justice, and if the defendant is an organisation, its size: R v Evening Standard Co Ltd ex p AG, The Times, 3 November 1976, per Lord Widgery LCJ.

37.  Although sentencing is entirely a matter for the court, as fairly accepted by Mr Jat SC (together with him Mr Anthony Chan) for the Secretary for Justice, as shown by the authorities for contempt of this type, sentence for imprisonment is reserved for the most or very serious cases: see for example SJ v The Oriental Press Group Ltd [1998] 2 HKLRD 123.  In this respect, leading counsel however emphasizes that the sentence must reflect the gravity of the contempt in the present cases, which was made more serious in light of the following:

(1)  There was a real risk of prejudice to the administration of justice of the pending jury trial of the Chau and Tse because:

(a)  The Articles were likely to be widely read by the public.  This is so as (i) the two newspapers had wide circulation at the time of the publication of these articles.  According to Sharp Daily (which was a free newspaper), its circulation between October and December 2012 was 593,943 copies.  For Apple Daily, its circulation between January and June 2012 was 251,895 copies; (ii) the Apple Video was posted online and is likely to be easily accessible by a large number of people.  The video was accessible online until at least 20 May 2013;[6] (iii) the news of the murders and the arrest of Chau and Tse were at that time widely reported by all the newspapers in Hong Kong and the matters had thus drawn a lot of attention from the public; and (iv) the respective headlines of the Sharp Article and the Apple Article prominently and sensationally proclaimed that the articles were a report on an exclusive interview at a detention centre of a “confession” of the suspect who dismembered the bodies of his parents (see the quotes above).

(b)  In the circumstances, a reasonable reader reading these articles would likely to be of the impression and belief that (i) Chau had been charged with murder of his parents; (ii) he had confessed to having murdered his parents and dismembering their bodies; and (iii) he was a cold-blooded psychopath who knew what he was doing. These would likely prejudice the administration of justice in relation to the pending criminal trial by jury.

(2)  Further, insofar as the case in Apple Daily Proceedings is concerned, the defendants were more culpable since:

(a)  Apple Daily had carried out “investigatory journalism” as instructed by the editorial staff to interview Chau for the purpose of publishing it.  This shows that the defendants had purposively and actively sought to obtain these materials for publication despite obviously knowing that a criminal trial would be pending.

(b)  Apple Daily and Sharp Daily had in fact published the fruits of the investigation in the Articles and the Apple Video.

(c)  This is the second time Mr Cheung and Apple Daily Ltd committed a contemptuous publication of an article in respect of a trial. In 1997, Mr Cheung as the editor of the Next Magazine and its publisher were held to be in contempt in publishing an article which was held to have a real risk of prejudicing the administration of justice of a civil defamation jury trial.  The article was published during the trial on the evening before counsel’s closing speeches.[7]  Mr Cheung was fined by Rogers J (as the learned former VP then was) HK$5,000.00 and the publisher HK$25,000.00. In 2000, Apple Daily Ltd was held to be in contempt in publishing an article during the course of a murder trial which made various adverse allegations of the defendant with no evidential support and which did not form any part of the prosecution’s case.[8] Apple Daily Ltd was fined HK$100,000.00 by Gall J.

38.  In relation to paragraph 37(2)(a) above, it is Mr Jat’s submissions that the manner in which investigatory journalism was carried out by Apple Daily in the present case gravitates the defendants’ culpability.  It is the Secretary for Justice’s position this is a case where the editor specifically and purposefully instructed the reporters to “follow up” the matter with Chau when he was held in custody at SLPC and then later published the fruits of the interview when the trial was still pending.  This demonstrates an increased culpability on the part of at least the defendants in the Apple Daily Proceedings in committing the contempt.  In this respect, it is noted that the evidence shows that Sharp Daily, which was a sister newspaper of Apple Daily, only shared the materials from Apple Daily in publishing the Sharp Article.  Sharp Daily’s editorial staff and Mr Li were not involved in the decision to instruct the reporters to follow up the matter with Chau.[9]

39.  Mr McCoy SC for the defendants submits that investigative journalism by itself should not be held against the defendants as this is a form of journalism that should be welcome in a healthy and pluralistic society.  Leading counsel further submits that the gruesome double homicide of one’s own parents inevitably attracted significant media coverable and it is the duty of the press to try covering it, including the motives behind the crime committed by Chau.  It must be noted (emphasized Mr McCoy) that albeit the reporters claimed to the officer at SLPC to be the friends of Chau seeking to be allowed to visit him, it was eventually Chau who himself confirmed that they were his friends and he was willing to meet them before they were allowed in.  Moreover, after the reporters had identified themselves to Chau to be reporters, Chau voluntarily continued with the interview.  Mr McCoy asks rhetorically that, had the Articles and the Apple Video been published on the day of sentence of Chau and Tse, they would have been valuable companion pieces to the sentencing remarks of the trial judge.  Thus, the investigation itself should not be taken as something against the defendants for the purpose of sentencing.

40.  However, as I understand from Mr Jat’s submissions, the Secretary for Justice is not critical of investigative journalism per se.  What he is submitting is that, in the context of the present cases, what is more culpable is the conduct that the editor had proactively and purposively sought to seek out Chau for the purpose of publishing the materials obtained therefrom when knowing that there was still the pending criminal trial.  This should not be endorsed and which should add to the defendants’ culpability in relation to the contempt.

41.  I would consider this aspect of culpability at paragraph 49 below.

42.  Bearing the above matters in mind, I have on the other hand taken into account the following mitigating factors in the defendants’ favour in passing the above sentences.

43.  First, the Articles and the Apple Video were published on 20 March 2013, soon after Chau and Tse first appeared before the Magistracy on 18 March 2013.  At that time, it was at the commencement of the criminal proceedings against Chau and Tse and no dates had yet been fixed for their criminal trial.  In light of these, at the time of the publication of the Articles and the Video, the jury trial of Chau and Tse was likely to be at least still many months away.  Then, on or about 19 April 2013, the Articles were removed from the website of the newspapers, and at the latest by 20 May 2013, the Apple Video was no longer accessible online by the public.  In these circumstances, I accept (as submitted by Mr McCoy) that as assessed at the time of the publication, the likely prejudice that could be caused to the eventual trial was likely to be less serious than if the articles were published much closer to the trial.

44.  Second, I also accept the defendants’ evidence that, after this incident and the commencement of these contempt proceedings, the defendants had taken further legal advice and remedial steps to prevent the recurrence of similar contemptuous conducts.  These included requiring their editorial and staff members to attend in-house legal seminars conducted by counsel to better acquaint themselves with the underlying principles behind contempt of court and the practical ways to avoid including prejudicial elements in future articles.  The taking of these after-the-incident remedial steps to prevent the recurrence of a contempt of this nature is a mitigating factor that the court could take into consideration.[10]

45.  Third, as mentioned above, the defendants admitted liability for contempt as early as September 2013, and they offered their apology to the court in their affirmations filed in October 2013.  In offering their apology (which this court accepts), the defendants accepted that the publications of the offending Articles and Apple Video were not excusable and they created a real risk of prejudice to the pending criminal proceedings amounting to contempt of court. The defendants were also remorseful and accepted responsibilities for the contemptuous acts.[11] The court takes these into account as a mitigation factor.[12]

46.  Fourth, as to the previous records of contempt of Mr Cheung and Apple Daily Ltd, I accept the defendants’ submissions that those incidents occurred more than 10 years ago before the present incidents.  It shows that these defendants had in fact not been recommitting any such contemptuous acts for a long period of time. These previous records should therefore not be treated as a significant aggravating factor.

47.  This naturally leads me to Mr Cheung’s evidence as to why, despite his previous record of contempt in AG v Cheung Kim Hung, supra, he still decided to instruct the reporters to “follow-up” the matter with Chau and publish the interview notwithstanding that the criminal trial of Chau and Tse was still pending.  He gave the explanations at paragraphs 5 - 8 and 30 - 33 of his affirmation as follows:

“My previous contempt case

5. I was involved in a case concerning contempt of court on one previous occasion in 1997, when I was the editor of Next Magazine. There is now produced and shown to me marked ‘CKH-1’ a copy of the case report of Attorney General v Cheung Kim Hung & Another [1997] HKLRD 472.

6. In this case, Next magazine had published an article concerning a well-known economist and the legal expenses he had incurred in libel proceedings instituted against Eastweek magazine. The publication was found to be in wrongful interference with the due administration of justice in its reporting of facts that may improperly have influenced the jury, and at extremely close proximity to the proceedings. The offending article was published the night before counsel’s closing speeches. The publication of the article by Next magazine constituted a contempt of court and a fine was imposed.

The 2^nd Defendant’s previous contempt case

7. The 2^nd Defendant has also been involved in a case involving contempt of court on one previous occasion in 2000. There is now produced and shown to me marked ‘CKH-2’ a copy of the two case reports in the case of Secretary for Justice v Apple Daily Ltd & Anor. The first reported judgment of [2000] 2 HKLRD 704 is a judgment concerning the distinction between civil and criminal contempt and the right to silence, in contempt proceedings; and the second unreported judgment of HCMP 1926/2000 (Unrep., 22 November 2000) is the judgment containing the remarks of Gall J in sentencing and mitigation.

8. On this occasion, the Newspaper and its then editor, Mr. Ip Yut Kin, were found liable for contempt when an article containing certain prejudicial comments regarding the defendant were made the day after criminal proceedings had commenced. The jury had to be discharged as a result of this article. In that case the 2^nd Defendant was found in contempt of court due to the close proximity of the publication to the trial, and the risk of prejudice caused by the article. A find of HK$100,000 was imposed against the 2^nd Defendant.

…

30. While I accept that as an experienced journalist I should have, and indeed had some pre-existing knowledge of the law of contempt, I had held a mistaken belief/understanding (which has now been corrected by Senior Counsel) that publication of articles in considerable advance of a trial, would rarely, if ever, prejudice the outcome of a trial.

31. I had also mistakenly believed that the existence of standard jury directions given in all jury trials in Hong Kong regarding prejudicial publicity prior to the trial was an indication that there was already a sufficient safeguard against the risk of prejudice. There is now produced and shown to me marked ‘CKH-8’ a copy of the Specimen Direction on prejudicial publicity downloaded from the website of the Judiciary.

32. I also thought alternative and appropriately tailored jury directions could rectify or cure any potential prejudice caused by the publication of an article so far in advance of proceedings. I had therefore assumed that any content published in the Newspaper would have minimal or no impact and would not influence the jurors’ minds during the eventual criminal proceedings. I am further advised and verily believe that cases such as HKSAR v Kissel (Stay:Media) [2011] 3 HKLRD 1 have expressed the view that it is extremely rare for pre-trial publicity to cause such extensive prejudice as to require a permanent stay in the proceedings, and that such prejudice can usually be cured by properly tailored jury directions. There is now produced and shown to me marked ‘CKH-9’ the case report of HKSAR v Kissel.

33. I had learnt from my previous involvement in contempt proceedings as detailed at §§5-8 above that reports on ongoing or imminent proceedings can amount to contempt.  However, I did not know that reporting on events so many months, or even years before the eventual criminal proceedings could amount to criminal contempt.”

48.  In gist, it is Mr Cheung’s evidence that because of his mistaken understanding as to what the law on contemptuous publication was and his misplaced belief on the effect of the relevant standard jury directions that had led to his decision to publish the article.  In other words, it was not his conscious and positive intention to prejudice the pending fair criminal trial.

49.  I do have some reservation about these explanations, in the sense that, given his and Apple Daily Ltd’s respective previous contempt records, prudently Mr Cheung should have at least sought legal advice as to whether his above views were correct before proceeding with the publication of the offending materials. Despite such reservation, I am however prepared to accept that, relevant to the question of sentence, there was no positive intention on Mr Cheung to interfere, influence or prejudice the administration of justice.[13]  The culpability of Mr Cheung and Apple Daily Ltd in committing the contempt as submitted by Mr Jat at paragraph 41 above should therefore be viewed in this context.

50.  Balancing these mitigating factors against the matters highlighted by Mr Jat at paragraphs 37 to 41 above, I am of the view that the present publication contempt does not fall within those very serious type that calls for imprisonment.  At the same time, I regard the above fines that I have imposed as sentences appropriately reflect the degree of seriousness of the contempt in the present cases.[14]  The difference in the sentences between Mr Li and Mr Cheung takes into account the respective passive and active roles played by them in publishing the offending materials and the fact that Mr Cheung has a previous record of contempt.  The same considerations apply to the differences in the sentences between Sharp Daily Ltd and Apple Daily Ltd.

51.  Lastly, I would like to thank counsel on both sides for their helpful assistance in this matter.