ATTORNEY GENERAL v. JIM BIDDULPH AND OTHERS

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JUDGMENT

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1. In this matter, the Attorney General on the 2nd May 1984 applied for leave to make an application for committal for contempt of court ex-parte in relation to an article which had been published in the Honk Kong Standard on the llth April 1984. The order was sought against Mr. Jim Biddulph and the Hong Kong Standard Newspaper Limited and Mr. Alan Castro, the Editor thereof.

2. The application was heard on the 11th May and leave was granted.

3. The matter arose in this way. In March of this year, the trial commenced in courtroom No.8 of the High Court, before Mr. Justice O'Connor and a jury, of Mak Foon-than charge of murder. It was a case which attracted much public attention both within and without Hong Kong.

4. On 18th March, Mr. Justice O'Connor was invited and agreed to hear legal argument in the absence of the jury. According to the evidence of counsel for the Crown, Mr. Duckett, whose affidavit is before us, Mr. Justice O'Connor, immediately after the jury had been sent away and before the legal argument began, in express terms, warned all reporters in the courtroom that they could not 'directly or indirectly" report what happened in Court in the absence of the jury.

5. What the learned judge said has been exhibited before us, and the relevant passages are as follows:-

"Those of you present who are experienced press reporters will know that you cannot report what happens in the absence of the jury, certainly not until the whole trial is over. You cannot report what happens in the absence of the jury. We are now in the absence of the jury. You cannot report what happens from now or what happens until the jury is back. You may remain and listen but you cannot report directly or indirectly what happens in the absence of the jury.  I am sure you are all aware of that but in case you aren't I remind you.  So again I emphasize that you're all welcome to stay and listen but nothing that happens in the absence of the jury can be published either directly or indirectly."

6. The following afternoon, in view of certain events that had occurred, the learned trial judge again addressed the press and the representatives of the wireless and television systems. Again, what he said has been exhibited before us, and the relevant passages are as follows:-

7. Two things especially are to be noted. First, the phrase "trial within a trial" had never been used - in fact the Prosecutor had referred to a "voir dire". Second, the trial judge referred to the prohibition not only as to what was said but also as to "what happens in the absence of the jury"and "by stating that such and such happened".

8. In other words, the warning could have left no doubt in the minds of those present that, beyond stating that the judge was hearing legal argument in the absence of the jury, nothing ought to be published - not even the existence of a "vorir dire" or to give it its correct name, a "trial within a trial".

9. The reasons are clear, and were made clear by the learned trial judge on the 20th March when he said, "And the reason that it may not be published is in order to ensure a fair trial for the accused person, and that is the only reason. The same as in any other case before a jury. What happens in the absence of the jury is not published in order to ensure a fair trial for the Defendant, and that's all that is happening."

10. Despite the warnings the article complained of appeared in the Hong Kong Standard on the 11th April 1984. The article was in Mr. Biddulph's column which is entitled "Opening Doors". The first paragraph of the article bore the heading. "The Connecting Doors" and it commenced with the words. "This week's widest open door has been the evidence we have had of the amazing man-management policies of the Mass Transit Railway. The closed door has concerned the murder of a Malaysian banker many months ago. In a devious sort of way, the two are connected."

11. The next paragraph was headed "In Courtroom Number Eight". When describing the courtroom itself, Mr. Biddulph wrote "Although court number eight is the scene of one of the great Hong Kong dramas, we cannot report it. It is 'a trial within a trial'. In order that justice may be seen to be done, the press is allowed to sit in. But the jury is not. And so not a single word of the closed hearings can be reported. The argument is that, to do so, would prejudice the real trial, due to start in a few days. This all concerns the death of a man from a Malaysian bank branch here in Hong Kong, whose body was found in a banana grove last July. So, what can be disclosed? Well, the man accussed oif the murder, a Malaysian named Mak Foon Than, aged 32, has denied murdering the banker, Jalil Ibrahim. At the time of his death, Mr. Ibrahim was attached to Hong Kong's Bank Bumiputra Malaysia Finance, a wholly-owned subsidiary of Bank Bumiputra in Malaysia. We are allowed to disclose - for goodness sake it happens on public ground outside the court building - that the accused man, Mr. Mak, is driven up in a big, blue police van, and then limps into court, using an aluminium crutch."

12. Mr. Bidduph went on to describe incidents that had occurred already in the course of the hearing and then said "As I have explained, we cannot disclose, apart from the brief public bits, what exactly goes on in court number eight. We cannot even say what the legal arguments are about concerning the banana grove, Mr. Jalil and Mr. Mak. Still, it was interesting, this week, that - right out of the blue - another judge gave a fascinating interview to RTHK about the perils of 'a trial within a trial' and who should decide the validity of a confession."

13. The next paragraph was headed "A Trial within a Trial". Mr. Biddulph then went on to comment upon some remarks that had been made by Sir Alan Huggins, the vice-president of the court of appeal, in which he expressed the view that “a trial within a trial" should be abolished. There was no suggestion in the article that Sir Alan Huggins had, when discussing this matter, made any reference to what was happening in courtroom number eight. Mr. Biddulph did, however, giving rein, as he admitted, to his imagination, conjure up the image of Judge Huggins and Judge O'Connor "sitting in a club over Chinese tea and questioning the whole apparatus of this system".

14. As can be seen from those parts of the article which have been set out above Mr. Biddulph had said that Mak Foon Than was on trial in courtroom number eight on a charge of having murdered Jalil Ibrahim. He had said that in that trial there was a "trial within a trial" proceeding which he was not able to report. He then referred to Mr. Justice Huggin's interview in which he spoke of "the perils of a trial within a trial and who should decide the validity of a confession".

15. The article clearly conveyed to the reader that in a murder trial in courtroom number eight the judge was in the process of conducting a trial within a trial as to the validity of a confession made by the accused. The article contained no less than 4 references to a "confession". In fact the accused had never made any confession to murder. He had made 3 statements, the admissibility of which was being challenged, all of which were exculpatory as to the murder charged. This was, in our view, a clear and serious contempt of court. The Respondents have not sought to deny that a contempt occurred but have, in mitigation through Miss Siddall, who appeared for all three, suggested that the Court should take into account, when considering penalty, that there was no intention to commit a contempt and that it was not a bad case of contempt.

16. Mr. Biddulph in his affidavit said that he only visited courtroom number eight briefly on one occasion and on that occasion he was there for only 15 minutes to make an assessment of the acoustics. He said he did not hear any warning by the trial judge about reporting restrictions on matters which were being dealt with in the absence of the jury. He said that the main object of his article was to report the views of Sir Alan Huggins and that he had cited Mak's case only by way of illustration. He said that he did not consider the statement that a "trial within a trial "was taking place, and I use his words, "could be construed as a contempt because it concerns only procedure" and that he did not consider that "indicating the general nature of the evidence being considered" would constitute a contempt. Let us say immediately that he was in manifest error as regards both of these views. It is indeed difficult for us to understand how a journalist of his experience could have fallen into such error. He went on to suggest that any juror who heard Sir Alan Huggins' interview would "have readily deduced that in all probability a 'confession' by Mak was under consideration''. We are, again, at a complete loss to understand how Mr. Biddulph can have brought himself to this conclusion.

17. Difficulties that arise out of the holding of "trials within trials" have been the subject of judicial discussion both in Hong Kong and elsewhere for many years. There is nothing in Mr. Biddulph's article, or anywhere in the evidence before us, to suggest that anyone would have considered that Sir Alan was referring to the Mak trial. Was Mr. Biddulph attempting to suggest that, when writing the article, he was revealing no more than had been revealed by Sir Alan Huggins?  If Mr. Biddulph is making such a suggestion to this Court, we unhesitatingly reject it in its entirety.

18. Mr. Castro also filed an affidavit in which he said that when he "read the copy for Jim Biddulph's 11th April column, the question of possible contempt did occur to me, and I therefore discussed the matter with the Associate Editor Tim Hamlett, having carefully considered the matter, we concluded that indicating that a "trial within a trial" or "voir dire" was taking place could not be a contempt''. Mr. Castro went on to say that, as he had no "unresolved worries", he did not refer the matter to his solicitors.

19. We must say that, that we find it strange indeed that Mr. Castro, a journalist of 37 years of experience, spent mostly in the Far East, who has been with the Hong Kong Standard for 4 years should, when the question of possible contempt occurred to him, turn not to the newspaper's retained solicitors but to the Associate Editor of 23 years less experience than himself who has only been on this newspaper for 2½ years. In our judgment, an editor of the experience of Mr. Castro ought to have realized that, in order to give due and proper consideration to the contents of an article which had caused him disquiet, he should have taken legal advice thereon and should not have turned to a member of his own staff, and that to fail to take such an advice would be to sail not just "close to the wind", to use Mr. Castro's sxpression, but dangerously close to the wind.

20. We are satisfied that any experienced journalist, having given proper consideration to the contents of the article would, at the very least, have realized that it was sailing dangerously close to the wind and that legal advice should have been taken before it was published.

21. We deprecate the attempt by the three Respondents, through their counsel, to portray this motion as an attack on press freedom, particularly by the invocation of one sentence in a speech by Lord Diplock in Attorney-General v. Times Newspaper Ltd. ^(l) which was a statement mad in the context of "gagging writs" issued in civil proceedings.

22. This motion can in nowise be construed as an attempt by the Attorney-General to suppress or to curtail press freedom. It is, as we hold, a proper motion to uphold that other freedom, of which the Attorney-General spoke, namely, the freedom of every citizen to a fair trial free from bias, prejudice and outside influence.

23. Miss Siddall asked us to give weight to the fact that three statements were admitted after the "trial within a trial" and suggested that it had not been shown that any real damage had been done. This, in our view, is not a matter to which substantial weight can be given. The seriousness of a contempt of this nature must be assessed by looking, as at the time of publication, at the possible adverse consequential effects upon the administration of justice. The possible serious consequential effects are too obvious to require mention. The most obvious is, of course, that, in fairness to the accused, the trial will have to be aborted. This involves not only substantial additional expense and the mental strain of a further trial, which must, at times, be tormenting for those involved, but also, in a murder trial, a further period of incarceration for the accused which, if he is in the end acquitted, he should never have had to undergo.

24. We are fully mindful that the arbitrary power to deal with contempt must be exercised with particular care. We are also mindful of the words of Lord Diplock in the AttorneyGeneral v. Times Newspaper where, when dealing with a contempt which might affect the capability of a court to arrive at a decision based only upon the facts that had been proved in evidence adduced before it in accordance with the procedure adopted in the courts of law, he said, at 73:-

"The mischief against which the summary remedy for contempt of court is directed is not merely that justice will not be done but that it will not be manifestly seen to be done. Comtempt of court is punishable because it undermines the confidence not only of the parties to the particular litigation but also of the public as potential suitors, in the due administration of justice by the established courts of law."

25. We are satisfied, as we have already said, that this was a serious contempt and that it should never have occurred. Had we been satisfied that the contempt was deliberate, in the sense that either Mr. Biddulph or Mr. Castro appreciated that in writing or publishing the article they risked prejudicing the trial of Mak, we would have felt constrained to make orders of committal. It is the kind of error that junior Court Reporters have no difficulty in avoiding and it is surprising, to say the least, that a journalist and an editor of such experience should have fallen into it. We are, nonetheless, prepared to accept that what was done was or may have been done through ignorance.

26. We have given due consideration to Mr. Biddulph's averment that he has no recollection of having heard the warning of the trial judge, but we bear in mind what Lord Russell of Killowen said in the Attorney-General v. Leveller Magazine Ltd. ⁽²⁾ where he stated, at 468:-

"Merely to states, as is the law, that in general, contempt of court is the improper interference with the due administration of justice, is to state that it need not involve disobeience to an order binding upon the alleged contemnor."

27. We bear in mind the blameless past and the reputation of the Respondents but are nonetheless satisfied that a substantial penalty is called for. We are satisfied that the primary responsibility for the publication must be borne by the editor whose duty it is to ensure, with the assistance of his legal advisers, that matter of this kind does not appear in a newpaper. To a substantial extent, a journalist, however experienced, is entitled to rely upon his editor.

28. It was Mr. Catro's decision that it was right and proper to publish the column as it appears, notwithstanding the references to a confession to which we have referred above.  Mr. Castro frankly said, in paragraph 3 of his affidavit, "I take direct responsibility for the contents of the editorial page upon which Jim Biddulph's column appears.” Although Mr. Castro says nothing about his own record, he does say that, for over a decade the Hong Kong Standard Newspaper has not been involved in legal proceedings of any description and that it is not the paper's policy to boost circulation by publishing articles which are sensational or close to the wind in terms of either libel or contempt. We bear that in mind when considering sentence. We also bear in mind that the newspaper's circulation is only 13,000.

29. In conclusion we can do little better than repeat what was said in the Supreme Court of New South Wales in Ex parte Kear Re The Consolidated Press Ltd. & Another⁽³⁾ where the Chief Justice said, at 101:-

"But it must be clearly understood that if instances of this nature occur in the future, now that the warning has been given, that the penalty imposed in the present case would not necessarily be a guide to the proper penalty in future cases, and the Court might feel called upon to take far more stringent action, even to the extent of ordering imprisonment."

30. In our judgment when a criminal trial has been adjourned for argument in the absence of the jury, which is, in many cases, so that the admissibility of a statement by the accused can be determined, a newspaper report should never, when referring thereto, use the words "trial within a trial" or "voir dire" but should adhere to the time honoured phrase, "adjourned for legal argument".

31. We are satisfied, having considered all that has been placed before us that we should impose a fine in each case.  Mr. Biddulph is fined $25,000. The 2nd Respondent, the Hong Kong Standard is fined $10,000 and the 3rd Respondent, Mr. Castro, is fined $40,000. We will entertain an application for time to pay. The Respondents will be allowed 7 days to pay and the Court wishes only finally to say that, of course, failure to pay these fines as ordered within the time limited will be a separate contempt which will be dealt with accordingly. We consider that costs must follow the event. The Attorney-General is to have his costs against the Respondents.

(1) (1973) 3 ALL E. R. 54

(2)  (1979)A. C. 440

(3) (1954) 54 S.R. (N.S.W) 95