The Secretary For Justice v The Oriental Press Group Ltd. And Others

Judgment Date30 June 1998
Citation[1998] 2 HKLRD 123
Judgement NumberHCMP407/1998
Year1998
CourtHigh Court (Hong Kong)
HCMP000407A/1998 The Secretary for Justice v. The Oriental Press Group Ltd. and Others

HCMP000407A/1998

HCMP 407/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 407 of 1998

___________

IN THE MATTER of an application by the Secretary for Justice for an Order of Committal
and
IN THE MATTER of RHC Order 52

BETWEEN
The Secretary for Justice Applicant
AND
The Oriental Press Group Limited 1st Respondent
The Oriental Daily Publisher Limited 2nd Respondent
Ma Ching Fat 3rd Respondent
Lam Shum Choi 4th Respondent
Lam Shun Chuen 5th Respondent
Wong Yeung Ng 6th Respondent

___________

Coram : Hon Chan, C.J.H.C. and Keith, J.

Dates of Hearing on Sentence and Costs: 27, 29 and 30 June 1998

Date of Sentence and Ruling on Costs : 30 June 1998

_______________

J U D G M E N T

________________

Chan C.J.H.C. and Keith, J.:

1. Both members of the Court have contributed to the drafting of the remarks which we are about to make.

Sentence

2. It is regrettable that we have to sentence for scandalising the court the proprietor of the Chinese newspaper with the widest circulation in Hong Kong and an experienced journalist with an impeccable character. An independent Judiciary and a free press are two vital pillars of our community. If, as in this case, the freedom of the press is abused by the scandalising of the court, both the independence of the Judiciary and the freedom of the press suffer. The rule of law is at risk if public confidence in the Judiciary is weakened. Freedom of expression is endangered if it is abused. Judges are not immune from criticism. They need criticism to point out their mistakes and to remind them that they are not infallible. If freedom of expression is to be respected, it must be exercised fairly, reasonably and in good faith. This must be the guiding principle of a responsible and respectable press. In the present case, most unfortunately, freedom of expression has been grossly abused.

3. The campaign which the Oriental Daily News waged against the Judiciary was without parallel in modern times. The features of this prolonged and sustained campaign which made it so unique include the venom of the language which was used, the outrageousness of the motives which it ascribed to its targets, and - if the numerous letters of support which the Oriental Daily News claimed to have received from its readers is anything to go by - the impact which the campaign had on public confidence in the ability of Hong Kong's judges to dispense justice conscientiously and impartially.

4. It has been argued that these contempts of court were not of the most serious kind, and that the heaviest punishments should be reserved for cases similar to that of the editor of a national newspaper in England in 1949 which reported in a sensational manner that a man in custody facing a murder charge had murdered a number of other people who the newspaper named and that the man was a vampire who drank the blood of his victims. We do not wish in any way to minimise the gravity of the contempts of those who publish highly irresponsible articles about pending criminal cases, and who therefore undermine the integrity of the criminal process. But we regard the contempts which were committed in the present case as even more serious, probably more serious than any of those involved in the cases which have been referred to us. That is because what was at stake in the Oriental Daily News' campaign was not the outcome of an individual case but nothing less than the rule of law itself. As we said in our judgment, the intention was to create a climate of dissatisfaction with the Judiciary - probably in the hope that the Judiciary would bow to the weight of public opinion, and treat the Oriental Daily News and its sister newspapers in a more benevolent way in the future. It was this ultimate challenge to the rule of law which makes these contempts probably the most serious examples of "media" contempts which the courts in the common law world have ever encountered. Hence, we have not found the authorities referred to us for the purpose of comparison to have been of any assistance.

5. The contempt of court consisting of the pursuit of Godfrey JA was equally unprecedented. We know of no case in which a judge has been harassed in the way in which Godfrey JA was. What made the pursuit of him particularly serious was that it was done, not as was suggested to educate him in the ways of paparazzi, but to pay him back for not going along with all of the Oriental Press Group's arguments in the case which he had heard. For these reasons, the sentences which we impose must reflect our view of the unprecedented gravity of the contempts which have been committed.

6. We deal first with the 6th respondent, Wong Yeung Ng, the former editor of theOriental Daily News. Subject to one reservation which we shall mention in a moment, he must bear the prime responsibility for this campaign. That is because as editor he had ultimate control over the contents of the Oriental Daily News and over the activities of the newspaper's photographers and reporters who hounded Godfrey JA. We have noted his unreserved apology for his conduct, and we are prepared to accept that he is genuinely remorseful for what he has done. We are also prepared to accept that he would have admitted his responsibility for these contempts at the outset were it not for the arguments canvassed on behalf of the other respondents that the conduct complained of did not in law amount to contempts of court at all. We have also borne in mind his personal background, his hitherto unimpeachable character, and the fact that his reputation as an experienced and respected professional in his field has been irretrievably tarnished.

7. We have not overlooked the argument of Mr Cheng Huan, SC for Mr Wong that journalists may have been led to believe that they would not be prosecuted for the offence of scandalising the court because abusive attacks on judges have escaped prosecution elsewhere, and because the offence has been thought at various times to be obsolete. We do not know whether that is what Mr Wong believed, but even if he did, we do not regard it as being a serious mitigating factor. As we said in our judgment, the rarity of prosecution is not

"because of a belief that there is no room for this branch of the law of contempt in a society which places so high a premium on an independent and vigorous press and freedom of expression, but rather because attacks on the judiciary are so infrequent and prosecutions for contempts of this kind are only initiated in the most outrageous cases."

8. Nor have we overlooked the point stressed by Mr Cheng - that Mr Wong had sought legal advice and had been told that it was not unlawful for paparazzi to tail public figures, provided that they did not trespass on their person or property. But the fact that a person acts with...

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