Legal SystemsLegal Systems and Courts and Courts

JMSC 6022 Media LawJMSC 6022 Media Law

Associate Prof. Doreen WeisenhausAssociate Prof. Doreen Weisenhaus

February 2009February 2009

Remember, general sources of law in HK?Remember, general sources of law in HK? ConstitutionalConstitutional law (Basic Law) law (Basic Law)

Common lawCommon law (judge-made law): Basic Law (Art. 84) (judge-made law): Basic Law (Art. 84) says H.K. courts “may refer to common law says H.K. courts “may refer to common law precedents of other common law jurisdictions.” precedents of other common law jurisdictions.” Before 1997, HK required to follow British law. Before 1997, HK required to follow British law.

Enacted lawEnacted law: specific local laws passed by Legislative : specific local laws passed by Legislative Council (about 100 a year, e.g., Personal Data Ord, Council (about 100 a year, e.g., Personal Data Ord, BORO, etc.) Initiatives from gov’t, Legco, Law Reform BORO, etc.) Initiatives from gov’t, Legco, Law Reform Commission (advisory)Commission (advisory)

http://www.legislation.gov.hk/eng/index.htm

International treaties and conventionsInternational treaties and conventions (e.g., (e.g., International Covenant on Civil and Political Rights, International Covenant on Civil and Political Rights, 1966) Basic Law (Art. 39) says ICCPR is to be part of 1966) Basic Law (Art. 39) says ICCPR is to be part of HK law., eg. BOROHK law., eg. BORO

Legal systems: 2 major onesLegal systems: 2 major onesCivil LawCivil Law

Majority of countries Majority of countries (e.g., France, Germany, (e.g., France, Germany, most of Europe, Latin most of Europe, Latin America and in Asia)America and in Asia)

French, Dutch, French, Dutch, Portuguese introduced Portuguese introduced civil law into their Asian civil law into their Asian colonies: Vietnam, colonies: Vietnam, Cambodia, Laos, Cambodia, Laos, Indonesia, MacauIndonesia, Macau

Others adopted Others adopted European-style systems European-style systems w/o being colonies: w/o being colonies: China, Japan, South China, Japan, South Korea, Taiwan, ThailandKorea, Taiwan, Thailand

Common Law Originally, referred to law Originally, referred to law

“common” to English “common” to English kingdom, different from kingdom, different from church law.church law.

In Asia, imposed in In Asia, imposed in territories under British territories under British rule, dating back to 18rule, dating back to 18thth and 19and 19thth centuries (E.g., centuries (E.g., HK, Malaysia, Singapore, HK, Malaysia, Singapore, India, Australia, NZ, Fiji, India, Australia, NZ, Fiji, Brunei)Brunei)

Basic Law (Art. 84) says Basic Law (Art. 84) says H.K. courts “may refer to H.K. courts “may refer to common law precedents of common law precedents of other common law other common law jurisdictions.” jurisdictions.”

More on common lawMore on common law Since 15Since 15thth century, reports of judgments handed down century, reports of judgments handed down

by judges established legal principles regulating the by judges established legal principles regulating the relationship between state/citizen and citizen/citizen. relationship between state/citizen and citizen/citizen. Inductive systemInductive system: legal rule arrived at after considering : legal rule arrived at after considering a number of cases.a number of cases.

Can refer to legal system, decided cases in its courts or similar cases in other countries.

Judge-made law, interpretation Precedents -- must follow previous cases of higher

courts. Why important? Now, hundreds of thousands of reported cases Now, hundreds of thousands of reported cases Remember, Remember, precedentprecedent throughout common law world, throughout common law world,

not just one jurisdiction. not just one jurisdiction. Incremental (not like enacted law)Incremental (not like enacted law) Example of judge-made law: NYT v. Sullivan, Cheng v. Example of judge-made law: NYT v. Sullivan, Cheng v.

TseTse

Common law can set out Common law can set out values, principles, frameworkvalues, principles, framework

The freedom of speech (or the freedom of The freedom of speech (or the freedom of expression) is a freedom that is expression) is a freedom that is essentialessential to to Hong Kong’s civil society. Hong Kong’s civil society. It is It is constitutionally guaranteed by the Basic constitutionally guaranteed by the Basic Law (Article 27).Law (Article 27). The The right of fair comment right of fair comment is a most important element in the freedom is a most important element in the freedom of speechof speech. In a society which greatly values . In a society which greatly values the freedom of speech and safeguards it by the freedom of speech and safeguards it by a constitutional guarantee, it is right that a constitutional guarantee, it is right that the courts when considering and developing the courts when considering and developing the common law the common law should not adopt a narrow should not adopt a narrow approachapproach…” – Court of Final Appeal, …” – Court of Final Appeal, Cheng Cheng v. Tsev. Tse

Common law can set out Common law can set out values, principles, frameworkvalues, principles, framework

""We need more such serious journalism in this We need more such serious journalism in this country and defamation law should encourage country and defamation law should encourage rather than discourage it." rather than discourage it."

““These days, the dividing line between These days, the dividing line between governmental and non-governmental governmental and non-governmental organisations is increasingly difficult to draw. organisations is increasingly difficult to draw. The power wielded by the major multi-national The power wielded by the major multi-national corporations is enormous and growing. The corporations is enormous and growing. The freedom to criticise them may be at least as freedom to criticise them may be at least as important in a democratic society as the important in a democratic society as the freedom to criticise the government.”freedom to criticise the government.”

-- Lady Hale, -- Lady Hale, Jameel v. Wall Street Journal Jameel v. Wall Street Journal EuropeEurope, House of Lords, 2006, House of Lords, 2006

Also can establish specific tests: e.g., Also can establish specific tests: e.g., ReynoldReynold’s ’s 10-part test10-part test

Contrast, Contrast, civil codecivil code systems systems Every law is “codified” (written into law). Every law is “codified” (written into law).

Codification is responsibility of Codification is responsibility of legislatureslegislatures Judge can only apply law to facts of a given case, Judge can only apply law to facts of a given case,

not allowed to interpret. What if no law? Court not allowed to interpret. What if no law? Court can’t act, send back to legislature to codify a law.can’t act, send back to legislature to codify a law.

Lack of judicial precedent (binding judicial Lack of judicial precedent (binding judicial interpretation of previously existing legal interpretation of previously existing legal principles) principles)

Different approachDifferent approach. Legislation as primary source . Legislation as primary source of law (w/ courts basing judgments on of law (w/ courts basing judgments on code/statute provisions, from which solutions in code/statute provisions, from which solutions in particular cases are derived. By contrast, in particular cases are derived. By contrast, in common law, cases are primary source of law, common law, cases are primary source of law, with statutes interpreted narrowly, with with statutes interpreted narrowly, with incremental incremental changes.changes.

Convergence? Advantages and disadvantages of Convergence? Advantages and disadvantages of both systemsboth systems

Some hybrids, other influences

Hybrids: E.g., Philippines w/ legal system based on Spanish-Anglo-American, combination civil and common law.

Religious law: Islamic law important in Afghanistan, Bangladesh, Indonesia, Malaysia, etc. Pakistan has a Federal Shariat Court -- “penalty for contempt of Holy Prophet is death and nothing else!” Hindu legal concepts important in Nepal.

Customary law: local customs (e.g., New Territories re: land succession, Australia Aboriginal “law”)

Enacted law Vast majority made locally, contained in

Laws of Hong Kong http://www.legislation.gov.hk/eng/index.htm

Initiatives from government, Legco, Law Reform Commission, community.

HKSAR responsible for drafting and introducing. Usually, 100 a year.

Law Reform Commission: advisory body which considers areas of law reform referred to it by Secretary for Justice or Chief Justice.

International Law: more than 200 international treaties and agreements.

Open justice principleOpen justice principle

““Publicity is the very soul of justice”Publicity is the very soul of justice”

What does that mean?What does that mean?

Administration of justice, including Administration of justice, including trials, derives legitimacy from being trials, derives legitimacy from being conducted in public. The media can conducted in public. The media can help enforce this principle.help enforce this principle.

BORO, Article 10BORO, Article 10All persons shall be equal before the courts and tribunals…All persons shall be equal before the courts and tribunals…

everyone shall be entitled to a everyone shall be entitled to a fair and public hearingfair and public hearing by a by a competent, independent and impartial tribunal…competent, independent and impartial tribunal…

The press and the public may be excluded from all or part of a The press and the public may be excluded from all or part of a trial for reasons of morals, public order or national security trial for reasons of morals, public order or national security in ain a democratic societydemocratic society, or , or when the interest of the private when the interest of the private lives of the parties so requireslives of the parties so requires, to the extent necessary in , to the extent necessary in the opinion of the court in special circumstances where the opinion of the court in special circumstances where publicity would prejudice the interest of justice…publicity would prejudice the interest of justice…

but but any judgmentany judgment rendered in a criminal case or in a suit at law rendered in a criminal case or in a suit at law shall be shall be made publicmade public except where the interest of juvenile except where the interest of juvenile persons otherwise requires or the proceedings concern persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.matrimonial disputes or the guardianship of children.

Contrast, BORO, Article 16Contrast, BORO, Article 16

16(2): Everyone shall have the right to 16(2): Everyone shall have the right to freedom of freedom of expressionexpression; this right shall include ; this right shall include freedom to freedom to seekseek, , receive receive and and impart informationimpart information of all of all kinds….kinds….

16 (3): The exercise of the rights...carries with it 16 (3): The exercise of the rights...carries with it special duties and responsibilities. It may special duties and responsibilities. It may therefore be subject to therefore be subject to certain restrictionscertain restrictions, but , but these shall only be such as are provided by law these shall only be such as are provided by law and are necessary:and are necessary:

(a) for (a) for respect of the rightsrespect of the rights or reputations of or reputations of othersothers

Compare, Compare, U.S. 6th AmendmentU.S. 6th Amendment

In all criminal prosecutions, the accused shall In all criminal prosecutions, the accused shall enjoy the right to a speedy and enjoy the right to a speedy and public trialpublic trial, , by an by an impartial juryimpartial jury of the State and district of the State and district wherein the crime shall have been wherein the crime shall have been committed, which district shall have been committed, which district shall have been previously ascertained by law, and to be previously ascertained by law, and to be informed of the nature and cause of the informed of the nature and cause of the accusation; accusation; to be confronted with the to be confronted with the witnesses against himwitnesses against him; to have compulsory ; to have compulsory process for obtaining witnesses in his favor, process for obtaining witnesses in his favor, and to have the Assistance of Counsel for and to have the Assistance of Counsel for his defense. his defense.

Physical access v. public infoPhysical access v. public info

What about information from court cases?What about information from court cases?

Libel protection for journalists covering Libel protection for journalists covering court proceedingscourt proceedings

But some information cannot be used, some But some information cannot be used, some temporarily, some permanenttemporarily, some permanent. .

(E.g., to protect privacy, fair trial, criminal (E.g., to protect privacy, fair trial, criminal investigations, more later):investigations, more later):

The judiciary

Courts and judges Responsible for administration of

justice 3d branch of government “Shall exercise judicial power

independently, free from any interference”- BL 85

Juries: guaranteed BL 86 http://www.judiciary.gov.hk/en/index/index.htm

Hong Kong Courts Magistrates courts: All criminal cases, however

serious, begin in front of a magistrate. Usually preliminary hearings heard before a case is transferred to District Court or committed for trial at Court of First Instance. Less serious cases will be tried by the magistrate.

District Court: civil, monetary claims $50,000-$1 million; some criminal matters but not murder or rape; no jury; maximum 7 years imprisonment

High Court: Court of First Instance (civil and serious criminal, juries) and Court of Appeal (from CFI, DC, magistrates, tribunals)

Court of Final Appeal: (highest court, binding on all HK courts)

Court of Final Appeal

Permanent and non permanent members (HKCFA Ord. Cap 484)

Non permanent from local list and other common law jurisdictions (Why significant?)

Chief Justice Andrew Li Kwok-nang Other permanent: Bokhary, Chan, Ribeiro 17 non permanent judges: e.g., former CJs, NZ, Aust; others, Brunei,

Bermuda, UK, etc

Structure of HK courts

Some terminology* Jurisdiction: having the power or authority(e.g., criminal v. civil, original v. appellate)

Adversarial: lawyers predominant, judge impartial referee (compare “Inquisitorial”)

Barristers: court specialists, hired through solicitors or gov’t

Solicitors: more general legal work, give legal advice, draft docs, file registrations, can also represent below CFI

Adjudication: determining the facts, deciding the appropriate law, applying the law to the facts, reaching a result

*See glossary of HK Media Law, pp355-360

Judicial review Challenges to decisions made by government, public

bodies Might involve asserting human rights under Basic Law or

BORO, e.g., right of abode, freedom of expression etc As reporter, important to check them, explain implications Think about how the judgment might influence lives Will any important precedents be set? Recent cases: Student challenging Chinese U’s bilingual

policy (pending), Ming Pao’s obscenity classification (accepted), HK’s handling of refugees (rejected) Queen’s Pier (rejected), ICAC raids w/o warrants (accepted), squatters in illegal flats protesting gov’t housing policy (rejected)

New standard: CFA (Nov 2007) revised standards for when the courts should accept a request for judicial review.

Before: HK courts bound by the test of “potential arguability”

Now: Stricter standard that only cases shown to be “reasonably arguable” would proceed   

Citizens’ Radio Challenging HK’s licensing regime Fundamental issues of broadcasting

freedom Remember, media freedom protected

by Basic Law (Art 27, 39) and Bill of Rights Ordinance Art. 16 (same as ICCPR, Art. 19) but is not absolute

Permissible restrictions have to be: a) for legitimate reasons b) provided by law c) proportionate measures

Case of Citizens’ Radio important because it:

Illustrates how media freedom is protected and restricted in practice

Challenges existing arrangements not protecting broadcasting freedom

Facts: Launched and operated by political activists Licence application in Sept 2005, rejected in Oct 2006. Reasons:

Failed to demonstrate technical feasibility of use of radio spectrum

Did not show it had management, financial and technical capability to manage a sound broadcasting service

No need for community broadcasting In contrast:

licence application by Wave Media Lt in Jan 2008 funding of 140 million HKD granted 12-year licence in July 2008

About Citizens’ Radio

Oct 2005 1 hour FM daily as pirate radio unlawful broadcasting rare in HK UK and Taiwan: more than 100

Political activists adopt high profile. Avowed aims: to provide platform for expression of political dissent to

counteract self-censorship of commercial broadcasters to make up for deficiencies in public access by RTHK,

existing public broadcaster

Results:Raids, arrests, prosecutions, despite no specific law

banning pirate radio charged with establishing or maintaining a means of

telecommunications w/o a licence To ensure orderly use of radio spectrum, prevent harm

caused by unauthorized radio communications

Citizens’ Radio: Challenged licensing regime

as unconstitutional, contrary to A27 Basic Law/A16 BORO:

Requirement to obtain licence is disproportionate restriction on freedom of expression and of the press

Licensing regime lacks clarity and certainty

No provision to regulate discretion of Chief Executive in Council in award of a broadcasting licence.

Measures are “arbitrary” and “discriminatory” (no time processing time limit, no appeal of rejections, no independent body to grant license, high licensing fees)

Govt’s response: limited public resource

must be regulated to ensure efficient use

licensing justified and proportionate restriction on freedom of expression.

Law is certain and prescribed by law

published and accessible to public

applicant may lodge complaints of discriminatory treatment

May seek judicial review of the licence refusal

Any abuse of power is overseen by an independent judiciary

What the courts have said:Magistrate (Jan 2008): dismisses charge of unauthorized broadcasting and

rules licensing regime unconstitutional: Decision to grant a licence rests solely on the “unfettered and unchecked”

discretion of Chief Executive in Council No statutory appeal Chief Executive in Council and Broadcasting Authority not independent of

Government Lic. regime lacks certainty and is therefore not prescribed by law breaches Art 27 + 39 of Basic Law and Art 16(3) of BORO Charges based on failure to comply with licensing regime also

unconstitutional

Court of First Instance (Jan 2008): lifts injunction and gives go-ahead for judicial review

Court of Appeal (Dec 2008): grants government appeal against dismissal of charges for unlicensed broadcasting. Held that constitutional challenge to licensing regime could not be a defence to a crime, setting aside a magistrate’s decision that ruled the licensing system breached Basic Law.

Citizens’ Radio appealing to Court of Final Appeal

What is contempt of court?What is contempt of court? Defined as: Wrongful interference with the Defined as: Wrongful interference with the

administration of justiceadministration of justice Protect the rights of litigants and the court -- Protect the rights of litigants and the court --

judicial process -- from abusejudicial process -- from abuse Not to protect the personal dignity of the courtNot to protect the personal dignity of the court Can take many forms: media most in trouble Can take many forms: media most in trouble

by commenting or reporting on current cases, by commenting or reporting on current cases, esp. jury trialsesp. jury trials

Source of HK law: mostly common law, some Source of HK law: mostly common law, some statutory restrictions. statutory restrictions. In U.K., Contempt of In U.K., Contempt of Court Act, 1981Court Act, 1981

Forms of contempt?Forms of contempt?

11) Civil contempt) Civil contempt

2) Criminal contempt 2) Criminal contempt

(Misleading, though, because both can (Misleading, though, because both can involve jail sentences. That’s why the involve jail sentences. That’s why the standard of proof is standard of proof is beyond a beyond a reasonable doubt)reasonable doubt)

Civil ContemptCivil Contempt

Breach of injunction or non-publication Breach of injunction or non-publication order (order (Citizen RadioCitizen Radio case or order not case or order not to reveal certain info)to reveal certain info)

Refusal to obey court order (e.g., order Refusal to obey court order (e.g., order to pay), witness summons or refusal to to pay), witness summons or refusal to attend examinations by parties.attend examinations by parties.

Penalty? Usually a fine but jail is an Penalty? Usually a fine but jail is an optionoption

Criminal contemptCriminal contempt Contempt in the face of courtContempt in the face of court: disrupting : disrupting

court proceedings, witness refuses to be court proceedings, witness refuses to be sworn in (to preserve order in courtroom)sworn in (to preserve order in courtroom)

Interference with due administration of Interference with due administration of justice in particular case (usually by justice in particular case (usually by publicationpublication) - Trying to prevent “trial by ) - Trying to prevent “trial by media” (media” (A.G. v. Cheung Kim Hung-- Next A.G. v. Cheung Kim Hung-- Next Magazine caseMagazine case) )

Scandalising the courtScandalising the court ( (OrientalOriental))

Definition? Definition? ((A.G. v. Cheung Kim HungA.G. v. Cheung Kim Hung))

““Contempt in the present context may be Contempt in the present context may be broadly defined as the wrongful interference broadly defined as the wrongful interference with the administration of justice. It is limited with the administration of justice. It is limited to to what is necessarywhat is necessary for the administration of for the administration of justice and no more…Wrongful interference justice and no more…Wrongful interference can take many forms. One of the common can take many forms. One of the common forms is the making of comments about forms is the making of comments about current cases. Often this happens in current cases. Often this happens in newspapers in making statements and newspapers in making statements and observations about current cases…”observations about current cases…”

A.G. v. Cheung Kim HungA.G. v. Cheung Kim Hung Facts: Stephen Cheung sues Facts: Stephen Cheung sues EastweekEastweek for story on for story on

worst teaching award. On last day (closing arguments) of worst teaching award. On last day (closing arguments) of libel trial, Next mag. published article, mentioning legal libel trial, Next mag. published article, mentioning legal fees of $2.4 million. Jury gives -- $2.4 million!fees of $2.4 million. Jury gives -- $2.4 million!

EastweekEastweek appealed and one ground of appeal was that appealed and one ground of appeal was that jury was unduely interfered with. jury was unduely interfered with.

CA referred case to A.G. to decide whether contempt CA referred case to A.G. to decide whether contempt should be brought. One issue still pending was should be brought. One issue still pending was damages. Parties entitled to impartial trial damages. Parties entitled to impartial trial

2 factors: close timing and striking similarity of amount. 2 factors: close timing and striking similarity of amount. CCourt is concerned of RISK of prejudice, not whether ourt is concerned of RISK of prejudice, not whether jury is ultimately affectedjury is ultimately affected

Courts looks to vulnerability of a jury: IF NOT BEFORE A Courts looks to vulnerability of a jury: IF NOT BEFORE A JURY, then possibly not contempt….JURY, then possibly not contempt….

Next fined $25,000, its editor $5,000, plus legal costsNext fined $25,000, its editor $5,000, plus legal costs

Forms of criminal contemptForms of criminal contempt

Comment on issues before the courtComment on issues before the court Publishing photos of suspect when identification is in Publishing photos of suspect when identification is in

issueissue Publication of material not before the court (e.g., Publication of material not before the court (e.g.,

interviewing witnesses during trial)interviewing witnesses during trial) Publishing material prejudicial to fair trial (witness Publishing material prejudicial to fair trial (witness

statements, counsel submission, credibility of statements, counsel submission, credibility of witnesses, defendant)witnesses, defendant)

Interference with juries, witnessesInterference with juries, witnesses Infringement of court reporting restrictions Infringement of court reporting restrictions

(recording, taking photos, etc)(recording, taking photos, etc) Identifying sex crime victimsIdentifying sex crime victims Reporting on what took place in jury deliberationsReporting on what took place in jury deliberations

Sub judice Sub judice periodperiod

Latin for “under a judge”Latin for “under a judge” Common law principle: publication is Common law principle: publication is

considered likely to prejudice a fair trial if considered likely to prejudice a fair trial if proceedings are said to be “pending or proceedings are said to be “pending or imminent”imminent”

Criminal: usually after arrest, charges or Criminal: usually after arrest, charges or warrant warrant

Courts worried about vulnerability of juries Courts worried about vulnerability of juries or whether witnesses might be deterredor whether witnesses might be deterred

Apple DailyApple Daily 1999 1999Oct. 5, 1999: “A paedophiliac Vietnamese male is Oct. 5, 1999: “A paedophiliac Vietnamese male is

suspected of killing a 5-year-old child.”suspected of killing a 5-year-old child.”Trial in its 2d day, and prosecutors had not presented any Trial in its 2d day, and prosecutors had not presented any

evidence of the accused having committed sex crimes.evidence of the accused having committed sex crimes.Results:Results: jury trial dismissed. 4 months later, new trial resulted in jury trial dismissed. 4 months later, new trial resulted in

conviction and life sentence. Had previous convictions conviction and life sentence. Had previous convictions for sexual molestation.for sexual molestation.

separate action to force Apple to reveal reporter denied separate action to force Apple to reveal reporter denied by courtby court

Apple fined HK$100,000 for contempt.Apple fined HK$100,000 for contempt.

Secretary for Justice v. The SunSecretary for Justice v. The Sun, 2006, 2006 October 2004: 2 women raped; suspect arrested.October 2004: 2 women raped; suspect arrested. May 4, 2005, trial scheduled to start.May 4, 2005, trial scheduled to start. April 17, 2005 headline, The Sun: “Burning with desire. A April 17, 2005 headline, The Sun: “Burning with desire. A

Pakistani suspected of raping two English ladies in Tai Mo Pakistani suspected of raping two English ladies in Tai Mo Shan did buggery to prisoners in cell during detention.”Shan did buggery to prisoners in cell during detention.”

April 17, Oriental: “Accused of raping 2 English female April 17, Oriental: “Accused of raping 2 English female tourists. Turning prison into ‘Imperial harem’tourists. Turning prison into ‘Imperial harem’

Trial adjourned to Sept 2005. Defendant pleaded guilty.Trial adjourned to Sept 2005. Defendant pleaded guilty. Test: whether the articles likely to interfere with Test: whether the articles likely to interfere with

administration of justice. Interference need not be deliberate administration of justice. Interference need not be deliberate or intended.or intended.

Sufficient: 1) intention to publish and 2) real risk of prejudiceSufficient: 1) intention to publish and 2) real risk of prejudice Court: not deliberate or malicious, “result of negligence and Court: not deliberate or malicious, “result of negligence and

insufficient supervision” insufficient supervision” Fined HK$500,000 (publishers $200,000 each, editors $50,000 Fined HK$500,000 (publishers $200,000 each, editors $50,000

each)each)

Statutory restrictionsStatutory restrictions To protect privacy: identity of juvenile To protect privacy: identity of juvenile

offenders, victim of sexual offenses, offenders, victim of sexual offenses, divorces, wardship, mental healthdivorces, wardship, mental health

To protect fair trial: committal To protect fair trial: committal proceedingsproceedings

To protect criminal investigations: To protect criminal investigations: bribery, witness protectionbribery, witness protection

Who is responsible?Who is responsible?

editoreditor publisherpublisher

printerprinter reporterreporter ownerowner

2 important points2 important points

Real riskReal risk: The act : The act must pose a serious must pose a serious risk of a real and risk of a real and substantial danger of substantial danger of prejudice to the fair prejudice to the fair trialtrial

FactorsFactors: jury trial, locality : jury trial, locality of publication, proximity of publication, proximity to trial, intensity of to trial, intensity of publication, circulationpublication, circulation

Strict liabilityStrict liability; ; intention to interfere intention to interfere is relevant to is relevant to sentence only. Need sentence only. Need only intent to only intent to publish!publish!

Back to Back to A.G. v. Cheung Kim HungA.G. v. Cheung Kim Hung

“…“…the law of contempt is restricted to the law of contempt is restricted to what is what is necessarynecessary for the attainment of justice. for the attainment of justice. Inherent in the law of contempt is a restriction Inherent in the law of contempt is a restriction on the right of freedom of speech. That on the right of freedom of speech. That freedom is a cardinal freedom. It is one which freedom is a cardinal freedom. It is one which the law is there to uphold. The importance of the law is there to uphold. The importance of the freedom of speech cannot be the freedom of speech cannot be underestimated. Nevertheless, the right of underestimated. Nevertheless, the right of freedom of speech and the due administration freedom of speech and the due administration of law have synergistic qualities because of law have synergistic qualities because without one the other cannot truly exist.”without one the other cannot truly exist.”

The Sunday Times v. United The Sunday Times v. United KingdomKingdom, 1979, ECHR, 1979, ECHR

Interference with freedom of expression was not Interference with freedom of expression was not justified under Art. 10 of European Convention justified under Art. 10 of European Convention of Human Rights which permits such of Human Rights which permits such restriction “as are prescribed by law and are restriction “as are prescribed by law and are necessary in a democratic society for necessary in a democratic society for maintaining the authority and impartiality of maintaining the authority and impartiality of the judiciary.” Here, the court decided that the the judiciary.” Here, the court decided that the restriction was not justified by a “pressing restriction was not justified by a “pressing social need” and could not therefore be social need” and could not therefore be regarded as necessary.regarded as necessary.

More on More on Sunday TimesSunday Times• Sunday TimesSunday Times proposed to publish article on proposed to publish article on

marketing of thalidomide, a drug that caused birth marketing of thalidomide, a drug that caused birth defects, despite long-running legal actions of defects, despite long-running legal actions of negligence between parents and drug manufacturers. negligence between parents and drug manufacturers. UK courts ruled article could not be published UK courts ruled article could not be published because it prejudged issues in litigation and would be because it prejudged issues in litigation and would be contempt. contempt.

• Newspaper applied to ECHR, saying ban was Newspaper applied to ECHR, saying ban was infringement on right to freedom of expression. Court infringement on right to freedom of expression. Court said: matter of public concern, mere fact that said: matter of public concern, mere fact that litigation in progress did not alter right of media to litigation in progress did not alter right of media to impart information of public interest. Article was impart information of public interest. Article was moderate, would not have prejudiced a moderate, would not have prejudiced a non-jurynon-jury trial.. trial..

• UK passed UK passed 1981 Contempt of Court Act1981 Contempt of Court Act..

U.S. ComparisonsU.S. Comparisons Courtrooms are open to publicCourtrooms are open to public. Before excluding public from . Before excluding public from

criminal proceeding, court must make specific findings that criminal proceeding, court must make specific findings that closure is closure is necessarynecessary to protect a to protect a compelling governmental compelling governmental interestinterest and and limitlimit secrecy only to extent necessary secrecy only to extent necessary

Jury privacyJury privacy: despite secret deliberations, public has right of : despite secret deliberations, public has right of access to info about jurors and to post-verdict contact. (To access to info about jurors and to post-verdict contact. (To explain verdict) But more courts are limiting access over explain verdict) But more courts are limiting access over privacy and safety concerns privacy and safety concerns

Anonymous juriesAnonymous juries. Increasing use, first began in organized . Increasing use, first began in organized crime cases 15 years agocrime cases 15 years ago

Anonymous victimsAnonymous victims mostly rejected on 6th amendment right mostly rejected on 6th amendment right to a fair trial (confront accuser)… (What about HK’s Mr. X??)to a fair trial (confront accuser)… (What about HK’s Mr. X??)

More U.S. comparisons...More U.S. comparisons... Juvenile courtsJuvenile courts generally closed to public but high generally closed to public but high

profile crimes involving minors are increasingly open. profile crimes involving minors are increasingly open. Eg., youths charged with offenses that would be Eg., youths charged with offenses that would be felonies if committed by adults (At least 10 states). felonies if committed by adults (At least 10 states). Presumption of openness. (Ok, Ariz., NY)Presumption of openness. (Ok, Ariz., NY)

Even if revealed contrary to state law, ok if already in Even if revealed contrary to state law, ok if already in public domain or obtained legallypublic domain or obtained legally

Civil proceedingsCivil proceedings, generally open but no , generally open but no constitutional right of access. 1st A applies to civil constitutional right of access. 1st A applies to civil context (context (Richmond Newspapers v. VirginiaRichmond Newspapers v. Virginia, 1980), 1980)

Rape victimsRape victims: general practice not to name but can if : general practice not to name but can if in court records (in court records (Cox Broadcasting v. CohnCox Broadcasting v. Cohn, 1975), 1975)

RRecent US contempt caseecent US contempt case CIA leak case: Valerie Plame federal criminal caseCIA leak case: Valerie Plame federal criminal case: :

In re: Grand Jury Subpoena, Judith MillerIn re: Grand Jury Subpoena, Judith MillerFacts: undercover agent Plame id’d in Robert Novack column in 2003, citing Facts: undercover agent Plame id’d in Robert Novack column in 2003, citing

2 unnamed “senior admin. officials”. After column, several reporters 2 unnamed “senior admin. officials”. After column, several reporters including Time published stories. Leak was characterized as a politically including Time published stories. Leak was characterized as a politically motivated attack on Plame’s husband, former ambassador Joseph motivated attack on Plame’s husband, former ambassador Joseph Wilson who publicly criticized Bush admin for saying Iraq was trying to Wilson who publicly criticized Bush admin for saying Iraq was trying to buy uranium from Niger.buy uranium from Niger.

Special prosecutor subpoenaed a number of journalists.Special prosecutor subpoenaed a number of journalists. Judy Miller didn’t even publish a story!Judy Miller didn’t even publish a story! NYT, Time magazine held in contempt. US Court of Appeals held that no NYT, Time magazine held in contempt. US Court of Appeals held that no

privilege protects journalists from being compelled to reveal their privilege protects journalists from being compelled to reveal their confidential sources when called to testify before grand juries. US SCt confidential sources when called to testify before grand juries. US SCt refused to hear case. Time cooperated, Judy Miller served 85 days in jail refused to hear case. Time cooperated, Judy Miller served 85 days in jail in 2005 before testifying about her interview w/ Lewis Scooter Libbey, VP in 2005 before testifying about her interview w/ Lewis Scooter Libbey, VP Cheney’s Chief of Staff, but said she “couldn’t remember” who told her Cheney’s Chief of Staff, but said she “couldn’t remember” who told her about Valerie Plame).about Valerie Plame).

Original source was Richard Armitage, ex-deputy secretary of state!Original source was Richard Armitage, ex-deputy secretary of state!Libby convicted in 2007 of obstruction of justice, perjury, lying to Libby convicted in 2007 of obstruction of justice, perjury, lying to

prosecutors (Miller testified at his trial). He was sentenced to 30 months, prosecutors (Miller testified at his trial). He was sentenced to 30 months, but sentence commuted by Bushbut sentence commuted by Bush

A special kind of contempt A special kind of contempt case: Scandalising the courtcase: Scandalising the court

Scurrilous abuse of the courtScurrilous abuse of the court Abuse not directed to a particular case, but Abuse not directed to a particular case, but

aim at protecting public confidence in due aim at protecting public confidence in due administration of justiceadministration of justice

Criticism is not abuse, but where is line Criticism is not abuse, but where is line between freedom of expression and undue between freedom of expression and undue interference?interference?

In U.K., last successful prosecution in 1931!In U.K., last successful prosecution in 1931!

History of scandalising the courtHistory of scandalising the court 1765 UK case, 1765 UK case, R. v. Almon R. v. Almon …pamphlet that said the CJ had …pamphlet that said the CJ had

acted “officiously, arbitrarily and illegally” acted “officiously, arbitrarily and illegally” Some cases in 19Some cases in 19thth c., but generally considered obsolete c., but generally considered obsolete

until until R. v. Gray,R. v. Gray, 1900. A journalist found in contempt for 1900. A journalist found in contempt for describing a judge as “impudent little man in horsehair, a describing a judge as “impudent little man in horsehair, a microcosm of conceit and empty-headedness” – Did not microcosm of conceit and empty-headedness” – Did not relate to current case…relate to current case…

Cases in 1920s, 1930s (e.g., whether a birth control reformer Cases in 1920s, 1930s (e.g., whether a birth control reformer would receive a fair trial from a Catholic judge.)would receive a fair trial from a Catholic judge.)

No actual interference with administration has to be provedNo actual interference with administration has to be proved. . In theory, defenses of fair comment, truth.In theory, defenses of fair comment, truth.

Definition: Publication which creates a Definition: Publication which creates a real riskreal risk that the that the administration of justice will be undermined.administration of justice will be undermined.

What is “real risk”? To maintain public confidence in What is “real risk”? To maintain public confidence in judiciary?judiciary?

……More historyMore history Some comments assumed worse. E.g., corruption or bias Some comments assumed worse. E.g., corruption or bias

(Singapore). More lenient on incompetence. Courts also (Singapore). More lenient on incompetence. Courts also look to tone, languagelook to tone, language

1987, Daily Mirror published upside down photographs of 1987, Daily Mirror published upside down photographs of the Lords in the Lords in SpycatcherSpycatcher case, headline: “YOU FOOLS!” – no case, headline: “YOU FOOLS!” – no prosecution.prosecution.

USUS: concept unconstitutional: concept unconstitutional CanadaCanada: : R v. KopytoR v. Kopyto (1987): incompatible with Canadian (1987): incompatible with Canadian

Charter of Rights and Freedoms. Needs to be “clear, serious Charter of Rights and Freedoms. Needs to be “clear, serious and immediate” dangerand immediate” danger

NZNZ: : SG v. Radio NZSG v. Radio NZ (1994) “real risk as distinct from a (1994) “real risk as distinct from a remote possibility that the conduct would undermine public remote possibility that the conduct would undermine public confidence in the administration of justice.”confidence in the administration of justice.”

UKUK: During 1981 reforms, amendment to make obsolete : During 1981 reforms, amendment to make obsolete rejected. rejected.

Wong Yeung Ng v Sec’y for JusticeWong Yeung Ng v Sec’y for Justice, 1999, 1999

Background: After Obscene Articles Tribunal Background: After Obscene Articles Tribunal ruled against ODN, courts agreed. Also, OPG ruled against ODN, courts agreed. Also, OPG sues Apple Daily for copyright infringement; sues Apple Daily for copyright infringement; only gets HK$8,001. CA critical of photos of only gets HK$8,001. CA critical of photos of celebs.celebs.

Contempt I: several articles in Dec97-Jan98 Contempt I: several articles in Dec97-Jan98 against OAT, judges, accusing them of political against OAT, judges, accusing them of political persecution.persecution.

Contempt II: paparazzi against one of the judgesContempt II: paparazzi against one of the judges Result: $5 million fine and chief editor jailed for Result: $5 million fine and chief editor jailed for

4 months!4 months!

Wong Yeung Ng v. Secretary for JusticeWong Yeung Ng v. Secretary for Justice (Oriental), 1999(Oriental), 1999

““The constitutional right of free speech as The constitutional right of free speech as contained in the Basic Law…is not an contained in the Basic Law…is not an

absolute right. Every civilized community is absolute right. Every civilized community is entitled to protect itself from entitled to protect itself from malicious malicious conduct aimed at undermining the due conduct aimed at undermining the due

administration of justiceadministration of justice. It is an important . It is an important aspect of the preservation of the rule of aspect of the preservation of the rule of

law. Where the contemnor goes way beyond law. Where the contemnor goes way beyond reasoned criticism of the judicial system reasoned criticism of the judicial system

and acts in bad faith, the guarantee of free and acts in bad faith, the guarantee of free speech cannot protect him from speech cannot protect him from

punishment.”punishment.” – PJ Litton – PJ Litton

Next week

See you in court!