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is press freedom under threat in hong kong?
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HCMP 1851/2013
IN THE HIGH COURT OF THEHONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCEMISCELLANEOUS PROCEEDINGS NO 1851 OF 2013
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IN THE MATTER OF an application by the Secretary for Justice for leave to apply for an Order of Committal pursuant to Order 52, rule 2 of the Rules of the High Court, Cap 4A
and
IN THE MATTER OF the Kowloon City Magistrates’ Courts’ Criminal Case No 1111 of 2013
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BETWEEN
SECRETARY OF JUSTICE Plaintiff
and
LI PANG KAY 1st Defendant(in his capacity as the editor of Sharp Daily)
SHARP DAILY LIMITED 2nd Defendant(in its capacity as the publisherand proprietor of Sharp daily)
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AND
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HCMP 1852/2013
IN THE HIGH COURT OF THEHONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCEMISCELLANEOUS PROCEEDINGS NO 1852 OF 2013
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IN THE MATTER OF an application by the Secretary for Justice for leave to apply for an Order of Committal pursuant to Order 52, rule 2 of the Rules of the High Court, Cap 4A
and
IN THE MATTER OF the Kowloon City Magistrates’ Courts’ Criminal Case No 1111 of 2013
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BETWEEN
SECRETARY OF JUSTICE Plaintiff
and
CHEUNG KIM HUNG 1st Defendant(in his capacity as the editor of Apple Daily)
APPLE DAILY LIMITED 2nd Defendant(in its capacity as the publisherand proprietor of Apple daily)
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(Heard Together)
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Before: Hon Au J in Chambers
Date of Hearing: 14 August 2015
Date of Decision: 20 August 2015
D E C I S I O N
A. INTRODUCTION
1 These are contempt proceedings respectively against Mr Li
and Sharp Daily Ltd (under HCMP 1851/2013) and Mr Cheung and
Apple Daily Ltd (under HCMP 1852/2013). The contempt committed is
in relation to the publication on 20 March 2013 of (a) an article
respectively on the newspaper Apple Daily and Sharp Daily of an
interview of a Mr Chau who was arrested and charged for double
homicide; and (b) a video clip on the related newspaper websites of the
interview. The interview was conducted while Mr Chau was in jail
custody at the Siu Lam Psychiatric Centre (“SLPC”). The article and the
video clip were published when the anticipated criminal trial of Mr Chau
was still pending.
2 At that time, Mr Cheung and Mr Li were the editors
respectively of Apple Daily and Sharp Daily. Apple Daily Ltd and Sharp
Daily Ltd are respectively the proprietors and publishers of Apple Daily
and Sharp Daily.
3 After ex parte leave to commence these contempt
proceedings was granted on 31 July 2013 by Poon J, Mr Cheung and
Mr Li (both for themselves and on behalf of the corporate defendants)
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respectively filed an affirmation on 4 October 2013 under the respective
proceedings. In these affirmations, Mr Cheung and Mr Li both admitted
liability for contempt and made an apology to the court about the
contempt. They also set out various matters apparently for the purpose of
mitigation.
4 The substantive hearing of the contempt proceedings are
now fixed for 16 and 17 September 2015.1 Given the defendants’
accepted liability for contempt, the only issue left for determination at
that hearing is sentence.
5 Before me are now the plaintiff’s applications made under
both proceedings2 to cross-examine Mr Cheung and Mr Li in relation to
certain matters they have deposed to in their affirmations.
6 These applications are opposed by the defendants.
B. THE PRESENT APPLICATIONS
B1. The intended questions of cross-examination
7 The relevant parts of the affirmations that the plaintiff wants
to cross-examine the deponents are paragraphs 12.2 and 13 of
Mr Cheung’s affirmation, and paragraph 9.2 of Mr Li’s affirmation. For
completeness, I would quote the relevant full paragraphs as follows:
(1) For Mr Cheung’s affirmation:
1 The substantive hearing was by consent adjourned until after final determination of the criminal proceedings against Mr Chau.
2 Under Summonses taken out on 1 June 2015.
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“12. The Plaintiff’s application arises from the 1st and 2nd Defendants’ reporting of a double homicide case. The events leading to the relevant publication are, in sum, as follows:
12.1. On or about 13th March 2013, a Mr. Henry Chau (“Mr. Chau”) and his elder brother approached the 2nd Defendant in order to seek its assistance to locate their missing parents.
12.2. On about the night of 14th March 2013 or at the early hours of 15th March 2013, it came to the attention of the 1st and 2nd Defendant [sic] that Mr. Chau had made known to a chat-group through a smartphone application “WhatsApp” that he was then present at the Police Headquarters for the purpose of giving a witness statement stating inter alia that he had murdered his parents.
12.3. On 15 March 2013 Mr. Chau and a Mr. Tse Chun Kei (“Mr. Tse”) were arrested for the murder of the deceased, Mr. Chau’s parents. They were detained for further police investigation and were subsequently charged with two counts of murder on 17 March 2013. The two accused appeared before the Kowloon City Magistracy on 18th March 2013.
12.4 The arrest and charging of Mr. Chau and Mr. Tse in the double homicide case attracted overwhelming media attention and was widely reported by different newspaper publications in Hong Kong.
13. The extensive media reporting of the double homicide case was expected, given the surprising turn of events in this highly unusual case. The public had seen how Mr. Chau, who had initially approached the 2nd Defendant seeking assistance on his missing parents, was now charged with the murder of his parents. A collective decision was therefore made amongst the Newspaper’s editorial staff to instruct our reporters to find out what had happened, and to follow up on the events that had occurred since Mr. Chau had approached us on 13 March 2013.” (emphasis added)
(2) For Mr Li’s affirmation:
“9. The Plaintiff’s application arises from the 1st and 2nd Defendants’ reporting of a double homicide case. The events leading to the relevant publication are, in sum, as follows: -
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9.1 On or about 13th March 2013, a Mr. Henry Chau (“Mr. Chau”) and his elder brother approached the Apple Daily Newspaper in order to seek its assistance to locate their missing parents.
9.2 On about the night of 14th March 2013 or at the early hours of 15th March 2013, it came to our attention that Mr. Chau had made known to a chat-group through a smartphone application “WhatsApp” that he was then present at the Police Headquarters for the purpose of giving a witness statement stating inter alia that he had murdered his parents.
9.3. On or about 15 March 2013, Mr. Chau and a Mr. Tse Chun Ki (“Mr. Tse”) were arrested for the murder of Mr. Chau’s parents. They were detained for further police investigation and were subsequently charged with two counts of murder on or about 17 March 2013. The two accused appeared before the Kowloon City Magistracy on or about 18th March 2013.
9.4. The arrest and charging of Mr. Chau and Mr. Tse in the double homicide case attracted overwhelming media attention and was widely reported by different newspaper publications in Hong Kong.” (emphasis added)
8 These are matters said to be related to the “circumstances
leading up to the said publication” of the articles.
9 The questions that the plaintiff intends to ask Mr Cheung
and Mr Li by way of cross-examination are similar.3
10 In relation to Mr Cheung, they are as follows:
(1) Who informed or alerted Mr Cheung and Apple – and by
what means – of the fact that Mr Chau had made known to a
3 These questions are set out in the Department of Justice’s letter to the defendants’ solicitors dated 7 November 2013, requesting them to provide the answers.
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“WhatsApp” chat-group that (a) he was at the Police
Headquarters for the purpose of giving a witness statement
and (b) he had murdered his parents?
(2) Please identify the persons involved in the collective
decision described in paragraph 13 of Cheung’s Affirmation?
(3) What were the exact instructions (referred to in paragraph 13
of Cheung’s Affirmation) given by the Newspaper’s editorial
staff to the reporters?
(4) Who gave the said instructions?
(5) Who were the said instructions given to (ie, please identify
the reporters mentioned in paragraph 13 of Cheung’s
Affirmation)?
(6) Whether the said instructions were carried out and who
carried out those instructions?
(7) How and by whom were the information published in the
offending articles obtained?
(8) Please identify the author(s) of the offending articles?
(9) Whether or not the articles had been considered by
Mr Cheung before publication?
11 In relation to Mr Li, they are as follows:
(1) Who informed or alerted Mr Li and Sharp – and by what
means – of the fact that Mr Chau had made known to a
“Whatsapp” chat-group that (a) he was at the Police
Headquarters for the purpose of giving a witness statement
and (b) he had murdered his parents?
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(2) How and by whom were the information published in the
offending articles obtained?
(3) Please identify the author(s) of the offending article?
(4) Whether or not the article had been considered by Mr Li
before publication?
B2. The parties’ primary position
12 It is fairly not disputed by Mr Pun SC (for the defendants)
that the court does have the case management discretion to grant leave to
cross-examine defendants or witnesses in a contempt proceeding on the
evidence they seek to rely on. The governing principles in the exercise of
that discretion have been set out in Comet Products UK Ltd v Hawkex
Plastics Ltd [1971] 2 QB 67 and Re B (Contempt: Evidence) [1996] 1
WLR 627. They can be summarised (as helpfully set out in the plaintiff’s
skeleton) as follows:
(1) A respondent to an application for committal is a competent
but not compellable witness. Comet at 74E-F, 77D; Re B at
638A, 639C. Hence, Order 52, rule 6(4) provides that: “If
on the hearing of the application the person sought to be
committed expresses a wish to give oral evidence on his own
behalf, he shall be entitled to do so.”
(2) The court, in exercising the power to regulate its own
procedure, is entitled to require a respondent to swear
affidavits or produce statements of witnesses of fact on
which they may wish to rely and to file and serve the same
in convenient time before the hearing to permit proper
preparation of evidence in reply. Re B at 629D-E, 637H-
638D, 638G, 639C.
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(3) The applicant cannot make use of the respondent’s evidence
until the same is deployed by the respondent (by reading or
relying upon the same). A respondent who complies with
the court’s direction to file evidence is not in peril of cross-
examination until such time as he deploys the evidence in his
own case. Re B at 629E-F, 635B-H, 638D-G.
(4) Nevertheless, a respondent who has sworn and filed an
affidavit cannot withdraw it. One consequence of this is that
the applicant is entitled to make such use of the statements in
it as admissions helping his case against the respondent.
Comet at 74F-G, 77D.
(5) Where a respondent to an application for committal chooses
to file and rely upon affidavit evidence, he can be cross-
examined in the normal way. It would only be in a very
exceptional case that a judge ought to refuse an application
to cross-examine a deponent on his affidavit. Comet at 75G,
76G, 77F; Re B at 638B-C.
13 Although not disputing these principles, the primary ground
of opposition taken by Mr Pun is that the intended cross-examination
questions are simply irrelevant to the issue of sentence. Mr Pun also
submits that the plaintiff’s application should be refused on the basis that
the applications are oppressive in light of the trite principle that the
“prosecution” should not influence the court in regard of sentence by
advocacy and/or that they are no more than a fishing exercise which
interferes with the freedom of press as the questions in effect seek to
identify journalistic sources and the internal workings of the newspaper
organisations.
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14 It is accepted by Mr Jat SC (together with Mr Anthony
Chan) for the plaintiff that, as a starting point, the court must be satisfied
that the questions sought to be asked in cross-examination, and thus the
evidence coming out from it, are relevant to the issue of sentence, which
is the only material issue at the forthcoming hearing. And for that issue,
the relevance is as to whether the evidence to be extracted relates to the
culpability of the contemptuous acts committed by the defendants.
15 Notwithstanding the way in which the above questions were
drafted, Mr Jat confirms at the hearing that the plaintiff is not seeking to
elicit any information in relation to journalistic sources or the inner
workings of the newspapers. Moreover, the plaintiff is also not seeking
by way of these questions to identify any further persons potentially
liable for contempt.
16 Accepting that those questions could have been better
framed, leading counsel says these questions in fact are intended to elicit
evidence as to the manner in which the contemptuous acts were
committed, which is relevant to showing the gravity or culpability of the
“offence” vis-a-vis the defendants. The said evidence relates to:
(1) Whether the editors had considered the reliability of the
source of information relating to the WhatsApp messages
before relying on it to instruct the reporters embarking onto
the task of interviewing Mr Chau. This Mr Jat says would
show whether the editors and the newspapers had acted in a
“cavalier” manner in committing the contempt, which would
add to the gravity of the conducts (this relates to
Mr Cheung’s and Mr Li’s question (1)).
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(2) Whether there was any dissenting or cautioning opinion
raised in the “collective” decision to proceed with the
interview and publish the article, which would show whether
the editors made that decision in spite of being cautioned
against the risk of committing contempt. If so, again (says
Mr Jat) that would show that the editors and newspapers are
more culpable in committing the contempt than the situation
where no such cautioning reminders had been positively
raised (this relates to Mr Cheung’s question (2)).
(3) Whether it was the specific instruction of the editors that had
caused the reporters to go to SLPC where Mr Chau was kept
in custody as his purported friends to interview him. If so, it
would show that the editors intentionally and positively
instructed or caused the reporters to act in the way they did,
which may render the editors’ contempt a more culpable one
than a case where the editors and the newspapers are held to
be responsible for the reporters’ acts simply as a matter of
principle (this relates to Mr Cheung’s questions (3) and (6)).
(4) Whether the article in its final form as published is a product
solely of the reporters’ reporting, or whether it is a product
of say “creative” writing contributed by other editorial staff,
including the editors, based on the interview records. If it is
the latter, it is also relevant to sentence since it would be
(says Mr Jat) a more grave conduct to publish a
contemptuous article the contents of which is a result of the
defendants’ own “creation” (this relates to Mr Cheung’s
questions (7)-(8) and Mr Li’s questions (2)-(3)).
(5) Whether the editors had in fact seen and approved the article
before its publication, which is a factor that goes to the
question of whether they are more culpable in allowing such
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article to be published than a case when they did it without
in fact seeing them in the first place (this relates to
Mr Cheung’s question (9) and Mr Li’s question (4)).
17 Mr Jat further submits that all this evidence relates to or
arises from the defendants’ own evidence (which they wish to rely on in
mitigation) as set out in those relevant paragraphs of the affirmations.
The scope of the intended cross-examination therefore falls within the
principles laid down in Re B, where the court in the exercise of its case
management power can allow.
B3. Court’s view
18 With respect to Mr Jat, notwithstanding his very persuasive
submissions, I am not convinced that I should exercise my discretion in
the present case to allow those cross-examinations. My reasons are as
follows.
19 First, in relation to the evidence concerning the reliability of
the source of information about the WhatsApp messages, this must be
considered in the the present context that it is not suggested that what was
contained in the WhatsApp messages is inaccurate and also what was
reported in the article as to what was said by Mr Chau in the interview is
inaccurate. As such, I do not regard this evidence relevant to the
culpability of the defendants in the present circumstances. For example,
even if the defendants had not done anything to check the reliability of
the source of this information, given that there is no complaint that the
information was in fact false or inaccurate and which had then led to any
further conducts rendering the subject contemptuous acts (ie, the
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publication of the articles and video clip) more offensive or unacceptable,
I am unable to see how the failure to check the reliability of this source in
this case could be regarded by the court as a material aggravating factor
in considering sentence.
20 Second, all the rest of the suggested evidence that could be
obtained through the proposed cross-examination as set out in paragraph
16 (2) to (5) above is by its nature seeking to show that the editors are
more culpable in committing the contempt because they had actively and
intentionally caused the way in which the materials for the article were
obtained by the reporters, created or contributed to the content of the
article in its final form, approved the publication of it in that final form,
and made the decision to write up the article and publish it
notwithstanding any dissenting or cautioning reminders. I agree that in
principle, there could be a higher degree of culpability of the editors in
those circumstances (if the evidence so supports) than the situation where
the editors are “passively” held to be responsible for the article as written
and published in its final form solely because they are the ultimate
responsible officers in the hierarchy.
21 However, I am not persuaded that in the present context, I
should exercise my discretion to require the editors to be cross-examined
on these matters. This is so because, as far as I understand it from the
editors’ affirmations and from the submissions put forward by the
defendants in these applications, it is not the defendant’s case of
mitigation that there should be a more lenient sentence because (a) they
had in fact checked the reliability of the source of information; (b) they
had not specifically instructed or caused the reporters to do what they did
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in securing the interview; (c) they were not involved in the writing up of
the articles; (d) they had not read them before publication; and/or (e) it
was a unanimous collective decision. In such circumstance, and in light
of the trite position (as submitted by Mr Pun) that the prosecution is not
to influence the sentence by advocacy or say anything that could be taken
as advocating severity,4 I do not think it is right to exercise my discretion
to give leave for cross-examination to effectively require the defendants
to come forward and give further and positive evidence to establish these
potential aggravating factors when their mitigation does not materially
rely on those aspects of the evidence.
22 In this respect, it is accepted by Mr Pun that, for the purpose
of sentence, the editors as the ultimate responsible office-holders are in
any event responsible for the conducts of the reporters, the final content
of the article and the decision to publish it. Coupled with the
observations set out in paragraph 21 above, I think it is a fortiori that I
should not exercise my discretion to allow cross-examination on those
proposed matters in the circumstances of the present case.
23 Finally, given Mr Jat’s clarifications as recorded at
paragraph 15 above, there is no question that these applications represent
a fishing exercise and an attempt to interfere press freedom. I therefore
do not find it necessary to deal with this ground of objection.
24 For these reasons, I do not think enough has been shown to
justify the court to grant leave to the plaintiff to cross-examine
Mr Cheung and Mr Li in the forthcoming hearing in September.4 See Code of Conduct of the Bar of the Hong Kong Special Administrative Region,
paragraph 163; AG v Jim Chong-shing [1990] 1 HKLR 131 (CA) at 152C-F.
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25 I would however put two caveats here.
26 First, my conclusion in this decision is premised to a large
extent on the court’s understanding of the defendants’ mitigation position
as observed at paragraph 21 above. The court will be prepared to revisit
this question of cross-examination if the defendants run their mitigation at
the September substantive hearing differently from that understanding.
27 Second, I wish to make it clear that this decision should not
be read as suggesting that in all circumstances the type of evidence
outlined by Mr Jat above cannot be regarded as relevant or that no cross-
examination on those types of question could be allowed. My conclusion
above, as I have emphasised, is only limited to the particular
circumstances of this case.
C. CONCLUSION
28 I will refuse the plaintiff’s applications and dismiss the
summonses.
D. COSTS
29 Although the plaintiff is unsuccessful in these applications, I
fully note Mr Jat’s submissions that the plaintiff in making the
applications is only seeking to bring to the court’s attention as early as
practicable to these potential matters which the plaintiff thinks may well
be relevant to the questions of sentence. These applications are taken out
to avoid any arguments or contentions at the substantive hearing that
these matters should have been raised earlier. These applications are
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therefore made consistent with the observations in Re B at 638C-G and
with the objective to assist the court in properly case-managing these
proceedings. The plaintiff should not be penalised in costs even if he
fails in the application.
30 I accept Mr Jat’s submissions. In particular, although I
refuse the application, I do not think it was unreasonable for the plaintiff
to regard it as at least arguable that the suggested evidence he sought to
bring out through cross-examination might well be relevant to the
question of sentence and thus feel necessary to bring the matter to the
attention of this court as early as practicable to enable the parties to
properly prepare for the substantive hearing and to avoid any unnecessary
adjournments, see: Re B at 638C-G. Moreover, the applications would
also obviate the possibility that, at the substantive hearing, the court of its
own motion may come to the view that this type of evidence is relevant to
sentence in light of the defendants’ affirmations. It is therefore right for
the plaintiff to bring these matters to the court’s attention by way of these
applications to clarify the position.
31 I would therefore make an order nisi that there should be no
order as to costs of these applications. This order shall become absolute
14 days from today unless any of the parties applies to vary it.
32 Lastly, I wish to thank counsel for their assistance in this
matter.
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(Thomas Au)Judge of the Court of First Instance
High Court
Mr Jat Sew Tong SC and Mr Anthony Chan, instructed by Department of Justice, for the plaintiff in both cases
Mr Hectar Pun SC, Ms Denise Souza and Mr Anson Wong Yu Yat, instructed by Peter Cheung & Co, for the 1st – 2nd defendants in HCMP 1851/2013
Mr Hectar Pun SC and Mr Albert NB Wong, instructed by Peter Cheung & Co, for the 1st – 2nd defendants in HCMP 1852/2013
