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Wong Yeung Ng v Secretary for JusticeMortimer V-PCA 293

Wong Yeung Ng

and

Secretary for Justice

(Court of Appeal)(Civil Appeal No 161 of 1998)

Mortimer V-P, Mayo and Leong JJA13 December 1998, 9 February 1999

Criminal law and procedure contempt of court scandalising the court requirements statement or conduct that was calculated to interfere withadministration of justice in widest sense test was whether real risk thatadministration of justice would be interfered withHuman rights freedom of expression permissible restrictions contemptof court by scandalising the court whether to constitute necessaryrestrictions there should be real, substantial and imminent danger as opposedto real risk that administration of justice would be interfered with realrisk sufficient Hong Kong Bill of Rights Ordinance (Cap.383) art.16(2),(3) International Covenant on Civil and Political Rights art.19

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294 HONG KONG LAW REPORTS & DIGEST [1999] 2 HKLRD

as a continuing process, that the contempt of scandalising the court would becommitted if there was a real risk that public confidence in the dueadministration of justice would be undermined. This was in contrast to theCanadian system. Under the freedom of expression in the Canadian Charterof Rights and Freedom: (a) protection of the administration of justice as acontinuing process was unconstitutional; and (b) a contempt could not becommitted unless it interfered with the fair trial of present or pendingproceedings, the test for this being whether there was a real, substantial andimminent danger to the administration of justice. The main issue raised onappeal was whether in order for the contempt of scandalising the court toconstitute a necessary exemption to the freedom of expression under art.16of the Hong Kong Bill of Rights or art.19 of the International Covenant onCivil and Political Rights (ICCPR), the real risk test was sufficient, or whetherthe more stringent real, substantial and imminent danger test was required.In relation to this, the Court considered why it was necessary to protect theadministration of justice as a continuing process in Hong Kong, when thiswas not required in Canada or America.

Other issuesThe first contempt related to a three day, 24-hour paparazzi type pursuit ofGodfrey JA, with subsequent reports. The declared purpose of the pursuit wasto educate Godfrey JA on the meaning of paparazzi but its real purposewas to take revenge for one of the decisions and to punish the Judge. TheDivisional Court found that the pursuit amounted to a wrongful interference inthe administration of justice, as it was conduct that was calculated to underminepublic confidence in the administration of justice. D argued on appeal that asGodfrey JA would not have been influenced by the pursuit, therefore there wasnot a real risk that public confidence would be undermined. Finally D arguedthat the sentence was manifestly excessive.

Held, dismissing the appeal, that:(1) (Per Mortimer V-P) In order to establish the contempt of scandalising

the court, proof was necessary that the statement (or conduct) wascalculated to interfere with the administration of justice in its widest sense;that it involved a real risk that the due administration of justice wouldbe interfered with and (the mental element) that there was an intention tointerfere with the administration of justice, or recklessness, by appreciatingthis possible consequence and ignoring it. (See p.312FH.)(a) The freedom of expression and of the press were given specific

protection in the Bill of Rights and the Basic Law. Their importancein Hong Kong could not be overestimated. This must be the startingpoint. (See p.308B.)

(b) The word necessary in the ICCPR and Bill of Rights should begiven its ordinary meaning rather than other formulations underinternational covenants (Ming Pao Newspapers Ltd v A-G (1996) 6HKPLR 103 followed). (See p.309A.)

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(c) Different countries guaranteed the right to freedom of expression indifferent ways but each country permitted restrictions to be imposedby way of the offence of contempt of court if it was necessary toprotect its administration of justice. Each country adopted its owntest as to what was necessary. What was a necessary exemptiondepended upon the nature of the contempt what must be provedto establish it and local circumstances in which the due administrationof justice had to be maintained. (See pp.312A, 329BC.)

(d) The real risk test was sufficient for the contempt of scandalisingthe court to be a necessary exemption to the freedom of expressionin Hong Kong. Protection of the administration of justice as acontinuing process was a necessary exemption. First, Hong Kongwas part of the Commonwealth tradition, which attached greatimportance to the preservation of all the factors which contributedto the due administration of justice as a continuing process aswell as the integrity of proceedings in progress or in contemplation.Secondly, the particular circumstances of Hong Kong required this.The Hong Kong legal system was relatively small. Communicationwith a very substantial proportion of the population was easilyachieved. Confidence in the legal system, the maintenance of therule of law and the authority of the court were matters of specialimportance in Hong Kong (R v Kopyto (1988) 47 DLR (4th) 213not followed; Solicitor General v Radio New Zealand Ltd [1994] 1NZLR 48 followed). (See pp.311H313E.)

(e) Courts and judges were not immune from criticism. Theymust rely upon merited good reputation for protection against bonafide censure even if it was fierce and misguided. The administrationof justice in Hong Kong was held in high repute and enjoyed generalconfidence and respect. Therefore it had little to fear from bona fide,temperate and rational criticism. Like many public institutions, itstood to benefit from, rather than be damaged by, such criticism especially if constructive. Also, such criticism was susceptible toreasoned answer and even acceptance. However, a scurrilous andpreposterous attack which might be recognised for what it was, wasmore likely to result in risk than a rational attack. Such attacks werenot susceptible to a reasoned answer. If they continued uncheckedthey would almost certainly lead to interference with theadministration of justice (Ambard v A-G for Trinidad and Tobago[1936] AC 322, R v Commissioner of Police of the Metropolis, ex pBlackburn (No 2) [1968] 2 QB 150 considered). (See pp.309BE,312H313E.)

(2) (Per Stuart-Moore JA) Having regard to the scurrilous and abusive natureof the articles, the wide reach of the publication and particularly theduration of the attack on the Judiciary, there could be no doubt that acontempt had been established (Solicitor General v Radio New ZealandLtd [1994] 1 NZLR 48 applied). (See p.324DE.)

Wong Yeung Ng v Secretary for Justice

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Other issues(3) (Per Mortimer V-P, Leong JA) As to the pursuit, what was at issue was

not the narrow question of whether Godfrey JA would have beeninfluenced in his judgment; no judge in Hong Kong would be influencedby the pursuit or anything like it, but the much wider question of whetherthe pursuit would lead to the undermining of public confidence. Here,there was a real risk that the public might have been led to think thatjudges might not act independently or fairly for fear of punishment bythose against whom the decision had been made and thereby confidencein the due administration of justice would be undermined (A-G vButterworth [1963] 1 QB 696 applied). (See pp.314G315H, 330AE.)

(4) (Per Mortimer V-P) These contempts were probably the most seriousexamples of media contempts which the courts in the common law worldhad ever encountered. The starting point of 8 months imprisonment wasnot manifestly excessive for offences of this persistence and seriousness;it was in all respects moderate. Further, generous weight had been givento the substantial mitigating factors. (See pp.315I317E.)

[Editors note: The appellant was refused leave to appeal to the Court of FinalAppeal.]

Mr Sydney Kentridge QC, Mr Cheng Huan SC and Mr Jason Pow, instructedby Iu, Lai & Li, for the appellant.

Mr Ronny Tong SC and Mr Johannes Chan, instructed by the Department ofJustice, for the respondent.

Legislation mentioned in the judgment:Basic Law of the Hong Kong Special Administrative Region art.27Contempt of Court Act 1981 [Eng]Hong Kong Bill of Rights Ordinance (Cap.383) arts.10, 16, 16(2), (3)(b)

Cases cited in the judgment:Ambard v A-G for Trinidad and Tobago [1936] AC 322A-G v British Broadcasting Corp [1981] AC 303A-G v Butterworth [1963] 1 QB 696A-G v Cheung Kim Hung & Another (1997) 7 HKPLR 295A-G v Lingle [1995] 1 SLR 696A-G v Mundey [1972] 2 NSWLR 887A-G v Times Newspaper Ltd [1974] AC 273Badry v DPP of Mauritius [1983] 2 AC 297Bridges v State of California (1941) 62 S Ct 190, 314 US 252Chokolingo v Law Society of Trinidad and Tobago (1978) 30 WIR 372Gallagher v Durack (198283) 45 ALR 53McLeod v St Aubyn [1899] AC 549Ming Pao Newspapers Ltd v A-G (1996) 6 HKPLR 103, [1996] AC 906R v Central Independent Television Plc (CA) [1994] Fam 192

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R v Commissioner of Police of the Metropolis, ex p Blackburn (No 2) [1968] 2QB 150

R v Dunbabin, ex p Williams (1935) 53 CLR 434R v Gray [1900] 2 QB 36R v Kopyto (1988) 47 DLR (4th) 213R v Odhams Press, ex p A-G [1957] 1 QB 73Secretary of State for Defence v Guardian Newspapers [1985] AC 339Solicitor General v Radio Avon Ltd [1978] 1 NZLR 225Solicitor General v Radio New Zealand Ltd [1994] 1 NZLR 48Sunday Times, The v United Kingdom [1979] 2 EHRR 245

Other materials mentioned in the judgment:Canadian Charter of Rights and FreedomsEuropean Convention on Human Rights art.10International Covenant on Civil and Political Rights art.19New Zealand Bill of Rights

Mortimer V-P:On 23 June 1998, the appellant, Wong Yeung Ng, was convicted of twocontempts of court and sentenced to a total of 4 months imprisonment by aDivisional Court (Chan CJHC and Keith J, [1998] 2 HKLRD 123). At the timeof the contempts, the appellant was editor of the Oriental Daily News. TheOriental Press Group Ltd, a public listed company, is the de facto ownerpublisher and controller of the Oriental Daily News. The Oriental Press Groupwas also convicted and fined $5 million but does not appeal.

The amended notice of motion were that the appellant, the Oriental PressGroup and others (who were acquitted) committed contempts of court:

(a) by seeking to threaten, harass and/or intimidate Godfrey JA during13, 14 and 15 January 1998 (by having him pursued by theiremployees and/or agents and/or others) in order to influence hisfuture judicial decisions, all by reason of a judgment which he hadpreviously delivered, thereby wrongfully interfering with theadministration of justice, and

(b) in printing, publishing or instigation such printing or publishing thearticles, considered in isolation and considered cumulatively, as setforth in the copy amended statement (the amended statement) servedherewith used on the application for leave to issue this notice ofmotion, in the issues of the Oriental Daily News on 11 December1997, 12 December 1997, 13 December 1997, 15 December 1997,12 January 1998 and 13 January 1998 upon the grounds set forth inthe amended statement. (Emphasis supplied.)

The contempt alleged in (a) became known below as the pursuit of GodfreyJA and (b) as scandalising the court.

In each case it was said that the conduct of the defendants had interferedwith the due administration of justice as a continuing process. It was not

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suggested that any attempt was made to influence the outcome of particularproceedings either pending or in progress.

Further, to avoid repetition, interference with the administration of justiceas a continuing process may take many forms which include diminishing theauthority of the court, bringing the court into disrepute and reducing publicconfidence in the system.

The appellant and the Oriental Daily NewsThe Oriental Daily News is the most popular daily newspaper in Hong Kongwith 2.3 million readers and 53% of the vibrant newspaper market. It isobviously influential.

The appellant was the editor of the Oriental Daily News at the time of theevents complained of and he was fully responsible for them.

The backgroundThe second contempt was the first in time. Reacting to adverse decisions of theCourt and the Obscene Articles Tribunal, prolonged attacks were made upon theJudiciary and the Court. The Divisional Court described the articles as follows:

Apart from being abusive, offensive and scurrilous, the remarks containedracial slurs. There can hardly be any justification or basis for such remarksin what members of the Obscene Articles Tribunal (OAT) and the Judgesdid and there was nothing in the article purporting to explain why theyshould be given such descriptions. These remarks were neither rationalnor reasonable. Secondly, the article impugned the integrity of the Judgesand members of the OAT. Thirdly, what was said in the last two paragraphsof the article amounted to a threat to members of the OAT and theJudges. The phrase to wipe you all out, coupled with the warning in thelast sentence at the end of the article, particularly when they were repeatedin English, strongly smack of a threat to do something harmful or unpleasantto members of the OAT and the Judges.

Mr Sydney Kentridge QC, who appears for the appellant, has no quarrel withthat description. In his submissions he did not seek to minimise the offensivenessof the articles which he described as shocking, reprehensible and greatly to bedeprecated.

By the first alleged contempt, the Oriental Press Group and the appellant soughtto punish Godfrey JA for a judgment he had delivered by having him beset andpursued round-the-clock by numbers of their reporters and photographers.

The Faye Wong caseThese contempts followed two cases before the Hong Kong Courts. In the first,known as the Faye Wong case, a photograph of the singer was taken by an

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Oriental Daily News reporter at Beijing Airport without her consent. She waspregnant. The photograph was published on the front cover of the Sunday Weeklypublished by Oriental Sunday Publisher Ltd, a subsidiary of the Oriental PressGroup. Apple Daily, a competitor, published the front page including thephotograph. The Oriental Press Group and the publisher brought an action forbreach of copyright. Rogers J (as he then was) awarded them $8,001 damagesbut on the basis of a previous offer he ordered them to pay Apple Dailys costs(see [1997] 2 HKC 515).

The Oriental Press Group and the publisher appealed. On 19 September1997 the Court of Appeal dismissed the appeal on damages and later varied theorder for costs by making no order for costs below, but ordering the OrientalPress Group and the publisher to pay two-thirds of the costs of the appeal (see[1997] 2 HKC 515).

Godfrey JA delivered the judgment of the Court, towards the end of whichare some obiter remarks upon the privacy of public figures (see [1997] 2 HKC515 at pp.529I530B):

Public sentiment has turned, or seems to be turning , against those who areguilty of invasion of the privacy of public figures by taking their photographsfor large sums which reflect the cupidity of the publishers and the prurienceof their readers. The time may come when, if the legislature does not step infirst, the Court may have to intervene in this field (as Lord Bingham of CornhillLCJ, has recently suggested in England); for example, by holding that theprotection of copyright will not be extended to photographs of public figurestaken on private occasions without their consent.

On 8 January 1998, the same Court refused an application by the Oriental PressGroup and the publisher for leave to appeal to the Court of Final Appeal. Thecase had progressed no further at the time of the contempts.

The obscene articles caseThe second case involved the Obscene Articles Tribunal (OAT). In June1996 the Oriental Daily News published several photographs of women in thenude. These photographs were classified as indecent by the OAT. The samephotographs were published in another local Chinese newspaper and weresimilarly classified. The other newspaper successfully appealed but the casewas remitted to the OAT who again classified the photographs as indecent.

The publisher of the Oriental Daily News also appealed to the High Court.This was dismissed. On 28 October 1997, a further appeal to a Court differentlyconstituted to that in the Faye Wong case dismissed the appeal (see [1997]3 HKC 93). The Court accepted the publishers submission that the OATwas obliged to give reasons but held that those given were sufficient. On10 December 1997, the Court of Appeal refused the publishers leave to appealto the Court of Final Appeal. That is as far as the second case had progressedbefore the contempts.

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The earlier articlesThere were earlier articles before those complained of on the same subjectmatter. The Divisional Court thought they set the tone for what was to come.The first of these on 22 September 1997, a few days after the Court of Appealhad dismissed the Oriental Press Groups appeal in the copyright case. Apartfrom arguing that Godfrey JAs judgment was in error, it wrongly suggestedthat the Judge equated the photographer of Faye Wong with paparazzi whopursued Princess Diana. There were extravagant personal attacks on the Judgewho was described variously as ignorant, unreasonable, ridiculous, arbitrary,prejudicial and arrogant. It was said that the Judiciary were unfair to theOriental Press Group and that since 1995 the British-Hong Kong Governmenthad intensified its persecution of the Oriental Press Group through the policeand the OAT.

On 30 October 1997, two days after the newspapers appeal had beendismissed in the obscene articles case, the Oriental Daily News published aspecial feature Special Page on the Denouncement of the Tribunal. Earliercases were described and hostility, persecution and discrimination by theTribunal against the Oriental Press Group was alleged.

The next day, 31 October 1997, several pages of photographs were publishedwith short articles. Included were photographs previously classified as indecentin respect of which appeals to the Court had failed. As the Divisional Courtsaid (see [1998] 2 HKLRD 123 at p.136C):

The re-publication of these photographs was nothing less than a defianceof the Courts decision and a challenge to the rule of law.

The articles from 17 November focused on the Obscene Articles Tribunal.The names of the 157 members were published and they were generally reviled.For example, they were described as scumbags.

On 10 November 1997, with increasing enthusiasm an article described themembers of the Tribunal variously dogs and bitches, tortoises havingretreated into their shells, having to run for cover like a rat in the gutter,scumbags, public enemy of freedom of the press and a public calamity tothe six million citizens of Hong Kong.

On 9 December 1997, the Court of Appeal set aside the costs order of RogersJ. On 10 December, another division refused leave to appeal to the Court ofFinal Appeal in the obscene articles case. These events rekindled the fire and led to a series of articles between 11 December 1997 and 15 December1997, the subject of complaint.

The articles complained ofI gratefully accept the Divisional Courts unchallenged account of these articles,the impact of which can only be appreciated if set out in detail (see [1998] 2HKLRD 123 at pp.137E140I):

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(1) 11 December 1997. On that day, two articles were published in theOriental Daily News. The first article was published in the Kung Fu Teacolumn with the heading: The Swinish White-skinned Judges and theCanine Yellow-skinned Tribunal. The article criticised the OAT and thetwo Judges, namely, Rogers J and Godfrey JA for attacking the OrientalPress Group. The OAT and its members were described as mangy yellow-skinned dogs which wrongly accused the Group of publishing indecentand obscene articles. The two Judges were described as British whiteghosts and white-skinned judges or pigs who deliberately ruled againstthe Oriental Press Group resulting in it having to incur huge legal costs topursue its actions. Towards the end of the article, there were the followingpassages:

Oriental does not care if you are yellow-skinned or white or a pigor a dog. In our self-defence, we are determined to wipe you allout!

Here, Kung Fu Tea warns the pigs and dogs: dont you botherme again. Otherwise, when I counterattack in self-defence, youwill regret it exceedingly you will regret it! I repeat: you will regretit very much!

The article was written in Chinese but the latter part of the last sentencequoted above was expressed in English which is commonly used as orunderstood to mean a spiteful warning.

Apart from being abusive, offensive and scurrilous, the remarkscontained racial slurs. There can hardly be any justification or basis forsuch remarks in what members of the OAT and the Judges did and therewas nothing in the article purporting to explain why they should be givensuch descriptions. These remarks were neither rational nor reasonable.Secondly, the article impugned the integrity of the Judges and membersof the OAT. Thirdly, what was said in the last two paragraphs of thearticle amounted to a threat to members of the OAT and the Judges.The phrase to wipe you all out, coupled with the warning in the lastsentence at the end of the article, particularly when they were repeatedin English, strongly smack of a threat to do something harmful or unpleasantto members of the OAT and the Judges. It must be borne in mind thatthe newspaper had in an earlier article published all the names of theOAT members. While Judges are professional and experienced persons,members of the OAT are laymen. Even if Judges may not treat suchwarnings seriously, the effect on lay members of the OAT who areperforming a public function as part of the administration of justice couldbe quite intimidating.

Another article which was published on the same day was entitledRogers Despicableness and Godfreys Derangement. It was written bythe newspapers commentators. The article criticised the decisions ofRogers J and Godfrey JA in the copyright case. It alleged that Rogers J had

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deliberately ruled against the Oriental Press Group and was guilty of sucha despicable act of abstract confirmation and concrete negation by way ofdouble dealings (which) has always been characteristic of British politicians.It also contained the following passages:

The crux of the problem is that there exists in the Hong Kongjudicial sector a bloc of colonial remnants. They harbour animositytowards Oriental.

The Obscene Articles Tribunal is attached to the judiciarysystem. It is merely a tail-wagging dog outside the judiciary. All ofthe adjudicators kept by the Tribunal are stupid men and womenwho suffer from congenital mental retardation and have no commonknowledge worth mentioning.

The Obscene Articles Tribunal is the main culprit in wrongingOriental. We have the name list of those ignorant adjudicators,and we will punish them on just grounds. The masters of thoseyellow-skinned canine adjudicators are none other than thelikes of Rogers and Godfrey, the sheltering and condoningjudicial scumbags and evil remnants of the British Hong KongGovernment.

After 1 July 1997, they have continued to occupy their stolenprominent places in the judicial sector. They, together with thevicious yellow-skinned adjudicators, have methodically attacked,harassed, and persecuted the publications under the Oriental NewsGroup.

Here, we solemnly issue a warning: irrespective of race andstatus, effective action to restore full righteousness will be takenagainst those scumbags and demons who oppress freedom of thepress.

There was hardly any rational discussion in these articles. It can be seenthat the abusive and scurrilous attacks were intensified and the racial slurswere repeated. The status of the OAT was depreciated and its memberswere insulted. The repute of the Judges was smeared and their integritycast into doubt. They were accused of having deliberately abused theirposition for illicit motives. Members of the OAT were also threatenedthat their names were in the hands of the newspaper and that they wouldbe punished.

(2) 12 December 1997. There was an article written in the Kung FuTea column on that day. It was entitled Readers voiced their supportin slapping canine adjudicators. This article claimed to have receivedmany phone calls and letters of support from their readers. It referred tothe Kung Fu Tea (having) stripped off (the Judges) wigs and trampledthem underfoot, and has also separated their flesh from their bonesand boiled them in a soup. The article also quoted a letter from a readercalled Mr Leung. It quoted from the letter as follows:

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Capitalising on the pre-eminent status, the Justices treat the lawas a game. They can wreak whatever havoc they like, and theycomplacently dare anyone who has the courage to challenge them.Oriental Daily News has given them a sound tongue-lashing Someone has had the courage to pull off the tigers whiskers andremove the dragons scales Someone has torn off their designerbriefs that conceal their deficiencies and expose the ringworm,scabies and syphilis that they have hidden under their solemn blackgowns.

The article also referred to the Judges and members of the OAT as havingbecome street rats who are being spat on and cursed everyday.

It is quite clear that the article adopted the contents of the readersletter by quoting them verbatim. If there were indeed such letters fromreaders, as the newspaper claimed, the campaign had apparently takeneffect on the public confidence in the administration of justice. The languageused was increasingly vulgar and the threat on the judges and membersof the OAT was most vivid and alarming.

(3) 13 December 1997. The next article was published on 13December 1997 which was shortly after the Court of Appeal refusedleave to appeal to the Court of Final Appeal in relation to the OAT case.The article criticised the decision of the Court of Appeal in refusing leave.It also alleged that the Judges of the Court of Appeal were prejudicedagainst the Oriental Daily Group and sided with the OAT to harm them.

(4) 15 December 1997. On that day, the newspaper published anotherarticle in the Kung Fu Tea column in response to a report in the SouthChina Morning Post written two days previously saying that the Judiciaryand the Department of Justice were considering prosecuting the OrientalDaily News for spreading racism in its articles. The article purported tojustify the allegations which the newspaper had previously made. It accusedRogers J of having shown animosity to and deliberately attacked theOriental Press Group and Godfrey JA of showing prejudice against them.However it went further and said:

All of the charges were unwarranted and aimed at letting out angerat Orientals refusal to obey British Hong Kong Government andits insisting independence in the operation of its newspaper.

The Tribunal became an implement used by the British HongKong Government to attack political dissidents. It persecutedOriental unceasingly. Following his assumption of office, Chris Pattenattempted to rope Oriental in and turn it into his political tool, butOriental rejected him. He nursed hatred in his heart and directedvarious Government departments to harass and provoke Orientalnon-stop!

After 1 July 1997, Hong Kong is PRC territory, but centipedesremained supple after death. Having left the corpse of the colonial

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Government, the ferocious demons in the form of the Tribunaland the Justices have resettled in the body of the SAR Government.As before, they treat Oriental viciously. The verdicts of the FayeWong case and that concerning the three photographs were passedafter the transfer of sovereignty on 1 July 1997, which, in turn,indicates that even though Hong Kong has become PRC territory,the demons are still careering frantically and are very active. Underthe SAR Government and Chief Executive Tung Chee Hwa, thedemons carry on the British Hong Kong authorities unfinishedbusiness and continued to let out the anger on Oriental.

Last week, the likes of Rogers and Godfrey were soundly andrighteously denounced by Kung Fu Tea. Oriental treats all evilinfluences equal. We will absolutely not administer lighter blowson white-skinned pigs while hating Chinese yellow-skinned dogsmore. In our counterattack of self-defence, we strike heavy blowsand do not care if they are officials or not!

After the handover of sovereignty on 1st July and under theSAR Government and Tung Chee Hwa administration, those white-skinned pigs and yellow-skinned dogs who are evil remnants of theformer government have not ceased their attack of Oriental.

The allegation of animosity and bias was again repeated. The abusive,offensive and scurrilous attacks with their racial slurs persisted. The OATand the Judges were accused of having continued the persecution of theOriental Press Group which was begun by the former Governor. Theywere alleged to have been the instruments of political persecution of theBritish Hong Kong Government and perpetrated such persecution by theirdecisions and judgments. They had a political motive to serve while theywere discharging their judicial duty.

After the Court of Appeal refused leave to appeal to the Court of Final Appealin the Faye Wong case, on 8 January 1998 an article appeared in the OrientalDaily News under a heading containing the words the Judiciary ContravenesSocietys Laws and Principles; Oriental Is Prepared to Sacrifice Everything inthe Final Battle. The article contained the following passages (see [1998] 2HKLRD 123 at pp.141B142A):

For years, the Oriental Press Group was subjected to the methodicalpolitical persecution inflicted by the Hong Kong Judiciary system that wasmanipulated by the former colonial Government. Such persecution had along history. The so-called Obscene Articles Tribunal, which was underthe Judiciary, harassed Oriental repeatedly.

Oriental has spared no efforts in destroying the public authority of theso-called Obscene Articles Tribunal. Its image has been torn to shreds,and it is on the verge of disintegration and extinction. Each of the so-called adjudicators has become a public enemy like a street rat.

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Although the Tribunal, which is under the Judiciary, has collapsedentirely, High Court and Court of Appeal Judges like Rogers and Godfreyand certain yellow-skinned Judges of Chinese descent have continued toexercise their political role of persecuting Oriental. Personalities atincreasingly senior levels are involved, and the extent has broadened. Whatis especially adverse is that such a form of political persecution has notterminated with Hong Kongs reversion to Chinese rule upon 1 July 1997.Very much the opposite, the Hong Kong SAR Government under thePeoples Republic of China has adopted a condoning attitude and giventhe Judiciary system that has sheltered a large number of evil remnants ofthe former Government a free hand in persecuting Oriental endlessly.More blatantly than ever, they have passed sentence after sentence thatis tinged with prejudice and indifferent to public righteousness.

The Tribunal and the Justices followed in the footsteps of the politicalinfluences that were persecuting Oriental. The Judiciary of the Hong KongSAR is a member of the political bloc that persecutes Oriental. The judicialmeasures it has employed after 1 July 1997 to continue to attack Orientalare part of the entire operation.

It was at that time that the so-called Obscene Articles Tribunal started toharass Oriental nonstop. After the transfer of Hong Kongs sovereignty toChina on 1 July last year, the despicable role of persecuting Oriental hasbeen formally assumed by Judges of the High Court and the Court of Appeal.They have inherited the mantle of that role and taken up the unfinished anti-Oriental historical mission of Ford the racist and Patten the colonial governor.

Under the SAR administration, the biased attitude of the Hong Kongjudicial system has remained unchanged and even intensified. They donot restrain themselves from treating Oriental unfairly, and they are gettingincreasingly extreme.

We are utterly disgusted with the incessant persecution dealt out bythe HKSAR Judiciary, and our toleration is quite limited.

To staunchly defend the truth, we are determined to fight to the lastbullet to wipe out the enemy and defend ourselves.

The effect of the articlesThe meaning is clear. For the reasons set out, it was said the Oriental PressGroup was the target of a biased Judiciary which was pursuing a conspiracy ofpolitical persecution started under the former colonial government. The OrientalPress Group had destroyed the authority of the OAT and would now attack theJudiciary in every possible way in order to destroy its authority.

As the Divisional Court pointed out, the last article was a prelude to theharassment of Godfrey JA. On 13 January 1998, the next day, a number ofarticles on the subject repeated the earlier (erroneous) allegation that GodfreyJA had accused the taker of the Faye Wong photographer of being a paparazzoand announced that it would begin a pursuit of the Judge. It described whatlater happened.

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A team of reporters started to pursue the Judge around the clock in his dailylife. He was advised in the newspaper not to take any false steps. Photographsand articles appeared the next day detailing the Judges movements to andfrom Court, the cases in which he was involved and the times when he left theCourt building and returned at lunch time. Brief extracts of dialogue with theJudge were reported together with descriptions of his composure.

Other media organisations were invited to send their reporters to join in.They came to report the event. The operation continued on 14 and 15 January1998, accompanied by articles. But on 15 January 1998 an editorial repeatedthe conspiracy allegations but said that the operation had achieved its purposeof educating Godfrey JA upon the meaning of paparazzi and therefore theoperation would cease at midnight. It did.

The motiveThe avowed purpose of the harassment was to educate Godfrey JA but the natureof the articles written before, during and after the pursuit and the times of somecompared with the progress of the cases demonstrated otherwise. Consequently,the Divisional Court found that the real purpose of the pursuit was to take revengefor the Courts decision against the Oriental Press Group and punish the Judge forhis decision. Put more bluntly it was to teach the Judge a lesson for findingagainst the Oriental Press Group in the Faye Wong case.

I note in passing that the judicial process in neither the Faye Wong case northe OAT was then complete. Later, leave to appeal was granted by the Court ofFinal Appeal in each, and in due course, both appeals were allowed.

The Divisional Courts decisionThe Divisional Court found the appellant guilty of both contempts. The second(but first in time) was for scandalising the court and thereby undermining publicconfidence in the administration of justice by publishing the articles between11 December 1997 and 12 January 1998. It found that there was a real riskthat the articles complained of would undermine confidence in the administrationof justice in the minds of at least some of the persons who were likely to havebecome aware of the particulars of the acts complained of.

The second was for interfering with the administration of justice as acontinuing process. This concerns the pursuit of Godfrey JA and the light thrownupon it by the accompanying articles. Again, the Court held that the pursuit ofGodfrey JA constituted a real risk that the administration of justice as acontinuing process would be interfered with in the sense that public confidencein its due administration would be undermined. Indeed, the Court decided thatthere was a very real likelihood of this. It added that there was no risk thatthe administration of justice would be actually affected but some of thereadership would think it a possibility and that if tolerated, the conduct wouldgive rise to the misconception that such conduct by a losing party to litigationis permissible.

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Arguments that these offences were incompatible with both the Hong KongBill of Rights Ordinance (Cap.383) and the Basic Law were rejected.

Scandalising the court the appellants caseIn Secretary of State for Defence v Guardian Newspapers [1985] AC 339 atp.347A Lord Diplock was of the opinion that contempt for publishing materialwhich scandalises the court was virtually obsolescent. But Mr Kentridge doesnot seek to argue for the appellant that such contempt no longer exists. Hesubmits that the Court below was wrong to hold on the facts of this case thatthis contempt had been committed under Hong Kong law. In short, he submitsthat the Divisional Courts finding that in order to establish this contempt itwas necessary to show that the conduct involved a real risk of interferencewith the administration of justice was wrong. Further, that if the correct testhad been applied the offence is not made out.

Given that the attacks were mala fide, scurrilous, abusive, shocking andreprehensible, he submits that the fundamental rights of freedom of expressionand freedom of the press given under art.16 of the Hong Kong Bill of RightsOrdinance, art.27 of the Basic Law and the International Covenant on Civiland Political Rights (the ICCPR) as incorporated in the Basic Law, protect theappellant unless it can be shown that the statements and conduct werenecessary exceptions to the rule. This cannot be demonstrated unless on theevidence the risk to the administration of justice was real, substantial andimmediate.

The substance of the submission is that the real risk test is insufficient toestablish a necessary exemption to the fundamental rights provided by art.19of the ICCPR and art.16 of the Hong Kong Bill of Rights Ordinance:

(2) Everyone shall have the right to freedom of expression; this rightshall include freedom to seek, receive and impart information andideas of all kinds, regardless of frontiers, either orally, in writing or inprint, in the form of art, or through any other media of his choice.

(3) The exercise of the rights provided for in paragraph (2) of this articlecarries with it special duties and responsibilities. It may therefore besubject to certain restrictions, but these shall only be such as areprovided by law and are necessary

(a) (b) for the protection of public order (ordre public),

Mr Kentridge rightly concedes that public order includes the dueadministration of justice.

For these submissions he relies heavily upon the majority decision in R vKopyto (1988) 47 DLR (4th) 213 in the Ontario Court of Appeal. This decidedthat scandalising the court as charged was unconstitutional and contrary tothe Canadian Charter. The offence could survive as an exemption to the right

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of free expression only if there was a clear, serious and immediate dangerto the administration of justice. As the Canadian Charter, the Hong Kong Billof Rights and the Basic Law (incorporating the ICCPR) are in this respect inpari materia the correct test in Hong Kong law is that suggested in R v Kopyto.It follows, says Mr Kentridge, that in adopting the lower test of real risk theDivisional Court fell into serious error.

He supported his eloquent argument with persuasive, but not binding,authority. Many of his preliminary submissions on the fundamental rights areuncontroversial. The freedom of expression and of the press are given specificprotection in the Bill of Rights and the Basic Law. In our society their importancecannot be overestimated. This, in my view, must be the starting point. I cannotbetter the way it is put by Hoffmann LJ (as he then was) in R v CentralIndependent Television Plc [1994] Fam 192 at pp.202H203C:

The motives which impel judges to assume a power to balance freedomof speech against other interests are almost always understandable andhumane on the facts of the particular case before them. Newspapers aresometimes irresponsible and their motives in a market economy cannotbe expected to be unalloyed by considerations of commercial advantage.Publication may cause needless pain, distress and damage to individualsor harm to other aspects of the public interest. But a freedom which isrestricted to what judges think to be responsible or in the public interestis no freedom. Freedom means the right to publish things whichgovernment and judges, however well motivated, think should not bepublished. It means the right to say things which right-thinking peopleregard as dangerous or irresponsible. This freedom is subject only to clearlydefined exceptions laid down by common law or statute.

Furthermore, in order to enable us to meet our international obligationsunder the Convention for the Protection of Human Rights andFundamental Freedoms (1953) (Cmd 8969), it is necessary that anyexceptions should satisfy the tests laid down in art.10(2). They must benecessary in a democratic society and fall within certain permissiblecategories, namely:

He recognised that it was necessary for any exemptions under the internationalcovenants to fall within defined categories including the maintenance of theauthority and impartiality of the judiciary and added at pp.203DE:

It cannot be too strongly emphasised that outside the establishedexceptions, or any new ones which Parliament may enact in accordancewith its obligations under the Convention, there is no question of balancingfreedom of speech against other interests. It is a trump card which alwayswins.

The argument before us has concentrated upon whether having regard tothe Basic Law, the ICCPR and the Bill of Rights it was open to the Divisional

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Court to hold that the contempts came within necessary exemptions. MrKentridge urged the application of the ordinary meaning of necessary ratherthan other formulations under international covenants. I agree. See Ming PaoNewspapers Ltd v A-G (1996) 6 HKPLR 103, [1996] AC 906.

In determining what are necessary exemptions in Hong Kong a number ofpoints have been urged upon us. The first is that the test will differ accordingto the needs of the jurisdiction concerned. This was recognised by Lord Morrisin McLeod v St Aubyn [1899] AC 549 at p.561.

Then, it is rightly said that the courts and judges are not immune fromcriticism. They must rely upon merited good reputation for protection againstbona fide censure even if it is fierce and misguided. Such criticism is notcontempt. In Ambard v A-G for Trinidad and Tobago [1936] AC 322 at p.335Lord Atkin put it thus:

But whether the authority and position of an individual judge, or the dueadministration of justice, is concerned, no wrong is committed by anymember of the public who exercises the ordinary right of criticising, ingood faith, in private or public, the public act done in the seat of justice.The path of criticism is a public way: the wrong headed are permitted toerr therein: provided that members of the public abstain from imputingimproper motives to those taking part in the administration of justice, andare genuinely exercising a right of criticism, and not acting in malice orattempting to impair the administration of justice, they are immune. Justiceis not a cloistered virtue: she must be allowed to suffer the scrutiny andrespectful, even though outspoken, comments of ordinary men.

Salmon LJ (as he then was) expressed similar sentiments in R v Commissionerof Police of the Metropolis, ex p Blackburn (No 2) [1968] 2 QB 150 at p.155F:

It follows that no criticism of a judgment, however vigorous, can amountto contempt of court, providing it keeps within the limits of reasonablecourtesy and good faith. The criticism here complained of, howeverrumbustious, however wide of the mark, whether expressed in good tasteor in bad taste, seems to me to be well within those limits.

Or, as Cory JA put it in R v Kopyto (1988) 47 DLR (4th) 213 but the courtsare not fragile flowers that will wither in the heat of controversy.

In this context Mr Kentridge invites us to consider the effect of justified,strong, bona fide criticism of the court and judges. What could be more effective,he says, in interfering with the administration of justice as a continuing processand diminishing the authority of the court? Therefore, he argues, the fact thatthe conduct may diminish the authority of the court is not enough by itself.Sound and warranted criticism is necessary for the improvement of any publicinstitution including the courts.

Drawing together these reasons, Mr Kentridge urges the conclusionthat the approach of the majority in R v Kopyto (1988) 47 DLR (4th) 213

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is correct under Hong Kong law. At most, the only protection consistentwith the fundamental rights afforded by the law against scandalising thecourt, is if the conduct complained of is such as to involve a real, substantialand immediate danger to the administration of justice. This, Mr Kentridgeequates with clear and present danger the test applied in the UnitedStates courts which is only referable and relevant to cases pending oralready in process.

R v Kopyto (1988) 47 DLR (4th) 213 consideredMr Kentridges heavy reliance upon this case is founded upon the similarityof the Canadian Charter with the relevant provisions in Hong Kong, and theexhaustive consideration by that Court of authorities in other Commonwealthjurisdictions and in the United States. The five member Ontario Court ofAppeal was unanimous that the momentary but excessive reaction of adisappointed lawyer was not made out as a contempt. In its considerationof the necessary ingredients of contempt by way of scandalising the court itis impressive. Mr Kentridge submits that it is also highly persuasive and oughtto be followed.

It is necessary to examine the judgments in a little detail for the reasonthat on issues other than the result the Court was split three ways. Cory andGoodman JJA were of the view that in order to accord with the fundamentalfreedoms in the Charter the contempt must be shown to involve a real, substantialand immediate (Cory) or real, significant and present or immediate (Goodman)danger to the administration of justice.

Houlden JA stood alone in deciding that no offence of scandalising the court,however framed, could be consistent with the Charter and therefore there couldbe no such contempt.

Brooke and Dubin JJA on the other hand considered the offence to be anecessary exemption provided that the statement complained of is calculatedto bring the administration of justice in disrepute and it is shown that there is aserious risk that the administration of justice would be interfered with thatrisk could be expressed as serious, real or substantial.

The majority view that such a contempt could not be committed unless itinterferes with the fair trial of present or pending proceedings was influencedin varying degrees by American jurisprudence and its test of clear and presentdanger. Dubin JA (with whom Brooke JA agreed) was dismissive of thisapproach. He preferred the Commonwealth authorities for the reasons he givesat p.285:

The result of the majority ruling is that in this jurisdiction there is, at present,no limit on what is permissible with respect to comments made whichare intended to interfere seriously with the administration of justice andthe rule of law unless the comment is made in the face of the court, orwould interfere with the fair trial of pending proceedings. With respect,I see no basis for such a distinction.

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He then points out that the distinction had been rejected in Solicitor General vRadio Avon Ltd [1978] 1 NZLR 225 at pp.232233 where Lord Diplocksanalysis in A-G v Times Newspaper Ltd [1974] AC 273 is cited with approval.

In R v Kopyto (1988) 47 DLR (4th) 213 at p.287, Dubin JA refers to theerroneous assumption in American jurisprudence (Bridges v State of California62 S Ct 190 at p.217, 314 US 252) that scandalising contempt is to preservethe dignity of the bench:

But, with respect, the criminal offences of contempt of court, with whichwe are dealing, is not for the purpose of preserving the dignity of thebench as the many cases to which I have referred demonstrate, and,with respect, I think has been misinterpreted in the American jurisprudence.It is apparent in reading American jurisprudence that the constitutionaltradition and the philosophy underlying the manner in which justice isadministered in the United States is different in many ways from that inCanada and throughout the Commonwealth. I need not dwell on thosemany differences.

He adopts the summary of the different approaches in Solicitor General v RadioAvon Ltd [1978] 1 NZLR 225 at p.234:

The American courts appear to have directed their attention to the existenceof a clear and present danger of a court being influenced, intimidated, impeded,embarrassed or obstructed in the administration of justice. English law, on theother hand, has also attached great importance to the need to preserve publicconfidence in the administration of justice generally. This Court should notdepart from that attitude subject, of course, in the type of contempt nowunder consideration, to the public right of fair comment and criticism, andto the possible defence of justification earlier referred to in this judgment.(Emphasis added.)

I refuse to enter the lists on the question whether the American approach involvesa misapprehension of the nature of scandalising but the majority in R v Kopyto(1988) 47 DLR (4th) 213 were much influenced by it.

Is scandalising contempt as found by the Divisional Court anecessary exemption in Hong Kong?The Bill of Rights and the Basic Law distinguish the law in Hong Kong fromthat of the United Kingdom, Australia and so far as Solicitor General v RadioAvon Ltd [1978] 1 NZLR 225 is concerned, New Zealand, because that casewas decided before its Bill of Rights came into force. The question is whetherthe Commonwealth approach to scandalising contempt as applied by theDivisional Court survives the Bill of Rights and the Basic Law as a necessaryexemption to freedom of expression. As became clear in R v Kopyto (1988) 47DLR (4th) 213, what is a necessary exemption depends upon the nature of

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the contempt what must be proved to establish it and the local circumstancesin which the due administration of justice has to be maintained.

It seems that American law provides no protection for the administration ofjustice as a continuing process. Yet, the American system is well respectedand appears not to be under any obvious disability consequent upon the absenceof this protection. If this protection is unconstitutional in Canada, Mr Kentridgeasks how can it be necessary in Hong Kong?

The answer, I believe, lies partly in the Commonwealth tradition andpartly in what is necessary in the particular circumstances in Hong Kong. Itis abundantly clear from the authorities relied upon by the Divisional Court,that the Commonwealth tradition attaches great importance to the preservationof all the factors which contribute to the due administration of justice as acontinuing process as well as the integrity of proceedings in progress or incontemplation. Also, the real risk test can be regarded as well established bythose authorities.

I can discern no practical difference between the real risk test in SolicitorGeneral v Radio Avon Ltd [1978] 1 NZLR 225 at p.239 line 11 (the Commonwealthtradition) and that held to be constitutional by Dubin and Brooke JJA in R v Kopyto(1988) 47 DLR (4th) 213 in their impressive minority judgment at pp.289290:

It was essential for the Crown to prove that the statement made by theappellant was calculated to bring the administration of justice into disrepute.That is the actus reus of this offence. The mere fact the words are capableof bringing the administration of justice into disrepute does not suffice.What must be shown is that, by reason of the statement made by theappellant, there was a serious risk that the administration of justice wouldbe interfered with. The risk or prejudice must be serious, real or substantial.

I have already referred to the passage in which Dubin JA points out what heconsiders to be the flaw in the American approach. In summary, the DivisionalCourt held that in order to establish the contempts alleged, proof was necessarythat the statement (or conduct) was calculated to interfere with the administrationof justice in its widest sense; that it involved a real risk that the due administrationof justice would be interfered with and (the mental element) that there wasan intention to interfere with the administration of justice, or recklessness byappreciating this possible consequence and ignoring it. This requisite mentalelement will almost always be implicit in the statement or conduct itself.

I readily accept Mr Kentridges point that the administration of justice inHong Kong is held in high repute both at home and abroad. There is everyreason to think that it enjoys general confidence and respect. Therefore, it haslittle to fear from bona fide, temperate, and rational criticism. Indeed, theappellate process itself involves this and yet tends to increase confidence inthe system. Further, like many other public institutions, it stands to benefitfrom, rather than be damaged by, such criticism especially if constructive.Nor do I think that isolated excesses of disappointed litigants or their lawyers

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which are neither in the face of the court nor related to proceedings eitherpending or in progress, ought necessarily to be condemned as scandalisingcontempts. But, the spirit in which the attack is made is relevant.

Mr Kentridges point that a rational attack is more likely to result in riskthan a scurrilous and preposterous attack which may be recognised for what itis I do not accept as generally correct. Bona fide, balanced and justified criticismis susceptible to reasoned answer or even acceptance. Sustained scurrilous,abusive attacks made in bad faith, or conduct which challenges the authority ofthe court, are not susceptible to reasoned answer. If they continue uncheckedthey will almost certainly lead to interference with the administration of justiceas a continuing process.

Further, the relatively small size of the Hong Kongs legal system is important.As is demonstrated in this case communication with a very substantial proportionof the population is easily achieved. Proceedings in court are widely publicised.Many judges are known by name because of this reporting. Confidence inour legal system, the maintenance of the rule of law and the authority of thecourt are matters of special importance in our society. There are frequent, ifmisconceived, expressions of anxiety in this respect. There is reason to believethat the ordinary citizen in Hong Kong regards the court as his ultimate and surerefuge from injustice and oppression.

One need go no further than to consider the likely effect upon the confidenceof the ordinary citizen or an ordinary litigant in the administration of justice inits widest sense if an unsuccessful litigant, who is also a powerful subject,indulges in sustained attacks upon the court or judges which go unchecked.

Also, on the necessity point, Mr Kentridge was asked in his submissionswhether a judge trying a case ought to be in the position of knowing that thelosing party may indulge in a scurrilous attack upon him, or seek to punish himby harassment. His bold answer is that the fundamental right to freedom ofexpression means that a judge must endure such treatment and that it must beregarded as coming with the job. This I unhesitatingly reject not only for thereasons already given. There is a further aspect of the administration of justicenot touched upon in argument but nevertheless of importance. It is to be foundin Arlidge, Eady & Smith on Contempt (2nd ed.) at para.168. The authors putit in this way and I adopt their formulation:

While it is true that the law of contempt is not concerned with the dignityof individuals taking part in the judicial process, or even with upholdingrespect for the law in any purely deferential sense, the administration ofjustice needs to proceed in circumstances of calm and dignity in order to beeffective. (Emphasis added.)

The respondents answerMr Ronny Tong SC for the Secretary for Justice, has made cogent and detailedsubmissions upon the necessity point and supporting the judgment below. Inbrief, he submits that the scurrilous and abusive attacks made in this case cannot

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amount to a genuine exercise of the freedom of speech and that a modern,civilised society such as Hong Kong, relies upon the authority of and respectfor the rule of law. The moment this respect is challenged, or the standing ofthe court is demeaned, this supremacy of the law is in doubt. This, he submits,is calculated to seriously interfere with the due administration of justice and inthe circumstances of this case amounts to a necessary exemption from the rightof free speech and freedom of expression. He supports both the reasoning andthe conclusions of the Court below.

For my part, I am indebted for some of my reasoning in this judgment toMr Tongs submissions which I accept in substance.

Conclusion on scandalising contemptI reject Mr Kentridges main submissions without difficulty. For the abovereasons, I would hold that the contempt defined by the Divisional Court is anecessary exemption to the fundamental rights of freedom of expression andfreedom of the press under the Basic Law and the Bill of Rights. The DivisionalCourt considered the applicable law and authority with great care and rightlyconcluded that real risk of interference with the due administration of justicewas the correct test. I do not repeat the reasoning and the conclusions withwhich I entirely agree, and I would uphold the decision.

I would only add that in this case that I doubt whether a detailed considerationof the type of readership of the newspaper was necessary. To my mind, aconsideration of the nature of the articles with a readership of 2.3 million peopleinevitably involves a real risk. As to the necessary mental element, this isexpressly established by the articles themselves. See for example the articleof 8 January 1998 when the newspaper expressed the intention to destroy theauthority of the Judiciary.

The pursuit of Godfrey JAAs to the pursuit of Godfrey JA, Mr Kentridge first submits that the Courtwrongly found the appellant guilty of conduct which was calculated to underminepublic confidence in the due administration of justice whereas the contemptcharged was wrongfully interfering with the administration of justice. Withrespect, this is a bad point. As I have already indicated, there are many ways inwhich the administration of justice as a continuing process can be interferedwith. They certainly include undermining public confidence.

Essentially, however, Mr Kentridges point is that there is no risk that thejudge would be adversely influenced by this conduct either generally or inrespect of a particular case. He criticises the Divisional Courts reliance uponthose cases of contempt in which witnesses or jurors have been threatened orvictimised on the basis that such people may well have been influenced whereasa judge certainly would not.

He cites a number of cases in support in which eminent judges have indicatedthat judges are not influenced by statements or comments in the media. By

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way of example, he relies upon Lord Salmon in A-G v British BroadcastingCorp [1981] AC 303 at p.342:

I am and have always been satisfied that no judge would be influenced inhis judgment by what may be said by the media.

Although the harassing conduct directed at Godfrey JA was much more seriousthan the statements in the media, for my part I accept, as did the DivisionalCourt, that no judge in Hong Kong would be influenced in his judgment by itor anything like it.

On this Mr Kentridge suggests that the Divisional Court was therefore wrongin holding that there was a real risk that public confidence would be underminedbecause

it was inevitable that at least some sectors of the newspapers readershipwould think that there was a possibility that Godfrey JA might be affectedby the treatment of him, and that that might have affected his future handlingof cases involving the Oriental Daily News in particular, and the press ingeneral. If such conduct as in the present case is tolerated, it would alsogive rise to a misconception that it is permissible to resort to similar tacticsafter a person has lost his cause in court.

But the Divisional Court was not considering the narrow question whether thisparticular Judge would have been influenced in his judgment but the muchwider and equally important question whether this conduct would lead to theundermining of public confidence.

Conclusion on the pursuit of Godfrey JAMuch of the reasoning under scandalising contempt is relevant to this contempt.It is not necessary to repeat it.

For my part, therefore, I am satisfied that the Divisional Court applied thecorrect principles of law and that it was correct in finding that the necessaryacts had been done with the requisite intention. I would dismiss the appeal onthis contempt.

Finally, in spite of all the arguments raised, these contempts were plain,obvious and extremely serious.

The appeal on sentenceThese examples of this type of contempt by the media are unprecedented.The attacks were made by those who normally are vociferous in seeking touphold the rule of law and fundamental freedoms, not in seeking to damagethem. They represent gross abuses of freedom of expression and freedom ofthe press.

They were rightly described by the Divisional Court as follows:

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The campaign which the Oriental Daily News waged against the Judiciarywas without parallel in modern times. The features of this prolonged andsustained campaign which made it so unique include the venom of thelanguage which was used, the outrageousness of the motives which itascribed to its targets, and the impact which the campaign had onpublic confidence in the ability of Hong Kongs judges to dispense justiceconscientiously and impartially.

what was at stake in the Oriental Daily News campaign was not theoutcome of an individual case but nothing less than the rule of law itself It was this ultimate challenge to the rule of law which makes thesecontempts probably the most serious examples of media contemptswhich the courts in the common law world have ever encountered.

The contempt of court consisting of the pursuit of Godfrey JA wasequally unprecedented. We know of no case in which a judge has beenharassed in the way in which Godfrey JA was. What made the pursuit ofhim particularly serious was that it was done, not as was suggested toeducate him in the ways of paparazzi, but to pay him back for not goingalong with all of the Oriental Press Groups arguments in the case whichhe had heard.

Having outlined the seriousness of these matters, the Divisional Court reviewedand took into account the mitigating features advanced on the appellantsbehalf, which included his acceptance of prime responsibility together with hisunreserved public apology, his genuine remorse, his high reputation andunimpeachable character. Additionally, the Court generously took into accountcertain matters in his favour which were not advanced on his behalf in that ithad reservation over the extent of Mr Wongs responsibility for the contempts.It had a suspicion that the impetus for the campaign may not have come fromhim and that in this respect he did not enjoy full editorial independence.

Taking all these matters into account, including the unprecedented gravityof the contempt the Court treated the publication of the various articles asone contempt and the harassment as another. It took a total of 8 monthsimprisonment as the starting point. Having regard to the substantial mitigation,this was reduced to 4 months imprisonment which was achieved by passing3 months imprisonment for each contempt, 1 month of which was to be servedconsecutively, making 4 months in all.

In this sentence, the Court also took into account its order that Mr Wongshould pay four-fifths of the costs incurred by the Secretary for Justice for theprosecution, but it is to be noted that an order was also made against the OrientalPress Group Ltd which had to be enforced first. The order against Mr Wongcannot be enforced without a further order from the Divisional Court.

Mr Kentridge submits that 8 months imprisonment was manifestly too highas a starting point, and that in the circumstances of the case a suspended sentenceand a fine was the appropriate order. He recognised that the Divisional Courthad been generous in finding mitigating factors but submitted that they weregiven insufficient weight. He emphasised Mr Wongs unreserved apology, his

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genuine and repeated remorse and his acceptance of full responsibility althoughhe was not the writer. Emphasis was placed upon the fact that these proceedingswill ensure that such contempts are never repeated in the future and that a fineis an effective deterrent together with costs on an indemnity basis.

It was further pointed out that these offences were not motivated by financialgain but by a genuine resentment over unfair decisions. Finally, it was submittedthat Mr Wong had not only made a public apology but had suffered publichumiliation as a major item of news and he had suffered the indignity of threedays in custody which had been serious punishment to him.

It was suggested that the standing of the Court would be enhanced byshowing mercy. Cases were cited supporting the proposition that in cases inother jurisdictions more lenient sentences had been passed.

Conclusion on sentenceWith respect to the submissions made, it is impossible for this Court to say that8 months imprisonment as a starting point was manifestly excessive for offencesof this persistence and seriousness. I would conclude that 8 months was in allrespects moderate. Thereafter, the Divisional Court gave generous weight tothe substantial mitigating factors. Nothing that Mr Kentridge has advancedpersuades me that these unprecedented contempts did not merit immediatecustodial sentences. Not without regret for Mr Wongs personal position, Iwould hold these sentences to be temperate, proper and in all the circumstancesnecessary. For these reasons, I would dismiss this appeal against sentence.

Mayo JA:It is useful to bear in mind the two charges which were laid against the appellant.They were that the appellant was guilty of contempt of court in that:

(1) They sought to threaten, harass and/or intimidate Godfrey JAduring 13, 14 and 15 January 1998 (by having him pursued by theiremployees and/or agents and/or others) by reason of a judgmentwhich he had previously delivered, thereby wrongfully interferingwith the administration of justice.

(2) They published articles which contained passages of crude and viciousabuse of the Judiciary as set out in paras.9(2)(8), with little if anyreasoned argument, and which alleged systematic bias and wilfulabuse of power (those allegations being without any justificationwhatsoever). The articles also contained threats to the Judiciary. Thearticles, considered separately and cumulatively, were calculated toundermine public confidence in the administration of justice in HongKong.

This appeal was greatly simplified by the fact that Mr Kentridge QC for theappellant accepted at the outset that the newspaper articles were abusive,intemperate and shocking and that the campaign against the Judiciary had been

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conducted over a period of some time. Also, it was accepted that the articleshad not been written in good faith. They had been actuated by resentmentat what the paper perceived to be its persecution by the Judiciary. Likewise,it was accepted that the treatment of Godfrey JA referred to in charge 1 hadnot been to educate him in the ways of the so called paparazzi. It had beenan attempt to reek revenge upon him for not accepting the submissions whichhad been made to him on their behalf. A further important factor which wasaccepted was that the circulation of the Oriental Daily News was and is veryextensive. It enjoys a daily readership in excess of 2 million people. It is possibleto state that none of the Court belows findings of fact were in any way subjectto challenge.

The approach adopted by Mr Kentridge to this was that the articles complainedof were of such an excessive nature that the allegations were preposterous andthat it was unlikely that they would constitute a real danger to the administrationof justice.

The main issue which was ventilated on this appeal was the law whichis applicable to contempts of court of this nature. It related to art.16 of theHong Kong Bill of Rights Ordinance (Cap.383) (the Ordinance) and the extent(if any) to which art.16 had modified the existing common law on the subjectof scandalising the court.

Article 16 reads as follows:

Article 16Freedom of opinion and expression

(1) Everyone shall have the right to hold opinions without interference.(2) Everyone shall have the right to freedom of expression; this right

shall include freedom to seek, receive and impart information andideas of all kinds, regardless of frontiers, either orally, in writing or inprint, in the form of art, or through any other media of his choice.

(3) The exercise of the rights provided for in para.(2) of this articlecarries with it special duties and responsibilities. It may therefore besubject to certain restrictions, but these shall only be such as areprovided by law and are necessary:

(a) for respect of the rights or reputations of others; or(b) for the protection of national security or of public order (ordre

public), or of public health or morals.

[cf ICCPR art.19]

Mr Tong SC for the respondent argued that the exceptions referred to inart.16(3)(b) were such that the existing common law had not been modifiedas a consequence of the enactment of the Bill of Rights. This being so all thevarious cases based upon R v Gray [1900] 2 QB 36 were still applicable to thissituation.

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According to Mr Tong a contempt of court is committed where thepublication was calculated to impair the confidence of the people in the judiciaryor the administration of justice or there is a risk that the publication tended tolower the authority of the court as a whole or that of its judges and excitesmisgivings as to the integrity, propriety and impartiality of the judicial office.In all these matters the test was not what the writer intended but the likelyresult of the publication. I have taken this from the very helpful skeletonargument prepared by Mr Tong and he cites these cases in support of thepropositions he advances.

1. R v Odhams Press, ex p A-G [1957] 1 QB 732. A-G v Mundey [1972] 2 NSWLR 8873. Solicitor General v Radio Avon Ltd [1978] 1 NZLR 2254. Chokolingo v Law Society of Trinidad and Tobago (1978) 30 WIR 3725. Badry v DPP of Mauritius [1983] 2 AC 2976. Solicitor General v Radio New Zealand Ltd [1994] 1 NZLR 487. A-G v Lingle [1995] 1 SLR 696

Mr Kentridge accepted that the crime of contempt of court still existed whichincluded scandalising the court. It was his contention however that for theoffence to have been committed it had to be established that there was asubstantial risk to the administration of justice.

Mr Kentridge also accepted that freedom of speech under the Basic Lawand the Bill of Rights was not absolute. A balancing exercise had to beundertaken to determine whether there were legitimate constraints. Anydeviation had to be based upon necessity rather than convenience or desirability.What was meant by necessity was that the court had to be satisfied that thepublication constituted an imminent and substantial danger to the administrationof justice.

All of this was separate to the question of interference with the administrationof justice. He readily accepted the necessity to restrict publications relating toimpending jury trials and prevent threats to witnesses to proceedings or partiesthereto or jurors or any attempts to influence judges.

In relating these propositions to the facts of the instant case Mr Kentridgecontended that the question which had to be asked was Did the articlespose such a danger that they constituted a necessary constraint on freedom ofspeech? He accepted that you had to look at the meaning and context of thearticles to determine whether they constituted a clear and imminent dangerto the administration of justice. In doing so one had to bear in mind the effectthe articles would have on a reasonable person of average intelligence anddisposition and then ask oneself the question whether it was necessary tocriminalise conduct of this nature.

In formulating his propositions on the law Mr Kentridge placed heavyreliance upon the Canadian case of R v Kopyto (1988) 47 DLR (4th) 213. Thiscase involved a consideration of the Canadian Charter of Rights and Freedomsand it is clear that some of the Judges were influenced by the jurisprudence of

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the United States of America. It has to be said however that the Canadian Charteris in many respects similar to our Bill of Rights.

It will be appreciated from all of this that the main difference in the approachadopted by respective counsel is whether guidance is to be sought from theCanadian model or from other sources.

Mr Tong submitted that the New Zealand Bill of Rights had more in commonwith the Hong Kong Bill of Rights than the Canadian Charter. Perhaps the mostimportant consideration was that both pieces of legislation have been modelledupon the International Covenant on Civil and Political Rights (the ICCPR).Other considerations also have to be borne in mind. Our art.16(2) is identical toart.19 of the ICCPR and is very similar to art.10 of the European Conventionon Human Rights. Having given the matter careful consideration, I have cometo the conclusion that the New Zealand Bill of Rights and the cases based uponthat legislation provide better guidance than the Canadian Charter.

Having said this, I do not accept the validity of the contention advancedby Mr Tong that art.16 does not supplant or modify the law of contempt. Inmy view, the focus of attention has to be art.16 and a balancing exercise isrequired to determine whether it is necessary to curtail the freedoms providedby art.16(2). In this connection it is apparent from the decision of the EuropeanCourt of Human Rights in The Sunday Times v United Kingdom [1979] 2 EHRR245 that it was accepted the papers freedom of expression could in certaincircumstances be interfered with. This was in the context of contempt of court.This was perhaps hardly surprising as art.10 of the Hong Kong Bill of RightsOrdinance guarantees a fair and public hearing by a competent independentand impartial tribunal and it may well be the case that the rights conferred byart.16 may be incompatible with those conferred by art.10.

What is however clear is that any restriction must be in accordance with theprovisions of art.16(3) and must be necessary to achieve the legitimate objectsto be pursued.

These questions were considered by Rogers J (as he then was) in A-G vCheung Kim Hung & Another (1997) 7 HKPLR 295. He said at p.303:

As Mr Kwok has submitted, if the law of contempt is to prohibit thepublication of an article such as is in issue in the present case, the restrictionon the publication must satisfy each of the following tests:

(a) it must be provided by law(b) the law of contempt must intend to achieve one of the permissible

objectives set out in art.16(3) and(c) it must be necessary for the achievement of the relevant objective

or objectives and be proportionate to the legitimate aim pursued.

In my view the law of contempt in so far as it is sought to be applied inthese proceedings does fulfil all these three tests.

So far as the requirement that it is provided by law is concerned, itseems to me that the law of contempt is provided by law. The law satisfies

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the criteria because the law can be reasonably ascertained and theconsequences of any given action can be foreseen to a reasonable degree.In this respect I have regard to what was said by the majority [of theEuropean Court of Human Rights] in interpreting art.10 [of the EuropeanConvention on Human Rights] in the case of The Sunday Times v UnitedKingdom (1979) 2 EHRR 245 at p.271 para.49 where they said:

In the Courts opinion, the following are two of the requirementsthat flow from the expression prescribed by law. First, the lawmust be adequately accessible: the citizen must be able to have anindication that is adequate in the circumstances of the legal rulesapplicable to a given case. Secondly, a norm cannot be regarded asa law unless it is formulated with sufficient precision to enablethe citizen to regulate his conduct; he must be able if need bewith appropriate advice to foresee, to a degree that is reasonablein the circumstances, the consequences which a given action mayentail. Those consequences need not be foreseeable with absolutecertainty; experience shows this to be unattainable. Again, whilstcertainty is highly desirable, it may bring in its train excessive rigidityand the law must be able to keep pace with changing circumstances.Accordingly, many laws are inevitably couched in terms which, to agreater or lesser extent, are vague and whose interpretation andapplication are questions of practice.

One of the exceptions in art.16(3) is for the respects [sic] of rights ofothers.

Article 10 of the Bill of Rights articulates in my view one of thoserights. It provides as follows:

All persons shall be equal before the courts and tribunals. In thedetermination of any criminal charge against him, or of his rightsand obligations in a suit at law, everyone shall be entitled to a fairand public hearing by a competent, independent and impartialtribunal established by law. The press and the public may be excludedfrom all or part of a trial for reasons of morals, public order (ordrepublic) or national security in a democratic society, or when theinterest of the private lives of the parties so requires, or to theextent strictly necessary in the opinion of the court in specialcircumstances where publicity would prejudice the interests ofjustice; but any judgment rendered in a criminal case or in a suitat law shall be made public except where the interest of juvenilepersons otherwise requires or the proceedings concern matrimonialdisputes or the guardianship of children.

Finally, the Privy Council in the case of Ming Pao Newspapers Ltd v A-G(1996) 6 HKPLR 103 approved the Court of Appeals approach in giving

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the word necessary its normal meaning. As regards the question ofproportionality; of course the fundamental right of freedom of speechmust be given as generous an application as possible and any restrictionmust be narrowly interpreted and be proportionate to the aims soughtto be achieved, but in my view that test is also satisfied.

With respect I would agree with this statement of the law.Turning to the publications referred to in the second charge it is helpful to

consider the New Zealand case of Solicitor General v Radio New Zealand Ltd[1994] 1 NZLR 48 which is a post-Bill of Rights case. When considering whatthey referred to as Proof of corrosive tendency the Court had this to say:

Proof of corrosive tendency

In argument there was some discussion regarding the meaning of tendencyin this context, and how it was to be proved. We take the meaning adoptedin Solicitor General v Radio Avon Ltd [1978] 1 NZLR 225 at p.234 which ofcourse is binding on us, a real risk as distinct from a remote possibility thatthe broadcast items would undermine public confidence in the administrationof justice. A similar approach has been followed in Australia where theexpressions used include a real risk of interference with the administrationof justice, a substantial risk of serious injustice or a real and definite possibilitythat the conduct may prejudice the administration of justice; see Hinch vA-G at pp.2334 and 47. Direct proof will rarely be possible. The Courtmust consider all the circumstances of the publication: A-G v New Statesmanand Nation Publishing Co Ltd at p.10, following A-G v Leveller Magazine Ltd,per Lord Edmund-Davies at p.465. Relevant factors include the statementspublished, the timing of their publication, the size of the audience they reached,the likely nature, impact and duration of their influence; see Hinch v A-G[1987] VR 721 at pp.740 and 742.

As can be seen they did in that passage also consider the case of SolicitorGeneral v Radio Avon Ltd [1978] 1 NZLR 225 which involved a question ofscandalising the court. In that case Richmond P said at p.233 of the report.

Contempt by scandalising the court is, of course, conduct which, inLord Diplocks words, is calculated to undermine the public confidence inthe proper functioning of the courts. It is to be noted that Lord Diplock,like Lord Russell, makes no distinction between one form of contemptand another from the point of view of the intent of the defendant. In thelight of the approval given in Ambard v A-G to Lord Russells definition wedoubt whether it would in any event be open to this Court to introducea special requirement of mens rea into this one branch of the law ofcontempt. We would not in any event be prepared to do so as we thinkthat the public interest in the administration of justice is so importantthat it justifies the attitude which has been taken by the English courts.

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We shall now refer to another passage in Lord Diplocks speech inA-G v Times Newspapers Ltd. After describing some of the features of thesummary remedy for contempt of court, Lord Diplock said:

The courts have therefore been vigilant to see that the procedurefor committal is not lightly invoked in cases where, although acontempt has been committed, there in no serious likelihood thatit has caused any harm to the interests of any of the parties to thelitigation or to the public interest. Since the courts discretion indealing with a motion for committal is wide enough to entitle itto dismiss the motion with costs, despite the fact that a contempthas been committed, if it thinks that the contempt was too venialto justify its being brought to the attention of the court at all, thedistinction between conduct which is within the general conceptof contempt of court and conduct included within that generalconcept, which a court regards as deserving of punishment in theparticular circumstances of the case, is often blurred in the judgmentsin the reported cases. The expression technical contempt is aconvenient expression which has sometimes been used to describeconduct which falls into the former but outside th

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