Wong Yeung Ng v Secretary for Justice

Issue

Contempt of the court – when is this ‘necessary’ exception in constitutionally guaranteed right to freedom of expression?

(do we use ‘real risk’ test or the more stringent ‘real, substantial and imminent danger’ test?)

Facts

D is editor of biggest Chinese daily in HK, Oriental Daily News which claims 2.3 mln readers.

Two preceding involving the newspaper, the Faye Wong case involving the copyright of unauthorized pictures of celebrities, and the case where Obscene Act Tribunal censored nude pictures published on the newspaper

With respect of these two cases, Oriental published many articles that heavily attacked the Judiciary using abusive, scurrilous and at times racist language for a prolonged time period (conviction said 11 Dec 97 – 12 Jan 98 but attack began in September).

Oriental also sent staff to stalk Godfrey JA in the paparazzi fashion for 72 hours.

D and Oriental Press Group, the de facto publisher and owner of the newspaper, were convicted at Divisional Court for contempt of court in two contempts:

(a) the harrasment of Godfrey JA by reason of a judgment he had previously delivered thereby wronffully interfering with the administration of justice as a continuing process;

(b) the pubishing of articles that scandalise the court and thereby undermining public confidence in the administration of justice.

D was sentenced to 4 months and appealed.

Oriental Press Group was sentenced to a fine and did not appeal.

Decision

D’s appeal was dismissed.

Reason

Re scandalising conviction –

1. obviously the articles had the calculation and intention to destroy the authority of the Judiciary

2. which test?

D’s representative – admits that the articles were scandalising and malicious, and freedom of expression should be restricted, but to test whether the

contempt of court is a ‘necessary’ exception to freedom of expression in A16(2) BORO, what test should we use?

D submitted that we should use the Canadian approach of a more stringent test: only if there is a ‘real, substantial and immediate danger’ to the administration of justice, can the conduct of scandalising the court be the exception to freedom of expression.

Court rejected this submission and said Hong Kong should use the ‘real risk’ test: that scandalising court is not protected by BORO&HKBL if the scandalising articles contained a ‘real risk’ of interference with the administration of justice. Why this test?

1) commonwealth tradition strong in upholding due administration of justice as a continuing process; also commonwealth authorities has well established ‘real risk’ test

2) hong kong is a small legal system and communication spread easily; maintaining rule of law and court authority has special importance

3. confidence of citizen upon court would be easily shaken if unsuccessful litigant, which is also a powerful and influential subject, indulges in unchecked and irrational attacks upon court.

4. consideration needs to be given to the wide reach of this publication – 2.3mln people, and the long duration of this attack.

Re pursuit of Godfrey JA –

Real risk here too. Contempts were ‘plain, obvious and serious’ (315H).

Doesn’t matter if this particular judge is actually influenced by harassment or not. Main problem is the harassment has received public attention and has effect of undermining public confidence for judges.

Re sentencing –

D submitted that the starting point of 8 months (reduced to 4 months due to mitigating factors such as D’s genuine remorse, public apology and apparent lack of editorial independence) is too harsh

Court rejected the appeal and says in light of the seriousness and length of the attack, the sentencing is moderate.

Useful comments

Cannot say that judge should just regard being harassed by losing litigant to be something that ‘comes with the job’. ‘the administration of justice needs to proceed in circumstances of calm and dignity in order to be effective’ (313F-I).