Tuesday, April 28, 2015

Simon Young on Scandalising the Judiciary in Hong Kong

CFA Building (Elisa Rolle)
In Hong Kong making ill-advised statements against courts or judges may land you in jail for scandalising the judiciary. It is contempt of court if a person, by words or conduct, intentionally or recklessly creates a real risk of undermining public confidence in the administration of justice (Wong Yeung Ng v The Secretary for Justice [1999] 2 HKLRD 293, [51] (CA), leave to CFA refused in [1999] 3 HKC 143).  Criticism is fine, especially in a place that treasures freedom of expression, but it should offer “reasonable argument or expostulation” (R v Gray [1900] 2 QB 36, 40) and be “within the limits of reasonable courtesy and good faith” (R v Commissioner of Police of the Metropolis, ex p Blackburn (No 2) [1968] 2 QB 150, 155), however outspoken or vigorously expressed (The Secretary for Justice v The Oriental Press Group Ltd [1998] 2 HKLRD 123, [77]). What is prohibited is “scurrilous abuse” (“a personal attack on a judge in abusive language which vilifies the judge rather than simply points out his errors”) (Oriental Press Group, ibid, [49]) or imputing improper motives or bias without any justification (Ambard v Attorney General for Trinidad and Tobago [1935] AC 322, 335). It is not the same as defamation or libel, which aim to protect the reputation of an individual; the concern is with people’s confidence in the administration of justice, an essential condition of the rule of law (The State v Mamabolo (2001) 3 SA 409, [24] (CC); Dhooharika v The DPP (Mauritius) [2014] UKPC 11, [42]). 
     Hong Kong has had at least three cases of scandalising the judiciary. The first is the infamous case of a local newspaper that carried on a “campaign against the Judiciary” as revenge for decisions made against it in several cases (Oriental Press Group, supra, [1]). The campaign consisted of a series of articles that alleged in abusive language a conspiracy between the courts and government to persecute the newspaper and culminated in a three-day round-the-clock paparazzi-style stalking of a Court of Appeal judge. These were low days for the rule of law as many of the newspaper’s readers sent in letters of support for the campaign (Oriental Press Group, ibid, [14], [20-21]). Ironically the newspaper was undermining the very institution that in the end delivered justice in its favour in two Court of Final Appeal decisions (Oriental Press Group Ltd v Apple Daily Ltd (1997-1998) 1 HKCFAR 208; Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority (1997-1998) 1 HKCFAR 279). 
     The other two cases concerned a defendant, who was known to the court as a vexatious litigant. He tried to stop a judge from presiding in his case by “indulging in an abusive attack on the integrity” of the judge, who patiently sat through the “verbal assault” (Secretary for Justice v Choy Bing Wing, unreported, HCMP4694/2003, 25 Oct 2005, CFI). The same defendant also wrote a series of letters using profanity and other abuse to attack the integrity of the court registrar (Secretary for Justice v Choy Bing Wing [2011] 2 HKC 342 (CFI)). 
     It is worth asking whether we should retain this common law offence. England and Wales abolished it in June 2013 (Crime and Courts Act 2013, s. 33; Law Commission Report No 335 (Dec 2012)). Lord Lester QC and Lord Pannick QC were strong proponents of abolition. The latter argued that confidence is what it is and prosecuting people for scandalising will not improve public confidence if it is already low ([2014] Public Law 4, 8-9). He wrote that “respect for the judiciary…is undermined rather than strengthened by the existence and use of a criminal offence which provides special protection against free speech relating to the judiciary” (ibid, 10). In Hong Kong the repute of the judiciary is solid and insults directed at it bounce back immediately upon the character of those who lobbed the abuse. But where the abuse becomes disruptive the offence helps to restore the “circumstances of calm and dignity” needed for courts to get on with their work (Arlidge, Eady & Smith on Contempt, 2nd ed (Sweet & Maxwell 1999) 16-18; Pannick, supra, 9).  Written by Simon NM Young.  An edited version of this article was published in the South China Morning Post on 28 April 2015.

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