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HCMP 1851/2013
B
C
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IN THE MATTER OF an
application by the Secretary for
Justice for leave to apply for an
Order of Committal pursuant to
Order 52, rule 2 of the Rules of the
High Court, Cap 4A
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BETWEEN
SECRETARY OF JUSTICE
Plaintiff
and
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AND
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LI PANG KAY
(in his capacity as the editor of Sharp Daily)
1st Defendant
2nd Defendant
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N
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and
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HCMP 1852/2013
B
C
_______________
IN THE MATTER OF an
application by the Secretary for
Justice for leave to apply for an
Order of Committal pursuant to
Order 52, rule 2 of the Rules of the
High Court, Cap 4A
F
G
H
_______________
BETWEEN
SECRETARY OF JUSTICE
Plaintiff
and
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and
1st Defendant
2nd Defendant
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(Heard Together)
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DECISION
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A.
INTRODUCTION
and Sharp Daily Ltd (under HCMP 1851/2013) and Mr Cheung and
Apple Daily Ltd (under HCMP 1852/2013). The contempt committed is
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respectively of Apple Daily and Sharp Daily. Apple Daily Ltd and Sharp
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video clip were published when the anticipated criminal trial of Mr Chau
Daily Ltd are respectively the proprietors and publishers of Apple Daily
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homicide; and (b) a video clip on the related newspaper websites of the
custody at the Siu Lam Psychiatric Centre (SLPC). The article and the
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mitigation.
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accepted liability for contempt, the only issue left for determination at
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liability for contempt and made an apology to the court about the
contempt. They also set out various matters apparently for the purpose of
The substantive hearing was by consent adjourned until after final determination of
the criminal proceedings against Mr Chau.
Under Summonses taken out on 1 June 2015.
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12.4 The arrest and charging of Mr. Chau and Mr. Tse in
the double homicide case attracted overwhelming
media attention and was widely reported by
different newspaper publications in Hong Kong.
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(2)
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9.1
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9.4. The arrest and charging of Mr. Chau and Mr. Tse in
the double homicide case attracted overwhelming
media attention and was widely reported by
different newspaper publications in Hong Kong.
(emphasis added)
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(1)
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These questions are set out in the Department of Justices letter to the defendants
solicitors dated 7 November 2013, requesting them to provide the answers.
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(3)
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(4)
(5)
Affirmation)?
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(6)
(7)
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(9)
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(1)
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(8)
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(2)
(3)
(4)
B2.
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that the court does have the case management discretion to grant leave to
cross-examine defendants or witnesses in a contempt proceeding on the
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that discretion have been set out in Comet Products UK Ltd v Hawkex
skeleton) as follows:
(1)
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(2)
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which they may wish to rely and to file and serve the same
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WLR 627. They can be summarised (as helpfully set out in the plaintiffs
evidence they seek to rely on. The governing principles in the exercise of
Plastics Ltd [1971] 2 QB 67 and Re B (Contempt: Evidence) [1996] 1
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A
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(3)
(4)
(5)
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the applications are oppressive in light of the trite principle that the
prosecution should not influence the court in regard of sentence by
advocacy and/or that they are no more than a fishing exercise which
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Chan) for the plaintiff that, as a starting point, the court must be satisfied
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is the only material issue at the forthcoming hearing. And for that issue,
culpability of the contemptuous acts committed by the defendants.
Notwithstanding the way in which the above questions were
drafted, Mr Jat confirms at the hearing that the plaintiff is not seeking to
elicit any information in relation to journalistic sources or the inner
workings of the newspapers. Moreover, the plaintiff is also not seeking
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framed, leading counsel says these questions in fact are intended to elicit
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(2)
(3)
(4)
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Whether the editors had in fact seen and approved the article
before its publication, which is a factor that goes to the
question of whether they are more culpable in allowing such
Mr Jat) that would show that the editors and newspapers are
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arises from the defendants own evidence (which they wish to rely on in
mitigation) as set out in those relevant paragraphs of the affirmations.
The scope of the intended cross-examination therefore falls within the
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B3.
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considered in the the present context that it is not suggested that what was
contained in the WhatsApp messages is inaccurate and also what was
inaccurate.
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the source of this information, given that there is no complaint that the
information was in fact false or inaccurate and which had then led to any
further conducts rendering the subject contemptuous acts (ie, the
follows.
even if the defendants had not done anything to check the reliability of
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Courts view
principles laid down in Re B, where the court in the exercise of its case
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intentionally caused the way in which the materials for the article were
obtained by the reporters, created or contributed to the content of the
article in its final form, approved the publication of it in that final form,
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the editors are passively held to be responsible for the article as written
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those circumstances (if the evidence so supports) than the situation where
and published in its final form solely because they are the ultimate
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had not specifically instructed or caused the reporters to do what they did
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in securing the interview; (c) they were not involved in the writing up of
the articles; (d) they had not read them before publication; and/or (e) it
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any event responsible for the conducts of the reporters, the final content
Coupled with the
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See Code of Conduct of the Bar of the Hong Kong Special Administrative Region,
paragraph 163; AG v Jim Chong-shing [1990] 1 HKLR 131 (CA) at 152C-F.
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CONCLUSION
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summonses.
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practicable to these potential matters which the plaintiff thinks may well
be relevant to the questions of sentence. These applications are taken out
to avoid any arguments or contentions at the substantive hearing that
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these matters should have been raised earlier. These applications are
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In particular, although I
refuse the application, I do not think it was unreasonable for the plaintiff
to regard it as at least arguable that the suggested evidence he sought to
bring out through cross-examination might well be relevant to the
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question of sentence and thus feel necessary to bring the matter to the
attention of this court as early as practicable to enable the parties to
properly prepare for the substantive hearing and to avoid any unnecessary
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also obviate the possibility that, at the substantive hearing, the court of its
the plaintiff to bring these matters to the courts attention by way of these
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14 days from today unless any of the parties applies to vary it.
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matter.
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(Thomas Au)
Judge of the Court of First Instance
High Court
Mr Jat Sew Tong SC and Mr Anthony Chan, instructed by Department of
Justice, for the plaintiff in both cases
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