Ming Pao Newspapers Limited and Others v. The Attorney General of Hong Kong (Hong Kong)

1. The appellants, who are respectively a

newspaper company and its Editor-in-Chief, Executive Chief Editor and Deputy

Chief Editor, were charged with committing an offence under section 30 of the

Prevention of Bribery Ordinance ("POBO") by disclosing details of an

investigation into a suspected offence under that Ordinance. At the conclusion of the Crown case the

magistrate upheld a defence submission that there was no case to answer on the

ground that section 30 being inconsistent with the Bill of Rights contained in

the Bill of Rights Ordinance ("BORO") had been repealed thereby. The Crown appealed by way of stated case and

the Court of Appeal held that the magistrate had erred in law in concluding

that section 30 had been repealed and remitted the case to the magistrate for

trial. The appellants now appeal to Her

Majesty in Council.

The

POBO came into effect in May 1971 and section 30(1) thereof provides:-

"(1) Any person who, without lawful

authority or reasonable excuse, discloses to any person who is the subject of

an investigation in respect of an offence alleged or suspected to have been

committed by him under this Ordinance the fact that he is subject to such an

investigation or any details of such investigation, or discloses to any other

person either the identity of any person who is the subject of such an

investigation or any details of such an investigation, shall be guilty of an

offence and shall be liable on conviction to a fine of $20,000 and to

imprisonment for 1 year."

2. Section 33 provides a mandatory penalty for an

offence under the Ordinance of being disqualified for a period of 10 years from

"being or being elected or appointed as a member of the Executive Council,

the Legislative Council, the Urban Council and any other public body, other

than a public body specified in the Schedule", which contains a list of

some 71 public bodies.

3. In the BORO which took effect in June 1991

there are three sections relevant to this appeal namely sections 2, 3 and 8,

which latter section contains the 23 Articles of the Bill. Section 2(3) provides:-

"In interpreting and applying this

Ordinance, regard shall be had to the fact that the purpose of this Ordinance

is to provide for the incorporation into the law of Hong Kong of provisions of

the International Covenant on Civil and Political Rights as applied to Hong

Kong, and for ancillary and connected matters.

4. Section 3 provides:-

"3.

Effect on pre-existing legislation

(1)

All pre-existing legislation that admits of a construction consistent with this

Ordinance shall be given such a construction.

(2)

All pre-existing legislation that does not admit of a construction consistent

with this Ordinance is, to the extent of the inconsistency, repealed."

5. Article 16 of the Bill which gives direct

effect to Article 19 of the International Covenant is in the following terms:-

"(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 and ideas of all kinds, regardless of frontiers, either orally, in

writing or in print, 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 article carries with it special duties and

responsibilities. It may therefore be

subject to certain restrictions, but these shall only be such as are provided

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."

6. After the passing of the BORO the Legislative

Council in 1992 amended section 30 of the POBO to restrict its application in

the following manner:-

"(1A) Where a person who is the subject of

an investigation in respect of an offence alleged or suspected to have been

committed by him under this Ordinance has been arrested in connection with such

offence, subsection (1) shall not apply as regards the disclosure after such

arrest of details of the investigation or the identity of the person."

7. The circumstances giving rise to the

prosecution were stated succinctly by the Court of Appeal and their Lordships

cannot do better than repeat them:-

"On 26 May 1994 the Government held a land

auction attended by the media. The next

day a number of newspapers alleged that there had been a cartel organised at

that auction to depress the land price.

On 2 August 1994 ICAC investigators sought interviews with the reporters

of the Ming Pao Daily News who had attended the land auction on 26 May. The following day the Ming Pao published

articles as follows:

`ICAC took steps to meet reporters in its

investigation in relation to the developers' joint bidding (for) land' and

`The ICAC is investigating whether anyone had

infringed any Ordinance in a land auction held on 26 May this year in which

over 10 developers combined to bid for land'.

8. The article went on to explain that in order to

collect information ICAC investigators had approached media organisations with

a view to meeting reporters and others who had attended the bidding

process. And the article added: `the

target of this ICAC investigation has not yet been ascertained.'"

9. The ICAC is the Independent Commission Against

Corruption which is charged with the duty of investigating offences under the

POBO.

10. During the course of his judgment the

magistrate expressed the opinion that there could only be an offence under

section 30(1) where there was "a suspect or an allegation of a Bribery

Ordinance offence against a specified person". This matter was not before the Court of Appeal because the

question in the stated case related solely to the magistrate's ruling that

section 30(1) had been repealed by the BORO.

However their Lordships invited counsel to address them upon this point

of construction. In the light of these

submissions the Board considers that the construction favoured by the

magistrate is correct. The first limb

of the subsection covers disclosure to a known person, A, who is under

investigation. The second limb covers

disclosure to any other person, B, of either (1) the identity of any person who

is the subject of such an investigation, i.e. A or (2) any details of any

such investigation. The words

italicised must relate back to an investigation of the type referred to in the

first limb and in the first part of the second limb, that is to say, an

investigation of which the subject is known.

The subsection thus covers three situations namely (1) disclosure to A,

the person being investigated, (2) disclosure of A's identity to another

person, B, and (3) disclosure to B of details of the investigation of A, no

doubt because such details might enable B to ascertain and divulge the identity

of A.

11. There was no evidence that at the date of

publication of the newspaper anything other than a general investigation was

being carried on by ICAC with no suspect being in view. In that situation it would follow that no

offence could have been committed under section 30(1) even if it had not been

repealed. That would be sufficient for

the disposal of this appeal but in view of the importance of the issue raised

as to the effect of article 16 of the Bill upon section 30 their Lordships

consider that it would be appropriate to express their views thereanent.

12. In concluding that section 30(1) was

inconsistent with the Bill the magistrate found that its usefulness in

facilitating investigations into POBO offences was disproportionate to a social

need to combat corruption since

it was a blanket restriction taking no

account of particular circumstances. The Court of Appeal, whose judgment was

given by Litton V.-P., concluded that section 30(1) in its full amplitude was

necessary for the protection of (a) effective law enforcement in the field of

prevention of bribery, and (b) the respect for the rights and reputations of

other persons.

Lord Lester Q.C., for the appellants, accepted

that the aims of section 30(1) were legitimate and that the first limb thereof,

that is to say the prohibition on disclosure to a suspect, was not inconsistent

with the Bill. However, he maintained

that the second limb went too far and was disproportionate to the legitimate

aims of the section.

In developing the argument that it was not

necessary within the meaning of Article 16(3) of the Bill for the two purposes

Lord Lester referred to a considerable number of decisions from various

jurisdictions including this Board and the European Court of Human Rights

("ECHR"). These decisions

established the following propositions:-

(1) A

constitution, and in particular that part of it which protects and entrenches

fundamental rights and freedoms to which all persons in the state are to be

entitled, is to be given a generous and purposive construction (Attorney-General

of The Gambia v. Momodou Jobe [1984] A.C. 689, Lord Diplock at page 700H, Attorney-General

of Hong Kong v. Lee Kwong-kut [1993] A.C. 951, Lord Woolf at page 966E).

(2) Any

restrictions on the guaranteed right of freedom of expression which constitutes

one of the essential foundations of a democratic society must be narrowly

interpreted. This proposition was

stated by the ECHR in the context of Article 10 of the European Convention for

the Protection of Human Rights and Fundamental Freedom (1953) (Cmd 8969) in The

Observer and The Guardian v. The United Kingdom (1991) 14 E.H.R.R. 153 at

page 191. That article contains

provisions virtually identical to those in Article 16 of the Bill. In Derbyshire County Council v. Times

Newspapers [1993] AC 534 Lord Keith of Kinkel at page 551 expressed the

view that there was no difference in principle between English common law

relating to freedom of speech and the provisions of Article 10 of the

Convention.

(3) Any

restrictions on the guaranteed right of freedom of expression must be

proportionate to the aims sought to be achieved thereby (James v. The United

Kingdom (1986) 8 EHRR 123 at page 145, Attorney-General v. Guardian

Newspapers Ltd. (No. 2) [1990] 1 AC 109, Lord Goff of Chieveley at page

283-284). These three general

propositions were not in dispute, what was in dispute was the application of

the third proposition to the second limb of section 30(1).

13. The ECHR accepts that contracting states enjoy

a margin of appreciation in determining what is necessary to achieve a

legitimate aim. This respectfully seems

to their Lordships to be sound common sense since material conditions may vary

considerably even within the number of contracting states to the European

Convention. Thus in James v. The

United Kingdom the judgment at page 142 stated:-

"(a) Margin of appreciation

46. Because of their direct

knowledge of their society and its needs, the national authorities are in

principle better placed than the international judge to appreciate what is `in

the public interest'. Under the system

of protection established by the Convention, it is thus for the national

authorities to make the initial assessment both of the existence of a problem

of public concern warranting measures of deprivation of property and of the

remedial action to be taken (see Handyside v. U.K. (1976) 1 EHRR 737, para. 48). Here, as in other

fields to which the safeguards of the Convention extend, the national

authorities accordingly enjoy a certain margin of appreciation."

In Informationsverein Lentia v. Austria

(1993) 17 E.H.R.R. 93 it was stated at page 112:-

"35.

The Contracting States enjoy a margin of appreciation in assessing the

need for an interference, but this margin goes hand in hand with European

supervision, whose extent will vary according to the circumstances."

14. Moving from Europe to the Commonwealth in Hector

v. Attorney-General of Antigua and Barbuda [1990] 2 A.C. 312, Lord Bridge

of Harwich said in a case involving the constitutional right of freedom of

expression at page 320A:-

"Their Lordships are very conscious that

in relation to constitutional issues of the kind to which this appeal gives

rise it is always appropriate to give special weight to the views of the judges

in the courts below insofar as they reflect the advantage which those judges

enjoy of familiarity with prevailing local conditions."

In La Compagnie Sucriere de Bel Ombre Ltee

v. Government of Mauritius (46/1995) 13th December 1995 Lord Woolf said, in

the context of an alleged contravention of a section of the constitution of

Mauritius dealing with fundamental rights and freedoms of the individual:-

"This approach involves looking at the

totality of what is relied on as an interference with interests ..., when

determining whether there

has been a

contravention of

section 3(c).

In Mauritius it is

the task of the Supreme Court to

carry out that exercise. Unless the

Supreme Court in doing this misdirects itself in law or otherwise fails to have

proper regard to the relevant considerations, it is not for their Lordships to

interfere with their decision. Their

Lordships on an issue of this nature, like the European Court, will extend to

the national court a substantial margin of appreciation. Similarly their Lordships are in accord with

the European Court in respecting the national legislature's judgment as to what

is in the public interest when implementing social and economic policies unless

that judgment is manifestly without foundation (James v. United Kingdom

(1986) 8 EHRR 123)."

15. Given that local conditions of parties to the

International Covenant are likely to vary far more widely than conditions in

states who are contracting parties to the European Convention their Lordships

consider that the situation in Hong Kong must be of considerable importance in

determining the proportionality of the means adopted to achieve the aim. It is therefore appropriate to see how the

local courts have viewed section 30. In

Mohammed Yaqub Khan v. Attorney General [1987] H.K.L.R. 145, Fuad J.A.

at page 147 said:-

"In my judgment Judge Wong was clearly

right in concluding that the primary purpose of section 30 is to protect the

confidentiality and efficacy of the investigation and thus it prohibits

unauthorised disclosure to the person under investigation that he is under

investigation and any details of such investigation. Obviously such knowledge would enable the person concerned, if he

were so minded, to abscond, tamper with the evidence or otherwise attempt to

frustrate the investigation. The second

part of subsection (1) seems to me to have two aims. Information passed on to another concerning the identity of the

person under investigation or any details of the investigation (including, I am

prepared to accept for the purposes of argument, the means of identifying the

informer) might come to the ears of the `suspect' and prejudice the

investigation; and so the primary purpose of section 30 is thereby still

advanced. However, particularly when

regard is had to subsection (2) of section 30, it seems clear to me that the

section is also designed to protect the reputation of the person under

investigation unless and until one or other of the events specified in

subsection 2 has occurred."

16. At page 148E Leonard V.-P. observed that

section 30 was enacted in the general interests of the public to safeguard the

confidentiality of ICAC

investigations. In the

present case

17. Litton V.-P., delivering the judgment of the

Court of Appeal, referred to the fact that the courts had repeatedly stressed

that corruption was a particularly insidious evil in society and concluded by

stating that the experience of the courts had demonstrated over and over again

the necessity for legislation such as section 30(1). These views are entitled to careful consideration by their

Lordships unless it appears that the advantage of local knowledge played no

part in the reasoning.

18. Against this background the question which

their Lordships have to determine is whether the second limb of section 30(1)

is necessary to preserve the integrity of investigation into corruption in Hong

Kong or whether it is disproportionate to that aim. The jurisprudence of the ECHR establishes that

"necessary" implies the existence of a pressing social need (Attorney-General

v. Guardian Newspapers Ltd. (No. 2) [1990] 1 AC 109 Lord Goff of

Chieveley at page 283, Derbyshire County Council v. Times Newspapers Ltd.

[1993] AC 534, Lord Keith of Kinkel at page 550H). However the existence of an alternative means of achieving the

legitimate aim does not render the relevant legislation unjustified:-

"... it constitutes one factor, along with

others, relevant for determining whether the means chosen could be regarded as

reasonable and suited to achieving the legitimate aim being pursued, having

regard to the need to strike a `fair balance'.

Provided the legislature remained within these bounds, it is not for the

Court to say whether the legislation represented the best solution for dealing

with the problem or whether the legislative discretion should have been

exercised in another way." (James

v. United Kingdom [1986] 8 EHRR 123 at page 145-6.

19. The courts in Hong Kong have not been assisted

by substituting for "necessary" a phrase such as "pressing

social need" which has commended itself to the ECHR (Tam Hing-yee v. Wu

Tai-wai [1992] 1 H.K.L.R. 185 Cons V.-P. at page 191, Litton V.-P. in this

case). Their Lordships do not consider

that the Hong Kong courts can be criticised for attributing to the word

"necessary" its normal meaning.

It must be remembered that the role of the ECHR in relation to the

domestic legislation of contracting states differs markedly from the role of

the Hong Kong courts in relation to legislation which is claimed to contravene

the entrenched provisions of the Bill.

As Lord Woolf said in Attorney-General of Hong Kong v. Lee Kwong-kut

[1993] A.C. 951 at page 966G:-

"However, it must not be forgotten that

decisions in other jurisdictions are persuasive and not binding authority and

that the situation in those jurisdictions may not necessarily be identical to

that in Hong Kong. This is particularly

true in the case of decisions

of the European Court of Human

20. Rights, as Silke V.-P. recognised. The European Court of Human Rights is not

concerned directly with the validity of domestic legislation but whether, in

relation to a particular complaint, a state has in its domestic jurisdiction

infringed the rights of a complainant under the European Convention; whereas, in

the case of the Hong Kong Bill, the Hong Kong courts, and on appeal the Board,

have to determine the validity of domestic legislation having regard to the

entrenched provisions of the Hong Kong Bill."

21. Lord Lester argued that the second limb of

section 30(1) imposed a blanket restriction on disclosure which went far

further than was necessary to achieve the desired aim and which was unique in

the Commonwealth and in relation to investigation of other offences involving

dishonesty or drugs in Hong Kong. The

protection afforded to the reputation of suspects was wider than that provided

by the laws of libel.

22. Their Lordships do not think that the second

limb can be properly described as a blanket restriction. As the Solicitor-General pointed out the

words "without lawful authority or reasonable excuse" demonstrate

that there can be situations in which disclosure takes place without an offence

being committed. Furthermore disclosure

ceases to be restricted after the arrest of a suspect (section 30(1A)). More formidable was the Solicitor-General's

argument as to the inseparability of the two limbs of section 30(1). In their Lordships' view once it is accepted

that the first limb is necessary the absence of a second limb would completely

destroy its effectiveness. It would be

an offence to disclose the fact of the investigation to the suspect but no

offence to disclose it to his wife, business partner, or anyone else who would

be likely to pass on the information.

The aim is to prevent the suspect coming to hear of the investigation so

that he will not take avoiding action by rearranging his affairs, destroying

documents or even leaving the Colony.

This can only be achieved if disclosure is restricted in such manner as

to see that the information does not reach him. The fact that disclosure of investigations into other offences is

not so severely restricted does not render the provisions of section 30(1)

disproportionate or unnecessary. In

many offences involving dishonesty there will be a party who suffers and who

has an obvious interest to report the matter to the authorities with the result

that the offender can expect that some investigation into the offence will take

place. In cases of bribery, however,

neither party to the transaction is likely to have any interest to report the

matter - rather the reverse, since both are likely to be satisfied with what

has occurred. This means that bribery

offences are particularly difficult to detect and the maintenance of secrecy

as to an investigation is even more important in order

not to put the suspect on his guard. So far as the protection or the reputation

of suspects is concerned this is of secondary importance to the protection of

the integrity of the investigation. It

must be the measures relevant to the latter protection which will determine

whether or not the second limb has been repealed.

23. Lord Lester argued that the restrictions in the

second limb were disproportionate in that they criminalised disclosures even

when no prejudice was caused or likely to be caused to an ICAC investigation

and even if the accused believed that there would be no prejudice. The difficulty about this argument is that

in many cases it will be impossible to know whether disclosure has prejudiced

an investigation or not, for example, a suspect might destroy incriminating

documents of which the investigator was not and never would be aware but which

he would have discovered had there been no prior disclosure. For the same reason the suggestion that the

desired aim could have been achieved by qualifying the second limb of the

subsection with some such words as "likely to prejudice the

investigation" fails because of the difficulty of establishing when a

disclosure satisfied the test. If the restriction is to be effective it cannot

draw distinctions between prejudicing and non-prejudicing disclosures nor have

regard to the state of mind of the discloser.

Their Lordships consider that the Solicitor-General is correct in his submission

that if the first limb is accepted to be proportionate the second limb cannot

be considered to be disproportionate.

The two limbs must hang together.

24. As the validity of section 33 had not been

raised in the courts below Lord Lester did not feel able to attack it before

the Board but he argued that the mandatory penalty in the section was so

draconian and disproportionate as to vitiate the second limb of section

30(1). Their Lordships reject this

submission. It is not necessary for

them to express a view as to whether section 33 should be repealed and they

certainly would not wish to do so without the benefit of the views of the Hong

Kong courts. However for the purposes

of this argument it will be assumed that section 33 is inconsistent with

Article 16. In that situation it is

clearly severable from section 30(1) which already carries an in-built

penalty. To quote the words of Lord

Diplock in Attorney-General of The Gambia v. Momodou Jobe [1984] A.C.

689 at page 703F:-

"It complies with the test of severability

laid down by Viscount Simon in Attorney-General for Alberta v.

Attorney-General for Canada [1947] AC 503, 518:

`The real question is whether what remains is

so inextricably bound up with the part declared invalid that what

remains cannot independently survive or, as

it has sometimes been put, whether on a fair

review of the whole matter it can be assumed that the legislature would have

enacted what survives without enacting the part that is ultra vires at

all.'"

25. If section 33 is severable it follows that it

cannot vitiate section 30(1).

26. The Solicitor-General drew the Board's

attention to the fact that after the passing of the BORO the Legislative

Council in debating the amendment to section 30 of the POBO by the additional

subsection (1A) had concluded that notwithstanding the passing of the Bill the

section 30 offence should stand subject only to the time during which it could

be committed being reduced.

27. The position is accordingly this. First, the Legislative Council has decided

that notwithstanding the provisions of the Bill section 30(1) is necessary to

preserve the integrity of investigations into corruption. This is a policy decision that cannot be

described as "so unreasonable as to be outside the State's margin of

appreciation" (James v. United Kingdom (1986) E.H.R.R. 123 at page

154). Indeed it appears to their

Lordships to be a decision which was eminently sensible and by no means

disproportionate to the important objectives sought to be achieved. Secondly, the court with its knowledge of

local conditions in Hong Kong has endorsed the decision. In these circumstances their Lordships could

see no reason to interfere. Their

Lordships would only add that even if it were appropriate to construe the word

"necessary" in Article 16 as implying a pressing social need the

circumstances in this case would satisfy that test. It cannot be denied that there is a pressing social need to stamp

out the evil of corruption in Hong Kong.

Investigation by the ICAC is an important means of achieving that end

and the protection of the integrity of such investigation is essential. If, as the Board accepts, the second limb of

section 30(1) is necessary for such protection it must also follow that it

satisfies the pressing social need to protect.

28. In these circumstances had their Lordships been

called upon to decide whether the second limb of section 30(1) had been

repealed by the Bill they would have decided that it had not. In the event their Lordships will humbly

advise Her Majesty that the appeal should be allowed only upon the ground of

the construction of that subsection.

There will be no order as to costs before their Lordships' Board.