The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 8 of 1996

 

(1) Ming Pao Newspapers Limited

(2) Tung Chuen-Cheuk

(3) Cheung Kin-Bor and

(4) Fung Shing-Cheung Appellants

v.

The Attorney General of Hong Kong Respondent

 

FROM

 

THE COURT OF APPEAL OF HONG KONG

 

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 20th May 1996

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Present at the hearing:-

Lord Keith of Kinkel

Lord Jauncey of Tullichettle

Lord Mustill

Lord Nicholls of Birkenhead

Sir Ralph Gibson

  ·[Delivered by Lord Jauncey of Tullichettle]

 

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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that section 30 being inconsistent with the Bill of Rights contained in the Bill of Rights Ordinance ("BORO") had been repealed thereby.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of stated case and the Court of Appeal held that the magistrate had erred in law in concluding that section 30 had been repealed and remitted the case to the magistrate for trial.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.

 

 

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