A

HCMP 1851/2013

B
C

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO 1851 OF 2013

_______________

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

IN THE MATTER OF the

Kowloon City Magistrates Courts
Criminal Case No 1111 of 2013

_______________

BETWEEN
SECRETARY OF JUSTICE

Plaintiff

and

P
Q
R

AND

N
O

LI PANG KAY
(in his capacity as the editor of Sharp Daily)

1st Defendant

SHARP DAILY LIMITED

(in its capacity as the publisher
and proprietor of Sharp daily)

2nd Defendant

_______________

N
O

and

P
Q
R
S
T
U

HCMP 1852/2013

B
C

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO 1852 OF 2013

_______________

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

IN THE MATTER OF the

Kowloon City Magistrates Courts
Criminal Case No 1111 of 2013

_______________
BETWEEN
SECRETARY OF JUSTICE

Plaintiff

and

R
S
T
U

J
K

and

CHEUNG KIM HUNG

(in his capacity as the editor of Apple Daily)

1st Defendant

APPLE DAILY LIMITED

(in its capacity as the publisher
and proprietor of Apple daily)

2nd Defendant

_______________

P
Q
R
S

(Heard Together)
T
U

-3-

A
B

Before: Hon Au J in Chambers

Date of Hearing: 14 August 2015

A
B
C

Date of Decision: 20 August 2015

D

DECISION

E
F

A.

INTRODUCTION

These are contempt proceedings respectively against Mr Li

and Sharp Daily Ltd (under HCMP 1851/2013) and Mr Cheung and
Apple Daily Ltd (under HCMP 1852/2013). The contempt committed is

I
J

in relation to the publication on 20 March 2013 of (a) an article

respectively on the newspaper Apple Daily and Sharp Daily of an
interview of a Mr Chau who was arrested and charged for double

K
L

N
O
P

interview. The interview was conducted while Mr Chau was in jail

was still pending.

T
U

H
I
J
K
L
M
N
O

At that time, Mr Cheung and Mr Li were the editors

respectively of Apple Daily and Sharp Daily. Apple Daily Ltd and Sharp

P
Q

and Sharp Daily.

R

R
S

video clip were published when the anticipated criminal trial of Mr Chau

Daily Ltd are respectively the proprietors and publishers of Apple Daily
Q

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

After ex parte leave to commence these contempt

proceedings was granted on 31 July 2013 by Poon J, Mr Cheung and

Mr Li (both for themselves and on behalf of the corporate defendants)

T
U

-4-

respectively filed an affirmation on 4 October 2013 under the respective

proceedings. In these affirmations, Mr Cheung and Mr Li both admitted

F
G

mitigation.
4

The substantive hearing of the contempt proceedings are

now fixed for 16 and 17 September 2015.1

Given the defendants

that hearing is sentence.

5

K
L

Before me are now the plaintiffs applications made under

certain matters they have deposed to in their affirmations.

6

These applications are opposed by the defendants.

M

B.

THE PRESENT APPLICATIONS

B1.

The intended questions of cross-examination

The relevant parts of the affirmations that the plaintiff wants

to cross-examine the deponents are paragraphs 12.2 and 13 of

Mr Cheungs affirmation, and paragraph 9.2 of Mr Lis affirmation. For
completeness, I would quote the relevant full paragraphs as follows:
(1)

For Mr Cheungs affirmation:

S
1

both proceedings to cross-examine Mr Cheung and Mr Li in relation to

O
P

M
N

I
J

D
E

accepted liability for contempt, the only issue left for determination at
H

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.

Q
R
S
T
U

-5-

A
B

12. The Plaintiffs application arises from the 1st and

2nd Defendants reporting of a double homicide case. The
events leading to the relevant publication are, in sum, as
follows:

12.1. On or about 13th March 2013, a Mr. Henry Chau

(Mr. Chau) and his elder brother approached the
2nd Defendant in order to seek its assistance to locate
their missing parents.
12.2. On about the night of 14th March 2013 or at the
early hours of 15th March 2013, it came to the
attention of the 1st and 2nd Defendant [sic] that
Mr. Chau had made known to a chat-group through
a smartphone application WhatsApp that he was
then present at the Police Headquarters for the
purpose of giving a witness statement stating
inter alia that he had murdered his parents.

F
G
H

12.3. On 15 March 2013 Mr. Chau and a Mr. Tse Chun

Kei (Mr. Tse) were arrested for the murder of the
deceased, Mr. Chaus parents. They were detained
for further police investigation and were
subsequently charged with two counts of murder on
17 March 2013. The two accused appeared before
the Kowloon City Magistracy on 18th March 2013.

J
K
L

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.

M
N

13.

O
P
Q
R

(2)

The extensive media reporting of the double homicide

case was expected, given the surprising turn of events in
this highly unusual case. The public had seen how
Mr. Chau, who had initially approached the 2nd Defendant
seeking assistance on his missing parents, was now
charged with the murder of his parents. A collective
decision was therefore made amongst the Newspapers
editorial staff to instruct our reporters to find out what
had happened, and to follow up on the events that had
occurred since Mr. Chau had approached us on 13 March
2013. (emphasis added)

For Mr Lis affirmation:

9.

G
H
I

The Plaintiffs application arises from the 1st and

2nd Defendants reporting of a double homicide case. The
events leading to the relevant publication are, in sum, as
follows: -

J
K
L
M
N
O
P
Q
R
S
T
U

-6-

9.1

B
C

9.2

E
F
G

On or about 13th March 2013, a Mr. Henry Chau

(Mr. Chau) and his elder brother approached the
Apple Daily Newspaper in order to seek its
assistance to locate their missing parents.

On about the night of 14th March 2013 or at the

early hours of 15th March 2013, it came to our
attention that Mr. Chau had made known to a chatgroup
through
a
smartphone
application
WhatsApp that he was then present at the Police
Headquarters for the purpose of giving a witness
statement stating inter alia that he had murdered his
parents.

9.3. On or about 15 March 2013, Mr. Chau and a Mr. Tse

Chun Ki (Mr. Tse) were arrested for the murder
of Mr. Chaus parents. They were detained for
further police investigation and were subsequently
charged with two counts of murder on or about
17 March 2013. The two accused appeared before
the Kowloon City Magistracy on or about
18th March 2013.

H
I
J

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)

K
L

These are matters said to be related to the circumstances

leading up to the said publication of the articles.

9

The questions that the plaintiff intends to ask Mr Cheung

H
I
J
K
L

and Mr Li by way of cross-examination are similar.

10

In relation to Mr Cheung, they are as follows:

Who informed or alerted Mr Cheung and Apple and by

(1)
S

O
P

M
N

what means of the fact that Mr Chau had made known to a

T
3

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.

-7-

A
B

WhatsApp chat-group that (a) he was at the Police

Headquarters for the purpose of giving a witness statement

Please identify the persons involved in the collective

decision described in paragraph 13 of Cheungs Affirmation?

(3)
F

What were the exact instructions (referred to in paragraph 13

of Cheungs Affirmation) given by the Newspapers editorial
staff to the reporters?

G
H

(4)

Who gave the said instructions?

(5)

Who were the said instructions given to (ie, please identify

the reporters mentioned in paragraph 13 of Cheungs

Affirmation)?
J

(6)

(7)

G
H
I
J

offending articles obtained?

(9)

Whether or not the articles had been considered by

Mr Cheung before publication?

11
(1)

M
N
O

In relation to Mr Li, they are as follows:

Who informed or alerted Mr Li and Sharp and by what

means of the fact that Mr Chau had made known to a

Whatsapp chat-group that (a) he was at the Police
Headquarters for the purpose of giving a witness statement

How and by whom were the information published in the

Please identify the author(s) of the offending articles?

carried out those instructions?

(8)

Whether the said instructions were carried out and who

and (b) he had murdered his parents?

(2)

R
S

and (b) he had murdered his parents?

T
U

-8-

A
B

(2)

How and by whom were the information published in the

offending articles obtained?

(3)

Please identify the author(s) of the offending article?

(4)

Whether or not the article had been considered by Mr Li

before publication?

B2.

The parties primary position

12

It is fairly not disputed by Mr Pun SC (for the defendants)

that the court does have the case management discretion to grant leave to
cross-examine defendants or witnesses in a contempt proceeding on the

I
J

L
M

that discretion have been set out in Comet Products UK Ltd v Hawkex

skeleton) as follows:
(1)

A respondent to an application for committal is a competent

638A, 639C. Hence, Order 52, rule 6(4) provides that: If

on the hearing of the application the person sought to be

H
I
J
K
L
M
N
O

(2)

The court, in exercising the power to regulate its own

procedure, is entitled to require a respondent to swear

affidavits or produce statements of witnesses of fact on

R
S

in convenient time before the hearing to permit proper

preparation of evidence in reply. Re B at 629D-E, 637H638D, 638G, 639C.

behalf, he shall be entitled to do so.

which they may wish to rely and to file and serve the same
S

committed expresses a wish to give oral evidence on his own

WLR 627. They can be summarised (as helpfully set out in the plaintiffs

but not compellable witness. Comet at 74E-F, 77D; Re B at

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

T
U

-9-

A
B

(3)

The applicant cannot make use of the respondents evidence

until the same is deployed by the respondent (by reading or

examination until such time as he deploys the evidence in his

E

(4)

Nevertheless, a respondent who has sworn and filed an

affidavit cannot withdraw it. One consequence of this is that

it as admissions helping his case against the respondent.

Comet at 74F-G, 77D.

(5)

examined in the normal way. It would only be in a very

exceptional case that a judge ought to refuse an application

to cross-examine a deponent on his affidavit. Comet at 75G,

Although not disputing these principles, the primary ground

questions are simply irrelevant to the issue of sentence. Mr Pun also

I
J
K
L

N
O
P

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

of opposition taken by Mr Pun is that the intended cross-examination

submits that the plaintiffs application should be refused on the basis that

13

76G, 77F; Re B at 638B-C.

Where a respondent to an application for committal chooses

to file and rely upon affidavit evidence, he can be cross-

the applicant is entitled to make such use of the statements in

own case. Re B at 629E-F, 635B-H, 638D-G.

relying upon the same). A respondent who complies with

the courts direction to file evidence is not in peril of cross-

Q
R

interferes with the freedom of press as the questions in effect seek to

identify journalistic sources and the internal workings of the newspaper
organisations.

S
T
U

- 10 -

A
B

14

It is accepted by Mr Jat SC (together with Mr Anthony

Chan) for the plaintiff that, as a starting point, the court must be satisfied
C

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

J
K
L
M

O
P

liable for contempt.

R
S

16

H
I
J
K

Accepting that those questions could have been better

framed, leading counsel says these questions in fact are intended to elicit

M
N

committed, which is relevant to showing the gravity or culpability of the

offence vis-a-vis the defendants. The said evidence relates to:
(1)

Whether the editors had considered the reliability of the

O
P
Q

before relying on it to instruct the reporters embarking onto

the task of interviewing Mr Chau. This Mr Jat says would

show whether the editors and the newspapers had acted in a

cavalier manner in committing the contempt, which would
add to the gravity of the conducts (this relates to

source of information relating to the WhatsApp messages

Q

by way of these questions to identify any further persons potentially

evidence as to the manner in which the contemptuous acts were

N

15

the relevance is as to whether the evidence to be extracted relates to the

G
H

that the questions sought to be asked in cross-examination, and thus the

evidence coming out from it, are relevant to the issue of sentence, which

S
T

Mr Cheungs and Mr Lis question (1)).

U

- 11 -

A
B

(2)

Whether there was any dissenting or cautioning opinion

raised in the collective decision to proceed with the

against the risk of committing contempt. If so, again (says

E

more culpable in committing the contempt than the situation

where no such cautioning reminders had been positively
raised (this relates to Mr Cheungs question (2)).

(3)

Whether it was the specific instruction of the editors that had

caused the reporters to go to SLPC where Mr Chau was kept
in custody as his purported friends to interview him. If so, it

would show that the editors intentionally and positively

which may render the editors contempt a more culpable one

than a case where the editors and the newspapers are held to

be responsible for the reporters acts simply as a matter of

principle (this relates to Mr Cheungs questions (3) and (6)).

(4)
N

E
F
G
H
I
J

Whether the article in its final form as published is a product

K
L
M
N

solely of the reporters reporting, or whether it is a product

of say creative writing contributed by other editorial staff,

including the editors, based on the interview records. If it is

the latter, it is also relevant to sentence since it would be

(says Mr Jat) a more grave conduct to publish a

Q

P
Q

contemptuous article the contents of which is a result of the

defendants own creation (this relates to Mr Cheungs

questions (7)-(8) and Mr Lis questions (2)-(3)).

(5)

R
S

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

instructed or caused the reporters to act in the way they did,

Mr Jat) that would show that the editors and newspapers are

interview and publish the article, which would show whether

the editors made that decision in spite of being cautioned

T
U

- 12 -

A
B

article to be published than a case when they did it without

in fact seeing them in the first place (this relates to

A
B
C

Mr Cheungs question (9) and Mr Lis question (4)).

D

17
E
F

Mr Jat further submits that all this evidence relates to or

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

G
H
I
J
K
L

management power can allow.

B3.

18

With respect to Mr Jat, notwithstanding his very persuasive

submissions, I am not convinced that I should exercise my discretion in

the present case to allow those cross-examinations. My reasons are as

L
M

19

First, in relation to the evidence concerning the reliability of

N
O

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.

P
Q

As such, I do not regard this evidence relevant to the

culpability of the defendants in the present circumstances. For example,

R
S

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
S

Courts view

reported in the article as to what was said by Mr Chau in the interview is

Q

the source of information about the WhatsApp messages, this must be

O

principles laid down in Re B, where the court in the exercise of its case

M
N

T
U

- 13 -

A
B

publication of the articles and video clip) more offensive or unacceptable,

I am unable to see how the failure to check the reliability of this source in

20

Second, all the rest of the suggested evidence that could be

obtained through the proposed cross-examination as set out in paragraph

16 (2) to (5) above is by its nature seeking to show that the editors are
more culpable in committing the contempt because they had actively and

H
I

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,

J
K

notwithstanding any dissenting or cautioning reminders. I agree that in

the editors are passively held to be responsible for the article as written

However, I am not persuaded that in the present context, I

S
T
U

I
J
K
L
M
N

should exercise my discretion to require the editors to be cross-examined

on these matters. This is so because, as far as I understand it from the
editors affirmations and from the submissions put forward by the

21

responsible officers in the hierarchy.

O
P

those circumstances (if the evidence so supports) than the situation where
and published in its final form solely because they are the ultimate

and made the decision to write up the article and publish it

principle, there could be a higher degree of culpability of the editors in

this case could be regarded by the court as a material aggravating factor

in considering sentence.

Q
R

defendants in these applications, it is not the defendants case of

mitigation that there should be a more lenient sentence because (a) they
had in fact checked the reliability of the source of information; (b) they

S
T

had not specifically instructed or caused the reporters to do what they did
U

- 14 -

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

F
G
H

to influence the sentence by advocacy or say anything that could be taken

to give leave for cross-examination to effectively require the defendants
to come forward and give further and positive evidence to establish these

In this respect, it is accepted by Mr Pun that, for the purpose

any event responsible for the conducts of the reporters, the final content
Coupled with the

R
S
T
U

K
L

observations set out in paragraph 21 above, I think it is a fortiori that I

should not exercise my discretion to allow cross-examination on those

23

Finally, given Mr Jats clarifications as recorded at paragraph

15 above, there is no question that these applications represent a fishing

of sentence, the editors as the ultimate responsible office-holders are in

proposed matters in the circumstances of the present case.

rely on those aspects of the evidence.

of the article and the decision to publish it.

L

potential aggravating factors when their mitigation does not materially

22

as advocating severity,4 I do not think it is right to exercise my discretion

I
J

was a unanimous collective decision. In such circumstance, and in light

of the trite position (as submitted by Mr Pun) that the prosecution is not

M
N
O
P

exercise and an attempt to interfere press freedom. I therefore do not find

it necessary to deal with this ground of objection.

Q
R

24

For these reasons, I do not think enough has been shown to

justify the court to grant leave to the plaintiff to cross-examine

Mr Cheung and Mr Li in the forthcoming hearing in September.
4

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.

S
T
U

- 15 -

A
B
C

25

I would however put two caveats here.

26

First, my conclusion in this decision is premised to a large

as observed at paragraph 21 above. The court will be prepared to revisit

this question of cross-examination if the defendants run their mitigation

at the September substantive hearing differently from that understanding.

27

Second, I wish to make it clear that this decision should not

K
L
M
N
O
P
Q

outlined by Mr Jat above cannot be regarded as relevant or that no cross-

S
T
U

H
I
J

above, as I have emphasised, is only limited to the particular

circumstances of this case.

K
L

C.

CONCLUSION
M

28

I will refuse the plaintiffs applications and dismiss the

N

summonses.

D.

COSTS
P

29

Although the plaintiff is unsuccessful in these applications, I

fully note Mr Jats submissions that the plaintiff in making the

applications is only seeking to bring to the courts attention as early as

be read as suggesting that in all circumstances the type of evidence

examination on those types of question could be allowed. My conclusion

G
H

B
C

extent on the courts understanding of the defendants mitigation position

E

Q
R

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

S
T

these matters should have been raised earlier. These applications are
U

- 16 -

therefore made consistent with the observations in Re B at 638C-G and

with the objective to assist the court in properly case-managing these

D
E

30

I accept Mr Jats submissions.

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

H
I

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

J
K

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

31

I would therefore make an order nisi that there should be no

order as to costs of these applications. This order shall become absolute

P

S
T
U

H
I
J
K
L
M
N
O
P

14 days from today unless any of the parties applies to vary it.
Q

Q
R

sentence in light of the defendants affirmations. It is therefore right for

applications to clarify the position.

adjournments, see: Re B at 638C-G. Moreover, the applications would

own motion may come to the view that this type of evidence is relevant to

proceedings. The plaintiff should not be penalised in costs even if he

fails in the application.

32

Lastly, I wish to thank counsel for their assistance in this

matter.
S
T
U

- 17 -

B
C

(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

F
G
H
I
J
K
L
M
N
O
P
Q
R
S
T
U

Mr Hectar Pun SC, Ms Denise Souza and Mr Anson Wong Yu Yat,

instructed by Peter Cheung & Co, for the 1st 2nd defendants in HCMP
1851/2013

C
D
E
F
G
H

Mr Hectar Pun SC and Mr Albert NB Wong, instructed by Peter Cheung

& Co, for the 1st 2nd defendants in HCMP 1852/2013

I
J
K
L
M
N
O
P
Q
R
S
T
U