Newspapers criticised by judge

A HIGH Court judge yesterday criticised two newspapers for trying to intervene in the administration of justice and to put pressure on the Attorney-General to reopen an inquest.

Mr Justice Sears said the Sunday Morning Post was clearly in contempt of court and requested its editor, Peter Lynch, to attend court today to show why he and the paper should not be prosecuted for that.

The judge ordered Mr Lynch, and requested the editor of the South China Morning Post, David Armstrong, to appear in court today to answer questions about the sources of information.

He pointed out that there was no privilege to withhold it.

He made the order and request in open court following a chambers' hearing on an application of variation of terms listed in an interim injunction granted to China Light and Power (CLP) against barrister Michael Ford.

Mr Ford had represented CLP in the inquest into the death of two engineers killed in an explosion at the Castle Peak power plant on August 28 last year, but his employment was terminated during the hearing.

An interim injunction had already been granted by the judge on July 16 to restrain Mr Ford from revealing information he obtained while acting as CLP's counsel in the inquest.

Subsequent to that, Mr Ford filed a claim in Texas against CLP's controlling company, Exxon, seeking US$125 million (HK$969.4 million) for damages allegedly arising from his dismissal.

Varying the terms of the interim injunction to allow Mr Ford to communicate with his lawyers, Mr Justice Sears said as a barrister Mr Ford was under a duty to return all the papers and documents entrusted to him while he acted as CLP's counsel.

Unfortunately, he did not do so but retained a substantial quantity of documents, which was clearly for the purpose of instituting proceedings against CLP and Exxon for a substantial claim of damage, he said.

Mr Justice Sears said that soon after his granting of the interim injunction, there was substantial press coverage, in particularly in the Sunday Morning Post and the South China Morning Post, to put pressure on the Coroner, Warner Banks, and the Attorney-General, Jeremy Mathews, to reopen the inquest.

He said pressure was also put on his court, seeking in some way to influence any decision he was going to make.

While acknowledging the right of freedom of press and speech, the judge said these press reports were potentially in contempt of court.

He said he had established a reputation of upholding citizens' rights in Hong Kong. However, he said, while it was not necessary for him to comment on the press reports, newspapers must take care not to intervene in the administration of justice, and justice meant justice for all parties concerned.

His main role for the moment was to prevent any injustice being done to CLP, the judge added.

He said that on August 1 the Sunday Morning Post had published an article entitled ''Sacked lawyer sues over blast'', which had set out matters over which he had already granted an injunction and should not be released.

However, the Sunday Morning Post seemed not to have read his order or understood its implication; it deliberately chose to publish the matter which fell into the ambit of his order, he said.

Since then, the two newspapers seemed to embark upon continuing to apply pressure on the coroner and the Attorney-General to reopen the inquest without understanding what had happened, he said.

Last Sunday, he said, the Sunday Morning Post and its editor published another article and an editori-al on the issue and about the hearing of yesterday's injunction.

This article appeared to be deliberately aimed at trying to influence him in his decision and it appeared that the Sunday Morning Post was clearly in contempt of court, he said.

He said it was a serious contempt but he would allow them to make representation as to why he should not seek that the Attorney-General institute contempt proceedings against the paper.

In the case of the South China Morning Post, said the judge, further investigation would be made to see if it was also in contempt of court.

Mr Justice Sears warned newspapers not to intervene in private litigation otherwise they would run the risk of interfering with the administration of justice.

It had to be understood that the court's jurisdiction should not be ignored, he said, adding that the papers were wrong to think they could lay down the law for Hong Kong.

He said the inter parte hearing of the interim injunction was originally listed for July 26 but he got a letter from Mr Ford, stating that he was touring in France and was unable to attend court and asked for a 21-day adjournment to enable him to preparehis defence.

While he would not comment on CLP's application at the moment, it appeared to him that Mr Ford did not have any defence at all in the case, he said.

He said Mr Ford claimed that although the interim injunction was granted on July 19, it did not reach him until later.

He had considerable doubt about that, said the judge, as it appeared that Mr Ford was kept informed of the matter but he chose to issue proceedings in Texas after the granting of the interim injunction.

Under the circumstances, he appeared to have been in breach of the court order, said Mr Justice Sears, adding that it must be made clear that the papers involved were indeed privileged documents.

As a lawyer, Mr Ford must have known it was his duty to return the papers once he ceased representing CLP, he said.

It was elementary to all lawyers that they should not use any such documents given to them unless the lay client waived that privilege, he said.

Whether Mr Ford was trying to utilise the documents for a substantial claim of money was not for him to comment, he added.

However, he agreed to an adjournment to give Mr Ford an opportunity to appear in court and at the same time ordered that he should swear an affidavit to identify what instructions, documents and opinion arising from his role as counsel for CLP were in his possession.

Apparently he had not even bothered to do so but had just returned a bundle of documents of which no doubt he had retained copies, said Mr Justice Sears.

He said it was conceded that on July 29 Mr Ford came to Hong Kong and was seen by a member of the Bar and was interviewed by a solicitor on the same day.

But he did not come before court to ask that part of the condition listed in the interim injunction be removed on the grounds that it appeared to prevent him from instructing lawyers to represent him, said the judge, adding that Mr Ford appeared to him to be an evasive person.

He said there was no doubt Mr Ford had utilised the documents and papers which did not belong to him and were privileged and confidential.

It appeared that Mr Ford was in contempt of his order not to file an affidavit, said the judge.

He ordered Mr Ford to swear one to explain his conduct since the granting of the interim injunction on July 19.

The judge also said he noted that CLP had already filed a complaint to the Bar Council alleging breaches of professional conduct in that Mr Ford did not return the papers entrusted to him and made use of them.

Mr Justice Sears said he would send his judgment to the chairman of the Bar Association, Jacqueline Leong QC, and he would advise her to investigate the matter.