THE HONGKONG WEEKLY PRESS AND
reason and public policy. It is a matter of Judges' law, a term used in contradistinction to statute or common law, and we would respectfully suggest to the Hongkong Judges that the case is worthy of reconsidera
tion.
But the broad question is, whether it is allow- | certain “discussion. Hel able for the publishers of a newspaper to print had been guilty of proceedings ponding in the Court before such writing for publication proceedings have come on to be heard. The fluence the result of the principle is equally applicable to any bill, or an- swer, or petition which may be filed in this Court, the statements therein contained being necessarily ex parte, and unaccompanied by any evidence or pleadings on the other side." Of course in this case the answer of the other side was given, but that answer was given without the permission of the other side. "But although every contributory or creditor is entitled to have a copy of the petition, it is not open to the public indiscriminately, who are strangers to the BEFORE ME. T. SERCOMBE SMITH (ACTING matter, nor is it the duty of the solicitor to
PUISNE JUDGE.)
SUPREME COURT.
8th July.
IN SUMMARY JURISDICTION,
YEUNG SHIU KAM ť. HON. F. A. COOPER
AND OTHERS;
1
Young Shiu Kam brought an action to re- cover $250 damages from Hon. F. A. Cooper, Dr. J. M. Atkinson, Mr. H. B. H. Lethbridge. Dr. F. W. Clark, Mr. N. J. Ede, and Police Constable Rae.
Mt. J. Hastings (of Mr. V. H. Deacon's office) appeared for the plaintiffs and Mr. A. B. John- son (Crown Solicitor) represented the defendants. His Lordship-Before this case proceeds the Court is bound to take notice of the publication in the Daily Press of last Saturday of the pleadings in this case before the case came on for hearing. I believe that the pleadings also appeared in the Telegraph, but under what circumstances I am not aware-whether the Telegraph obtained them in the same way as -the Daily Press obtained them, or whether the Telegraph simply cut them out of the Daily Press. The facts of the case as far as the Daily Press are concerned. are as follows. I believe I speak subject to correction-the representative of the Daily Press went to the office of the solicitors for the plaintiffs and obtained a copy of the pleadings-the petition and the answer-from the solicitor. After that the pleadings the petition and answer appeared in the morning paper. Now, I do not think that anybody in this Court has ever seen pleadings published in news papers before the action comes on for hearing. I myself have never seen it, and I have spoken to the Chief Justice and he has never seen it or heard of it. On the face of it, therefore, some gross irregularity has occurred, and that irregularity means, in fact, a contempt of Court. The law on the subject will be found in the case of In re Cheltenham and Swansea Railway Carriage and Wagon Com- pany, reported in Law Reports, Equity Cases, 1869, page 580. There a petition for wind. ing up a company, containing charges of frand against the directors, was published in extenso in a newspaper before the bear- ing of the petition. Held, that the pub lishers of the newspaper had committed contempt of Court; and they were ordered to pay the costs of a motion to commit. This was a motion, on behalf of the company, to commit the printers and publishers of the Bristol Daily Times and Mirror, for printing and publish ing the greater part of a petition presented to this Court for the winding up of the Company, The petition contained grave charges of fraud and misconduct against the directors, and was printed in extenso in the above-named news- paper on the 25th February, with the single exception of one paragraph, in which the number of shares held by the petitioner Was stated. There were no comments in the newspaper respecting the petition, eX- cept a short preface stating the fact of its presentation to the Court. The Vice Chancellor said :- This is a motion on behalf of the directors of a company to commit the proprietors of a newspaper for publishing in extenso a petition presented in this Court for the winding up of the company. The publica tion is introduced by a short statement under which the petition was presented; but for the present purposes I shall treat it as a simple publication of the petition unaccompanied by {any/comments. The petition itself contains grave; and serious charges with reference to the conduct of the directors." I would point out again that the petition in this case the true words of the petition did not bear the same
ning-contained serious charges with refer to the conduct of certain gentlemen,
Maly 18-1898
was heard before Lord Romilly Rolls. He said, "Then it is. that this is written, not by a who might say that he really all about the cause, but it in- solicitor of the gentleman who Mr. Daw in this suit. Surely that strong feature in the case; he must his client should succeed, and I vent there is no solicitor who would not in position feel the same thing, and it is im that a solicitor can safely, act in a matter of this description in writing an article in a paper which, if believed, must have a beneficial effect upon his client, and afterwards, saya had no intention of that sort at all, however much I may wish for it. It must be regarded as an endeavour to interfere with the due administration of justice. Where is the line to be drawn? It is highly important that the Court should not allow steps of this sort to be taken by the officers of the Court i canses in which they are engaged, which por sibly may have an effect favourable to their client, or unfavourable to the other side; and I may further say that if I am to go minutely into every sentence of a letter which is written in a public newspaper, to say this is question. able, and that is doubtful, and the like, it is imposing a task and a duty upon the Court which it would be impossible to perform. There is a distinct line to be drawn, which is this-that gentlemen who are concerned for contending clients in this Court, whether solicitors or counsel, should abstain entirely from discussing the merits of those questions in public print; if they do it at all, they ought to put their names to their communications to let the public suppose that it is merely by a person who takes a great interest in and has a great knowledge of the subject, and discusses it from a public point of view, when, if the fact were known, he is the solicitor of the defendant, and has the strongest possible interest in his success, is, in my opinion, hight reprehensible." The spirit of that judgment distinctly applies to the present case.or does this case stand alone. In the ca. of Tichborne v. Mostyn the publication of affidavits filed on behalf of the plaintif was held to be contempt of Court, Inf the present case I do not believe that any con- tempt of Court was intended, but 1 feel strongly on the point and am bound to take notice of it. I am not alone in my opinion, as before taking any action I consulted the Chief Justice, and I hope the views I am expressing with regard to the newspaper and the solicitor will have the effect of preventing such an ir- regularity again. On the second occasion the Court will have to take serious notice of the matter.
furnish copies to all persons, whether strangers or not, who choose to apply and pay a certain fee; on the contrary, it is his duty to ascertain that the applicants are either creditors or con- tributories of the company. There is nothing in the Act or in the rules which sanctions the publication of a petition of this kind any more than a bill in Chancery. It is said there was no intention to prejudice the parties by this publication; but it is a sound rule that you can only judge of men's intentions by their acts. In this case I cannot infer that the publishers of the newspaper printed those charges of fraudulent conduct against the directors of the company unknowingly and unwittingly. They may be true or false; but that is a question which will have to be decided on the evidence. If you once permit such a publication as this, any person may file a petition in the Court in order that it may be published in a newspaper, and thus it would become the vehicle of grievous injury to individual character. I cannot accede to any arguments urged in excuse for such & course. I may say that in this case not only are these pleadings published, but there is a note to this effect" The suit is a test case and is brought to try the right of the Sanitary Board to enter premises and pull down cocklofts without getting a Magistrate's order." Thus they practically take upon themselves the liberty of defining the issues in the matter. It is not for a public paper to do that. The principle laid down by Lord Hardwicke in Roach v. Hall (1) appears to me in every way applicable to the present case. It is in these words: 16
Nothing is more incumbent upon Courts of Justice than to preserve their pro ceedings from being misrepresented; nor is there anything of more pernicious consequence than to prejudice the minds of the public against persons concerned as parties in causes before the cause is finally heard." I wish to underline the word "finally." "It has always boon my opinion, as well as the opinion of those who have sat here before me, that such a proceeding ought to be discountenanced. The passage
was cited by Lord Hatherley, when Vice-Chancellor, in Tichborne v. Mostyn (2) and adopted by him as the rule of the Court. The case of Daw v. Eley (4) is scarcely applicable to the circumstances of the present case, although it illustrates the same principle. Now the general rule is here laid down. It is this: "It appears to me that whenever a newspaper, either on its own motion or at the instigation of others, publishes the proceedings in a cause before the hearing it tends to pre. judice the minds of the public. The present Mr Hastings-Certainly my Lord, case falls within the rule, and I must regard think that the publication of these pleadings is. the publication of this petition as a contempt contempt of Court. It was not intended to be of Court." That was as far as the newspaper so by myself or, I am sure, by the representa- was concerned. Now as regards the solicitor tive of the Daily Press; and for my part engaged in the matter. There can be no doubt logise sincerely to your Lordship if you that the solicitor naturally wished his client to that anything of the kind has occurre succeed, and in allowing these pleadings to go Lordship says, the representative c out of his office by handing them to the repre-asked to be allowed to publish the sentative of a newspaper he must have known and as they were public, doo they were intended for publication; and if he could have inspected them and had considered that the publication would 50 cents per have, had no beneficial effect upon kis olient he certainly would not have allowed it to be published. Again, there was no consent of the other party asked for, so that renders the publication practically an ex parte act. When a petition of this kind charges the defendants with wanton, and illegal conduct it is most irregular, and it is a contempt of Court for the were published; therefor solicitor in the case to engage in such a tran-were
were published. saction. Now then, there is a case, reported in His Lordshi Law Reporta, 7 Equity. There a solicitor con wrote, under an assumed name, a letter, which|| hay was published in a newspaper, taking part in a lished e I said just now I
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Mr. Hastings-My Lord, as regards what has fallen from your Lordship I would point out to your Lordship that these pleadings which have been published are public documents, its date:
His Lordship-The only thing, the Court can hear from you is an apology, I shall hear no explanation.!
ere was no harm:
Descons before
His Lordship-But not to publish them. Mr. Hastings-I thought and I may say I consulted letting the representativ both considered: there we him have the doo judicing the
nts: