TNAG-1694-FCO40-2344-Broadcasting-in-Hong-Kong-1987 — Page 61

SEP 08 87 14:41 HERBERT SMITH HK

21

The Defendants chose not to argue that the judge was in error in this respect and should have found futility.

T

י.

oh

३

,

!

In relation to the cause of action in breach of

confidence, I can see no material distinction between the

position before their Lordship's House and that before this

Court. To my mind the factual differences between the position in the United Kingdom and the position in Hong Kong are differences of degree and of scale, not differences of

kind. I am minded to think that there is the same divergence here between the levels of public knowledge before and after serialization. From the Defendants' own evidence the quantum of press coverage of this dispute and of the legal proceedings in Australia and U. R. was comparatively modest. It was stimulated by the South Ching Morning Post" itself on 22nd July, the very day on which it initiated its purchase of publishing rights. This bid and the desire to serialize are not consistent with the.

existence then of public knowledge as a whole. The British Security Service is Hong Kong's Security Service. No distinction can be drawn between its work in either location. There is no comparison between the position here and that in countries such as Australia which have their ova security service. Security service personnel no doubt, work hare and visit here. The effect on their morale and discipline of one of their former members being free to embarrass the service and their colleagues past and present for his own profit in this area of their work cannot be wholly dismissed. In my judgment, Lord Brandon's analysisapplies equally to this case.

1

"

I

In relation to breach of fiduciary duty, the Plaintiff'. position is different and stronger. Le

Lord Oliver called the distinction between The Guardian and The Observer on the one hand and The Sunday Times on the other a point of "critical importance"(18). The form were in no way directly linked with Mr. Wright and obtained all their

(18) Transcript p.38

་་

P.5