TNAG-1694-FCO40-2344-Broadcasting-in-Hong-Kong-1987 — Page 71

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SEP 08 '87 14:48 HERBERT SMITH HK

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that any former member of the Security Service would be deterred by the threat of an injunction being granted in Hong Kong to prohibit publication when he can, like

Mr. Wright, publish in the United States and other parts of the world.

P.15

While it is accepted that the Attorney General has an arguable point of law with regard to the matters of confidence and breach of fiduciary duty, it does not appear to be a strong case. The arguments that found favour with the House of Lords do not, on the facts apply to Hong Kong. The judge, as I have said, had to carry out a balancing exercise. Although I am satisfied that he came to the right conclusion the sole reason that I find cogent and compelling to support his decision is upon the ground of futility which he did not find it necessary to consider. Therefore, despite the concession made by the defendants that there is an arguable case the restraint upon publication in my judgment amounts to a futile exercise when the book is in the public domain. I appreciate the concern of the Attorney General in safeguarding the interests of the Security

Service, but in the circumstances of this case and having regard to the facts applicable here the only realistic decision is to allow publication to take place. There is no longer any interest to protect in order to justify the granting of an injunction while there is no evidence to connect, the defendants directly with Mr. Wright On the question of futility alone I would, therefore, dismiss the appeal.

•

(.L. Jones) Judge of the High Court

Mr. Robert Ribeiro & Mr. Aarif Barma (Herbert Smith &co.

for Plaintiff

Mr. Anthony Lester Q.C. & Mr. Daniel Fung (Deacons) for all

4 defendants

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