THE UNIVERSITY OF HONG KONG v. HONG KONG COMMERCIAL BROADCASTING CO LTD AND ANOTHER
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HCMP 2801/2015
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO 2801 OF 2015
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| BETWEEN | ||
| THE UNIVERSITY OF HONG KONG | Plaintiff | |
| and | ||
| (1) HONG KONG COMMERCIAL BROADCASTING CO LTD | 1st Defendant | |
| (2) THE PERSON OR PERSONS UNKNOWN who has or have appropriated, obtained and/or offered or intend to offer for sale and/or publication the confidential information in respect of the Relevant Meetings (as defined in Part A of Schedule 1 of the Amended Originating Summons) of the Council of the Plaintiff, excluding the information that is already in the public domain (as set out in Part B of Schedule 1 of the Amended Originating Summons) | 2nd Defendant |
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| Before: Hon G Lam J in Court |
| Date of Hearing: 23 May 2016 |
| Date of Decision: 8 July 2016 |
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D E C I S I O N
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Introduction
1. In this action the University of Hong Kong (“the University”) seeks declaratory and injunctive relief to preserve the confidentiality of the meetings of its Council (“the Council”). The Council is the supreme governing body of the University, with “all the powers and ... all the duties of the University other than those vested ... in some other authority of the University or in an officer” (s. 7(3) of the University of Hong Kong Ordinance (Cap. 1053)). Such other authorities of the University include the Senate, which is the organ entrusted with the power of regulation of all matters relating to education in the University, and the Convocation, which is essentially an advisory body.
Background
2. The events leading to these proceedings may be summarised as follows.[1] In around February 2014, the University set up a search committee to identify appropriate candidates for the position of Vice‑President & Pro Vice-Chancellor (Academic Staffing & Resources). On 26 November 2014, the newspaper Wen Wei Po revealed that Prof Johannes Chan, former Dean of the Faculty of Law of the University, had been recommended by the search committee for the post. Wen Wei Po questioned whether Prof Chan was a suitable candidate having regard to his alleged ties with a co‑founder of the Occupy Central campaign who was also a member of the Faculty of Law. There were further subsequent articles in Wen Wei Po and Ta Kung Po criticising Prof Chan, one of which, citing from a leaked University Grants Commission report, claimed that his academic record on research was not up to international standards when he was Dean of the law school. In February 2015, the newspapers Ming Pao and Apple Daily published articles suggesting that senior government officials had lobbied certain members of the Council not to appoint Prof Chan to the post.
3. The position of the University in these proceedings is that it has never announced the identity of the candidate recommended for the post. In keeping with its general media policy not to comment on any media report made in relation to purportedly leaked information from the University, it could not verify and has not verified the events referred to in these press reports.
4. On 30 June 2015, the agenda item “to receive a paper on the appointment of Vice-President & Pro Vice-Chancellor (Academic Staffing & Resources)” was first placed before the Council at its meeting. This matter had not been considered by the Council at any time before 30 June 2015. The Council resolved to postpone consideration of this item (“Appointment Issue”) until after the appointment of the new Provost. At the following Council’s meeting on 28 July 2015, it discussed the decision made at the meeting on 30 June 2015 and the possible alternative approaches to deal with the issue. The Council’s deliberations on the matter ceased when the meeting was adjourned due to disruption by non‑invited parties who entered the meeting room and refused to leave. Prof CM Lo, one of the members of the Council, fell down during the chaotic incident and suffered minor injury.
5. Meanwhile a concern group was set up by certain graduates of the University who conducted various activities, including convening an extraordinary general meeting of the Convocation of the University and initiating a petition, to urge the Council to make the appointment in accordance with the recommendation of the search committee.
6. At a meeting held on 25 August 2015, the Council resolved that it would consider the recommendation of the search committee for the post in September.
7. At the following meeting, held on 29 September 2015 (“29 September 2015 Meeting”), the paper of the search committee dated 15 June 2015 (and revised on 3 September 2015) was placed before the Council for the first time and received by the Council. Prior to this the Council had not received any document or formal notification regarding the identity of any candidate for appointment to the post.
8. The meeting, which also considered various other items concerning the financial affairs and the management of the University, started at 5 pm and lasted until approximately 7:30 pm. Discussions on the Appointment Issue lasted for about an hour in which more than 15 members expressed their views. In the end, the Council resolved by a majority vote (in secret ballot) not to accept the search committee’s recommendation for the post.
9. The Council itself did not make or authorise anyone to make any audio recording of this meeting (or indeed any other of its meetings). All attendees, including members of the Council, the registrar, legal advisers and University staff except for one person (Dr Steven Cannon) who was in charge of the security arrangements for the meeting, were requested to hand in their mobile phones which were then put in individual sealed envelopes.
10. Immediately after the 29 September 2015 Meeting, the Chairman said at a news conference that the decision was based on “the best and long term interests of the University” but did not elaborate on the details of the discussions that had taken place at the Meeting.
11. In that same evening, very soon afterwards, a member of the Council, Mr Billy Fung, held a press conference during which he attempted to summarise some of the discussions on the Appointment Issue and disclosed certain statements said to have been made by specified members of the Council during the meeting against Prof Chan, as follows:
(1) Prof Arthur Li queried Prof Chan’s credentials for not including a doctorate degree and suggested that the only reason why he had previously been appointed as the Dean of the Faculty of Law of the University was that he was a “nice guy”.
(2) Ms Leonie Ki, Ms Margaret Leong and Mr Benjamin Hung questioned Prof Chan’s integrity and criticised him for having disclosed publicly that he was the sole recommended candidate before the Council had made a decision on the Appointment Issue.
(3) Prof Edward Chen also queried Prof Chan’s qualifications for not including a doctorate degree, and stated that he had rarely published articles in academic journals, and questioned his qualifications in comparison to the other Vice‑Presidents and Pro Vice‑Chancellors of the University.
(4) Prof CM Lo stated that Prof Chan was academically not up to the requisite standard and that his research achievements would compare unfavourably with those of an assistant professor. He also criticized Prof Chan for not showing sympathy towards him after he suffered injury on 28 July 2015.
(5) Mr Martin Liao said that he had made a search on “Google Scholar” and found that there were only four searches made on Prof Chan’s works in the past five years.
(6) Dr Rosanna Wong opined that the appointment of Prof Chan would only further divide the University.
12. On 30 September 2015, the Chairman of the Council issued a statement condemning Mr Fung’s action as a serious breach of the confidentiality of the discussions of the Council. The alleged breach of confidentiality by Mr Fung was tabled for consideration by the Council at its meeting on 27 October 2015. In the event, that item was adjourned in order to provide additional time for Mr Fung to respond.
13. It transpired that an audio recording of at least part of the 29 September 2015 Meeting had been made by an unidentified person (“the Unknown Person”) without the knowledge or consent of any other person present or the authority of the University. On 28 October 2015, an audio recording of part of the 29 September 2015 Meeting, featuring the speech of a Council member, Prof Arthur Li, concerning the Appointment Issue was broadcasted on one of the radio channels operated by the 1st defendant (viz Commercial Radio I). The recording was also accessible on the 1st defendant’s website at www.881903.com. A transcript of the recording was published on the Facebook page of the programme.
14. Following this broadcast, solicitors who acted for the University wrote urgently to the 1st defendant asking for an undertaking to remove all audio recording of the 29 September 2015 Meeting from its website and to refrain from making any further disclosure of any audio recording of meetings of the Council.
15. Notwithstanding the solicitors’ letter, on 30 October 2015, the 1st defendant broadcasted in the same programme another audio recording of part of the 29 September 2015 Meeting on the Appointment Issue, featuring the speech of a second Council member, Ms Leonie Ki. The recording and a transcript of it also became accessible on the 1st defendant’s website and its Facebook page.
16. In the afternoon of the same day, the University applied ex parte to the Court of First Instance for and obtained from Deputy Judge Seagroatt an interim injunction against further disclosure. The originating summons formally commencing the action was also issued.
17. On 5 November 2015, by consent between the University and the 1st defendant, I discharged the injunction and gave leave for the action to be discontinued as against the 1st defendant upon certain undertakings given by the 1st defendant which broadly reflected the terms of the injunction. The action has thereafter continued solely as against the 2nd defendants.
18. On 6 November 2015, the first return date of the injunction, with very short notice, five parties appeared in court asking to intervene or be joined as defendants (as the case may be) and opposing the continuation of the injunction on various grounds. To give the University a proper opportunity of response, the hearing was adjourned. The injunction was continued in the meantime but its scope was curtailed, inter alia, by being limited to Council meetings held from 30 June to 30 October 2015. The definition of the 2nd defendants was amended and narrowed down.[2] Confidentiality orders relating to the papers of these proceedings were removed. The public domain exception was revised.
19. The term of office of the then Chairman of the Council expired on 6 November 2015. The chair was not filled until the beginning of 2016.
20. On 8 November 2015, an audio recording of what was said at the 29 September 2015 Meeting by another Council member, namely, Dr Rosanna Wong, and a response by the Vice‑Chancellor, Prof Peter Mathieson, became accessible together with a transcript in an online discussion forum based in Taiwan. A related article appeared in Hong Kong on Apple Daily the next day.
21. In the evening of 25 November 2015, after the hearing of the interlocutory application on 24 November 2015 before me, further audio recordings and a transcript apparently of what was said at the 29 September 2015 Meeting (featuring speeches of four Council members, namely, Prof CM Lo, Dr Peter Wong, Mr Martin Liao and Prof Peter Mathieson) became accessible at another Taiwan online discussion forum. On the same night and on the following day, the Hong Kong media reported on this disclosure and published the recording and the transcript.
22. In the evening of 26 November 2015, an audio recording and the transcript of the part of the Council meeting held on 25 August 2015, containing discussions about what happened at the previous Council meeting on 28 July 2015, were published on the same Taiwan online discussion forum. On the same night and on the following day, the Hong Kong media reported and published the recording and the transcript.
23. On 30 November 2015, I handed down my decision continuing the interlocutory injunction until trial and refusing to join the opposing persons as parties or interveners, though leave was given for the Hong Kong Journalists Association to make submissions at trial. I shall refer to it as my “interlocutory decision”.
24. It appears that the unauthorised and clandestine recording of the proceedings of Council meetings did not cease after the 29 September 2015 Meeting or the commencement of this action. On 30 December 2015, Apple Daily further published an audio recording of part of the meetings of the Council held on 12 November 2015 and 24 November 2015 respectively, featuring statements by Prof Arthur Li, and a transcript of the recordings.
25. At the trial of the action, the affidavits filed were taken as read. No oral evidence was given. No one within the description of the 2nd defendants appeared. The University, and the Hong Kong Journalists Association which is not a party but was permitted to take part in the trial by making submissions, appeared before me by counsel.
The University’s Claims and the Parties
26. By the re-amended originating summons (issued on 30 October 2015, amended on 10 November 2015 and re-amended on 2 December 2015), the University claims legal relief against the 2nd defendants whose names are not known and who are described as follows:
“THE PERSON OR PERSONS UNKNOWN who has or have appropriated, obtained and/or offered or intend to offer for sale and/or publication the confidential information in respect of the Relevant Meetings [defined to mean meetings held from 30 June to 30 October 2015] of the Council of the plaintiff, excluding the information that is already in the public domain (as set out in Part B of Schedule 1 of this Amended Originating Summons).”
27. Part B of Schedule 1 to the Amended Originating Summons sets out the information that has gone into the public domain including the audio recordings of the Relevant Meetings (or any part thereof) published on 28 and 30 October 2015 by the 1st defendant and the information published by Mr Billy Fung on the 29 September 2015 Meeting.
28. The relief claimed by the University includes:
(1) a declaration that the defendants are acting in breach of their duty of confidence in so far as they are using, publishing or communicating or disclosing the Information without the University’s consent or authorisation, where “Information” refers to:
(a) any audio recording of the Relevant Meetings of the Council; and
(b) any agenda, supporting papers and minutes of the Relevant Meetings of the Council; and
(c) any papers of the Council produced in relation to the Relevant Meetings.
(2) an injunction restraining the defendants by themselves, their directors, officers, employees or agents, or in any other way, from “using, publishing or communicating or disclosing to any other person all or any part of the Information”.[3]
29. The Relevant Meetings include meetings of the Council held on 30 June, 28 July, 25 August, 29 September and 27 October 2015 respectively. The agendas, in part redacted, have been placed before me and show that during these meetings there would have been discussions of a wide range of matters concerning the University in addition to the Appointment Issue, including but not limited to issues and reports relating to donations and grants received, the finances of the HKU-Shenzhen Hospital project, the Gleneagles Hong Kong Hospital project, fees for specified self-funded programmes, pay adjustment for staff, honours and other personalia, establishment of endowed professorships, and recommendations of the Audit Committee. Further, at all these meetings the University’s legal advisers had provided legal advice. It seems to me clear that the materials in question, including in particular any audio recording of these meetings of the Council, are confidential to the University.
30. It is clear from the submissions made to me that the University does not seek any relief in relation to information that is by now already in the public domain.
The University’s Cause of Action
31. I start with the University’s right to confidentiality. The basic proposition, as stated by Lord Greene MR in Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203, 213, is:
“If a defendant is proved to have used confidential information, directly or indirectly obtained from a plaintiff, without the consent, express or implied, of the plaintiff, he will be guilty of an infringement of the plaintiff’s rights”.
Although Mr Erik Shum and, with him, Ms Linda Wong, who appeared on behalf of the Hong Kong Journalists Association, took Art 16 of the Hong Kong Bill of Rights as their starting point, I do not think there is a difference in substance: Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 283E-284A. Duties of confidence are a recognised limitation on the right to freedom of expression. Art 16(3) expressly refers to the need for respect of the rights of others, which seem to me clearly to include rights to confidence. “It is a factor that ... is, of itself, capable of justifying restrictions on freedom of expression”: Prince of Wales v Associated Newspapers Ltd [2008] Ch 57, §66. In England, it has been said that except in the area of privacy, the incorporation of the European Convention on Human Rights by the Human Rights Act 1998 has not led to a change of substance in the approach of the courts to issues of confidentiality and public interest: Toulson & Phipps, Confidentiality (3rd ed), §6-049.
32. As the authorities of Lion Laboratories Ltd v Evans [1985] 1 QB 526, 550G; British Steel Corporation v Granada Television Ltd [1981] AC 1096, 1202E; and Prince of Wales v Associated Newspapers Ltd, supra, at §67 show, the relevant passages from which were cited in paragraph 71 of my interlocutory decision, while the right to confidence is a private law right, there is a strong general public interest in upholding the duty of confidence. What Art 16 does mean, however, is that any restriction of the freedom of expression, such as by the imposition of injunction, has to be justified as being no more than necessary.
33. The recognition by the law of confidentiality in the context of meetings of the Council generally serves to protect the organisational and commercial secrets of the University, the privilege attaching to legal advice and the confidentiality of other professional advice received by the University, the reputation and privacy of individuals who are the subject of discussions, as well as the integrity of the decision-making structure and process adopted by the University, which operates on the twin principles of confidentiality and collective responsibility. The absence of protection of confidentiality would, it is feared, create a “chilling effect” on free expression within the Council, and deter persons from serving as its members in future.
34. I have explained in paragraphs 39 to 49 of my interlocutory decision why the relevant information in the present case is prima facie covered by the duty of confidentiality. The duty arises from the provisions of the Guide and Code of Practice for Members of the Council, the express notice of confidentiality given to those involved in the business of the Council and their explicit or implicit acceptance (including by signed written undertakings) of such confidentiality, and the surreptitious way in which audio recordings were made of the proceedings. The evidence at trial has in my view confirmed that position.
35. At the hearing Mr Shum made a new point not mentioned in his skeleton argument. He suggested that what is in issue in this case is “public sector confidentiality”. He referred to authorities such as Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39, 51-52 which lay down the principle that where the government seeks the court’s protection of confidentiality of its information, it is incumbent upon the government first to establish, as part of its cause of action, that further publication of the information would be detrimental to the public interest. I decline to deal with this point which has been raised in a most unsatisfactory manner. It had not been taken by any of the numerous counsel who appeared at the interlocutory stage. The University did not have a fair opportunity to respond to it. At any rate, as at present advised, it seems to me far from obvious that the University, in dealing with the matters canvassed at the meetings of its Council including the Appointment Issue, should be treated as carrying out governmental functions and therefore as equivalent to the government when it claims protection of confidentiality.
36. Prima facie, also, the University is in my opinion entitled to assert confidentiality over the information in question as against persons comprised within the definition of the 2nd defendants. As explained in §54 below, the 2nd defendants are in essence the persons who, as at date of issue of the originating summons (30 October 2015),[4] have obtained possession of the information and include, first and foremost, the Unknown Person who surreptitiously recorded the proceedings of the Relevant Meetings of the Council, though the description may also extend to any person to whom he had passed that information as at 30 October 2015. The Unknown Person, even if he or she was not a member of the Council or University’s staff, would plainly have come under a duty of confidence, for “the conduct of a person who obtains confidential information improperly is as reprehensible to the conscience as that of a person who violates the confidence in which he received it”: Toulson & Phipps, Confidentiality (3rd ed), §2-049, and also §3-044 & §3-077. Based on the principles stated in §40 of my interlocutory decision, any person to whom he had passed the information would likewise probably be subject to a duty of confidence because of notice of the nature of the information and circumstances surrounding its receipt.
The Potential Defences
37. In the absence of the 2nd defendants, Mr Shum has helpfully canvassed the possible defences that could potentially be raised on behalf of the 2nd defendants including, in particular, lack of quality of confidence, public interest, and that most of the information is already in the public domain.
38. Mr Shum referred to the “Seven Principles of Public Life” mentioned in the Guide and Code of Practice for Members of the Council, including the principles of openness and accountability, in support of his submission that the information question lacks the necessary quality of confidence. As I explained in paragraph 84 of my interlocutory decision, however, the conduct of the meetings of the Council is an internal matter for the Council itself. The Council regulates its own procedure. The Code and the evidence show that its meetings have been conducted on the basis of confidentiality and collective responsibility. In my view, the information in question has as a class the requisite quality of confidence about it.
39. In paragraphs 50 to 53 of my interlocutory decision I have referred to the so-called “public interest defence”. There are different views as to the precise juridical basis of the “defence” and as to whether it is an issue that defines the scope of the obligation at its inception rather than operates as a defence as such, but it is unnecessary to go into these questions. Having reviewed the authorities again I would state the principles by which I propose to be guided in the determination of this action as follows:
(1) There is a constitutionally guaranteed freedom of expression (Art 16 of the Bill of Rights; Art 27 of the Basic Law), but the freedom is not absolute. It is qualified by, inter alia, the need to respect the right of others to confidentiality. There is a public interest that confidences should be preserved and protected by the law, but that public interest may in turn be outweighed by some other countervailing public interest which favours disclosure: Attorney General v Guardian Newspapers Ltd (No 2), supra, 282E.
(2) The test is not whether the matters disclosed would interest the public or be of interest to the public or even “newsworthy”, but whether it is in the public interest that disclosure should be made and the confidence breached: Prince of Wales v Associated Newspapers Ltd, supra, §68; Jameel (Mohammed) v Wall Street Journal Europe Sprl [2007] 1 AC 359, §147.[5]
(3) Nor is the test merely whether it is in the particular judge’s view desirable for the information to be made public. The disclosure, to the proposed extent, in the proposed manner and to the proposed recipient, must be shown to be requiredin the public interest.
(4) Where there is justification to disclose, the disclosure should be to one who has a proper interest to receive the information: Initial Services v Putterill [1968] 1 QB 396, 405G; Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 74 ALR 428, 450[6]; Attorney General v Guardian Newspapers Ltd (No 2), supra, at p 282H. Self help is generally greeted by the law with circumspection. As the High Court of New Zealand stated in Solicitor-General v Alice [2007] NZHC 48 at §§63 & 64:
“... where there are available legal remedies to be pursued there can as a rule be no room for either whistle‑blowing or indeed any other remedy or self help. That principle is a simple application of the rule of law: that disputes are to be resolved within the law by the courts and tribunals established to do justice. ... [S]elf help is the very antithesis of the rule of law.”
(5) The defence has to be kept within limits, lest it becomes “... not so much a rule of law as an invitation to judicial idiosyncracy by deciding each case on an ad hoc basis as to whether, on the facts overall, it is better to respect or to override the obligation of confidence”: Smith Kline and French Laboratories (Australia) Ltd v Department of Community Services and Health [1990] FSR 617, 663 per Gummon J, a risk recognised also by the English Court of Appeal in R v Department of Health ex p Source Informatics Ltd [2001] QB 424 at §52.
(6) It is well established that there is no confidence in iniquity: Gartside v Outram (1856) 26 LJ Ch 113, 114, but the University has not so contended and, as at present advised, I am not prepared to limit the public interest defence to situations involving “the existence of an iniquity in the sense of a crime, a civil wrong or serious misdeed of public importance”: cf. Corrs Pavey Whiting & Byrne v Collector of Customs, supra, at p 450 per Gummow J. The defence may well extend to disclosure of activities that are “seriously contrary to the public interest”: Francome v Mirror Group Newspapers Ltd [1984] 1 WLR 892, 895‑896) or disclosure necessary to prevent a “serious risk of public harm”: Toulson & Phipps, Confidentiality (3rd ed) §6-058; London Regional Transport v Mayor of London [2003] EMLR 4 at §36. I doubt if these categories can be regarded as closed. The freedom of speech and the associated right of the public to receive information are in this kind of case always a central consideration.
(7) In such cases whether disclosure should be permitted may depend on the nature of the confidential information, the degree of confidentiality, the seriousness and probability of harm to public as well as the extent to which disclosure would redress that harm. On the other hand, it is not only necessary to take into account the prejudice that would be caused to the plaintiff and other specific parties by the disclosure of the information in the particular case, but also the risk of harm generally resulting from the confidentiality being undermined by disclosure. An example is given in Toulson & Phipps, supra,at§6-075: if the law too readily permits a doctor to disclose information about a patient, it may impair a patient’s willingness to confide in the doctor and receive treatment.
(8) It is in my view not always sufficient merely to show that the confidential information if published would contribute to a debate of general interest. Where the information is impressed with a duty of confidence, as the English Court of Appeal stated in Prince of Wales v Associated Newspapers Ltd [2008] Ch 57, §67, it is “not enough to justify publication that the information in question is a matter of public interest”. In that case, both the English High Court and the Court of Appeal held that publication of the Prince of Wales’s journal of his travels in Hong Kong, leaked by an employee in breach of confidence, was not justified, notwithstanding that it contained information which would, inter alia, enable the public to assess the political conduct of the heir to the throne.
(9) Absent some specific public need for disclosure, to say that disclosure of confidential information by a person subject to a private law duty of confidence is necessarily justified simply because there is a public interest in having the matter discussed or debated by the public seems to me to be too wide as a general proposition.
40. In connection with (8) and (9) above Mr Shum has referred to ETK v News Group Newspapers Ltd [2011] EWCA Civ 439 §23 where contribution to a debate of general interest was mentioned as the “decisive factor”. But that case did not concern a duty of confidence. It was about balancing an expectation of privacy under Art 8 of the European Convention on Human Rights and the freedom of expression under Art 10 in deciding whether an injunction should be granted to restrain publication of an affair between the applicant and a female colleague of his, applying what Lord Steyn had called the “ultimate balancing test” in In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 at §17. The English Court of Appeal stated that a decisive factor was what contribution the published information would make to a debate of general interest, and granted an injunction to restrain publication in that case because it concluded that publication of the affair would only satisfy public prurience. As Mr Shum recognised, privacy under Art 14 of the Hong Kong Bill of Rights is not involved in the present case. The issues raised by privacy cases require a somewhat different analysis: see Gurry on Breach of Confidence (2nd ed), §§16.03 & 16.58-16.60
41. Likewise, the case of Von Hannover v Germany (2005) 40 EHRR 1, referred to in ETK v News Group Newspapers Ltd, supra, at §10(5), did not concern information covered by any duty of confidence. It was a case about publication of photographs taken of Princess Caroline of Monaco in public places. Balancing her right to respect for her private and family life under Art 8 (which is itself expressly subject to interference necessary for the protection of the freedoms of others: see Art 8(2)) against the freedom of expression guaranteed by Art 10, the European Court of Human Rights said that in such cases the court has always stressed the contribution that would be made by the publication of the material in question to a debate of general interest (§60) and that the decisive factor in the balance lies in such contribution (§76). It seems to me that to transpose this analysis to information covered by a duty of confidence risks undermining the concept of a private law right to confidentiality altogether. It would lead to the position that once a subject matter enters into the realm of public consciousness and discourse, all private law rights and duties of confidence attached to related information will evaporate. I do not consider that to be the effect of our law.
42. London Regional Transport v Mayor of London [2003] EMLR 88, also relied upon by Mr Shum, was in contrast a case concerning information affected by a duty of confidence. There was a proposal for the track maintenance functions of London Underground to be undertaken by private-sector companies. This complex and controversial public-private partnership (PPP) initiative was, however, by government policy subject to a condition that concerned value for money. The preferred private bidders for some of the underground lines had recently been announced and were shortly to be announced for other lines. The Commissioner of Transport for London had commissioned Deloittes, who prepared a report that was highly critical of the assessment of value for money of the PPP. The Commissioner considered the PPP project not feasible and wrote to the Prime Minister accordingly, and was duly removed from office. The Mayor of London, who was also very critical of the PPP plan for the underground and had published a transport strategy to that effect, proposed to publish the Deloittes report. London Underground, relying on certain confidentiality agreements on the basis of which information had been made available for the production of the report, sought an injunction to restrain its publication. In these circumstances it is not surprising, if I may respectfully say so, that both Sullivan J and the English Court of Appeal found that it was overwhelmingly in the public interest that the report be disclosed. Even so, it may be noted that in that case the court required confidential commercial information to be redacted before publication of the report, and furthermore distinguished the case as being “quite different from those cases where ‘moles’ try to publish leaked documents”, on the ground that what was being proposed was to publish Deloittes’ own report (which was prepared for the defendants), not to leak London Underground’s documents (see p 104). This stood in stark contrast to the University’s action in the present case to restrain, among others, the Unknown Person from disclosing the recordings of Council meetings that he surreptitiously made.
43. Initial Services v Putterill, supra, at p 406E suggests it is arguable that if the public have been told falsehoods in a serious matter of public concern, disclosure of that fact may be justified in the public interest;[7] see also Woodward v Hutchins [1977] 1 WLR 760; c.f.British Steel Corporation v Granada Television Ltd, supra, at 461. But in the present case all that the former Chairman of the Council said was that the decision was made in the best and long-term interests of the University. The materials before me do not, in my opinion, provide a fair basis for concluding that any member of the Council did not in fact vote with a view to furthering what he or she believed to be the University’s interests.
44. Was it justification for disclosure that the Council did not publish any reasons for its decision other than the short and general explanation given by the former Chairman immediately after the 29 September 2015 Meeting? There is a need to tread carefully here given the implications of such a potentially wide proposition. It seems to me that if the decision lies within the province of public law, a duty to give reasons, if it exists, can and should be enforced in public law. If reasons are properly required in such a case, that should be reflected in the existence of a public law duty rather than a freedom on the part of the people involved and eavesdroppers to breach confidence. If, on the other hand, the decision is not one that sounds in public law or one that gives rise to a duty to give reasons, then it seems to me the absence of reasons cannot in itself provide justification for disclosure in breach of confidence. Otherwise confidential relationships would be overridden merely because the information would be “of interest” to the public or sections of it, and the duty of confidence would be completely undermined in any such case even if it cannot be shown that there is any other public interest requiring disclosure.
45. Mr Shum submitted that there is a public interest involved because the information in question, if disclosed, could contribute to an important debate about improper interference by the Chief Executive of the Hong Kong SAR in the Appointment Issue. For present purposes, Mr Clifford Smith SC, who appeared for the University, did not debate whether or not such interference, if it did occur, would be improper. Assuming such interference would involve misconduct, it is to be recalled that these proceedings are not about any recording of any conversation between the Chief Executive and members of the Council. The University is not seeking to restrain publication of any communication in which the Chief Executive or government officials played any part. It seeks only to prevent proceedings of its Council from being divulged. None of the recordings already disclosed shows, either expressly or by implication, any such interference. There is in my opinion no evidential basis to suppose that refusing relief to the University in this action would enable such interference to be disclosed.
46. Further, the action is now concerned with the information that has not yet gone into the public domain. As explained in paragraph 86 of my interlocutory decision, on the evidence, given the audio recordings that have already been made public in one way or another, the prospect that further disclosure would inform the public of political interference of the kind mentioned by Mr Shum is in my view remote. It is difficult to see how disclosure of the materials in question would bring to light some serious misconduct, misdeed or anti-social conduct in the sense referred to above.
47. Obligations of confidence apply only to information that is confidential. Put another way, if information protected by a duty of confidence ceases to be confidential, then in general the duty also ceases to bind the confidant: Mustad & Son v Dosen [1964] 1 WLR 109 (Note). In this connection Mr Shum made the point that given the revelations made by Mr Billy Fung and the audio recordings already published, any confidentiality in the information relating to the Appointment Issue at the 29 September 2015 Meeting had been destroyed to a substantial degree. I am unable to accept this submission. It is true that certain speeches at the meeting have already been published wholesale but it appears that there are substantial parts of the meeting and speeches of Council members which have not been published at all. As mentioned above the evidence is that the discussion lasted for about an hour. I do not think that the confidentiality over the whole discussion of the Appointment Issue was lost because of the disclosures that have already been made.
48. Mr Shum also submitted that maintaining confidentiality in the Appointment Issue was not in the best interest of the University. This, I am abound to say, is not a matter for the court in this action; it is a matter for the University. If, as a matter of private law, the University as the entity possessed of the cause of action for breach of confidence seeks its enforcement, it is not for the court to second-guess the desirability of the action and deny relief simply on the ground that the judge hearing the case considers that maintaining confidentiality is not in the University’s interests. As far as this court is aware, these proceedings were commenced, and have been pursued, with the authority of the Council even as its composition had changed.
49. Finally, it will be noted that the various potential defences that have been mentioned by Mr Shum were raised only in relation to what was said on the Appointment Issue at the 29 September 2015 Meeting. Mr Shum has not pointed to any defence that is relevant to information concerning other Council meetings or other items of discussion at the 29 September 2015 Meeting; nor is it easy to see what public interest there could be in having such confidential information disclosed. For the reasons discussed above, I do not think the potential defences canvassed avail the 2nd defendants.
Relief
50. A final injunction may be granted as relief in an action for breach of confidence. In Lord Ashburton v Pape [1913] 2 Ch 469, 475, Swinfen Eady LJ said:
“The principle upon which the Court of Chancery has acted for many years has been to restrain the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged.”
51. While he recognised that the injunction sought by the University is not, in form, an order against the world, or an injunction contra mundum, which is exceptional: Venables v News Group Newspaper Ltd [2001] Fam 430, §§98-100, Mr Shum submitted that the effect of the injunction asked for is no less draconian and should therefore be rejected. He said that, for example, if a newspaper in breach of the injunction published the information in question, then any reader of that newspaper who tried to communicate the news to others would also be caught by the injunction. In addition, a courier engaged by a defendant to deliver the hard copies of the audio recordings to another person for publication might find himself caught by the injunction.
52. I do not think the injunction would have these effects. The injunction is sought as against the “person or persons unknown who has or have appropriated, obtained and/or offered or intend to offer for sale and/or publication the confidential information”. It was formerly unclear whether a writ of summons could be issued against a defendant without naming him. It is now established that this can be done, provided that the description is sufficiently certain so as to identify both those who are included and those who are not: Bloomsbury Publishing Group plc v News Group Newspapers Ltd [2003] 1 WLR 1633 at §21; Billion Star Development Ltd v Wong Tak Chuen [2013] 2 HKLRD 714 (CA) at §§70‑75. In particular, an action for breach of confidence may be brought, and an injunction granted, against a defendant who is identified by description and not by name where the circumstances so warrant: Bloomsbury Publishing Group plc v News Group Newspapers Ltd, supra; X & Y v Persons Unknown [2006] EWHC 2783 (QB). Such an injunction is sometimes called a “John Doe injunction”.
53. This facility is designed however only to alleviate the need to name the defendant where it is impossible to do so. It does not obviate the need for there to be a real defendant in existence at the time when the action is commenced (which was the rationale of the Canadian cases of Jackson v Bubela [1972] 5 WWR 80 and Golden Eagle Liberia Ltd v International Organisation of Masters, Mates and Pilots, Marine Division, International Longshoremen’s Association [1974] 5 WWR 49 cited by Sir Andrew Morritt VC in Bloomsbury Publishing Group plc v News Group Newspapers Ltd). Nor does this device, in my view, give rise to an action with an “ambulatory” scope so that the number and identity of actual defendants will vary from time to time without an amendment of the writ.
54. The form of wording used by the University was adapted from the Model Order annexed to the (English) Practice Guidance issued by the Master of the Rolls on interim non-disclosure orders. It seems to me the phrase “who has or have appropriated, obtained and/or offered or intend to offer for sale and/or publication” therein refers to the person or persons who satisfy that condition as at the date of the originating process. It does not and, as a matter of principle, cannot encompass a person such as the reader of a newspaper or the courier in the examples postulated by Mr Shum.
55. A person who is neither a defendant to the action nor a party against whom the injunction is directly issued may nevertheless be affected by an order of which he knows, for it is a contempt of court for a non-party to assist a breach of an injunction of which he has notice: X & Y v Persons Unknown, supra, at §4; Z v A-Z [1982] QB 558. Thus a person who has notice of the injunction herein may find himself liable for contempt if he receives a relevant unpublished recording from the Unknown Person and proceeds to publish it. In Mr Shum’s examples, however, neither the reader nor the courier would be affected by the injunction: the reader, because he would not be assisting in a breach of the injunction by passing the information to a friend; and the courier, because he would not have any knowledge that he was delivering goods in breach of a court order.
56. To clarify the position further Mr Smith SC offered to limit the defendants against whom the injunction is to be granted to “THE PERSON OR PERSONS UNKNOWN who has or have appropriated and/or obtained and[8] offered or intend to offer for sale and/or publication ...”. I accept this adjustment as appropriate which will have the effect of confining the direct target of the injunction to defendants who had actually obtained possession of the information as at the date of the originating summons.
57. As stated above, the injunction, whilst directed to the 2nd defendants, will have an indirect effect upon the media through liability for assistance of a breach of injunction with notice. It has the character of a prior restraint and as such I have given it the most anxious scrutiny: The Observer and The Guardian v United Kingdom (1991) 14 EHRR 153, 191. But as the Court of Appeal said in Prince of Wales v Associated Newspapers Ltd, supra, at §67, a significant element to be weighed in the balance is the importance of upholding duties of confidence that are created between individuals. A right of confidence is inherently a fetter on free speech. For the reasons given above in relation to the nature and quality of the information involved, I consider that a final injunction is proportionate and necessary in this case for the protection of the University’s right to confidentiality.
58. There will therefore be an injunction to restrain the relevant persons from using, publishing or communicating or disclosing to any other person all or any part of the Information, subject to a proviso in favour of information now in the public domain along the lines set out in paragraph 11 of my interlocutory decision.
59. The University also seeks a declaration that the 2nd defendants are acting in breach of their duty of confidence in so far as they are using, publishing, communicating or disclosing the Information without the University’s consent. Declaration is a discretionary remedy. The 2nd defendants have not appeared in these proceedings to contest them. The individual facts relating to these defendants are not clear. The declaration sought is framed in the hypothetical, relevant only “in so far as” certain acts are being done. In my opinion such a declaration is artificial and serves no real purpose in the circumstances of this case and in the exercise of my discretion I decline to grant it.
Disposition and Costs
60. For the above reasons, there will be judgment on the originating summons in favour of the University in the form of the injunction referred to above.
61. On a nisi basis, I order the 2nd defendants to pay the University the costs of the action. As for the Hong Kong Journalists Association, while they have been allowed to make submissions they have not done so as a party and it seems to me the fair result, again on a nisi basis, would be that there is no order as to costs.
| (Godfrey Lam) | |
| Judge of the Court of First Instance | |
| High Court |
Mr Clifford Smith SC and Mr Martin Kok, instructed by Clifford Chance, for the plaintiff
Mr Erik Shum and Ms Linda Wong, instructed by L & L Lawyers, for the Hong Kong Journalists Association
[1] A substantial part of this section is adapted from my decision in the University’s application for an interlocutory injunction dated 30 November 2015 in these proceedings, now reported in [2016] 1 HKLRD 536.
[2] formally implemented by amendment of the originating summons on 10 November 2015.
[3] Initially an injunction was also sought and granted ex parte to restrain the defendants from “publishing any information which is liable to or might identify any member of the Plaintiff (including staff, students, advisors and members of the Council) as the subject of the Information or which otherwise contains material which is liable to, or might lead to, the identification of any member of the Plaintiff in any such respect”, but this was not continued on the first return date of 6 November 2015 and is no longer relevant in the action.
[4] The amendment and re-amendment date back to the issue of the originating summons.
[5]Jameel is a case on the defence of responsible journalism to an action for libel but it seems to me that the point made by Lord Scott that there must be a real public interest in communicating and receiving the information, which is different from saying the information will interest the public or is newsworthy, is nevertheless applicable in the present context.
[6]per Gummow J, dissenting in the result
[7] though the matter in that case concerned a price-fixing agreement that was arguably against public policy.
[8] as opposed to the original phrase “and/or”