Cliff Buddle/JMSC/2013
Assignment
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Select one of the two assigned cases
Spiller v Joseph (UK, 2010)
Yaqoob v Asia Times Online (HK, 2008)
Read carefully
Prepare a summary of the case
1250-1500 words
Deadline: February 25
Electronic copy AND hard copy in class
Outline and example of a brief to be found on the
website – take a look!
The importance of cases
 Especially important in common law jurisdictions
 Binding precedents established by the courts
 Applying principles established in earlier cases to the
facts of the case before them
 Ratio Decidendi, Obiter Dicta
 Who decides what precedent has been set?
 Do judges make law?
Reading a case
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Style differs from judge to judge
But tend to follow a similar structure
What is the history of the case?
What are the facts?
What are the legal issues to be decided?
How are legal authorities used?
How is legislation interpreted?
What decision did the court make (who won?)
How did it arrive at that decision (reasoning)
If more than one judge, did they agree or disagree?
The use of precedent
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Donoghue v Stevenson 1932
Ginger beer with a decomposing snail in it
Was the manufacturer liable (no contract)
Laid down foundational principle for law of negligence
Expansion of duty of care
Then, Grant v Australian Knitting Mills, 1936
Grant buys two pairs of long johns (underpants)
Excess of sulphites in them causes him severe skin
condition
 Can the precedent set in Donoghue v Stevenson
(concerning a snail in ginger beer) be used to find the
manufacturer of the underpants liable?
Statutory interpretation
 Mothers from mainland China giving birth in Hong Kong
 Do their children have the right of abode in HK?
 Article 24 Basic Law
 The permanent residents of the Hong Kong Special
Administrative Region shall be: ( 1 )
Chinese citizens
born in Hong Kong before or after the establishment of the
Hong Kong Special Administrative Region
 Does this include or exclude the children of visitors to
Hong Kong?
 How is this to be decided?
Briefing a case
 Carefully summarise…
 Facts
 Issues
 Rules
 Reasoning
 Individual cases illustrate legal concepts
 Thinking behind those concepts
 Case brief distills the essence of the case
Elements of a brief
 Title and Citation
 Facts
 Procedural History
 Issues
 Reasoning
 Rule
 Holding
Title and Citation
 Name of the case
 –Wong Yeung Ng v. Secretary for Justice
 Citation(s)
 –[1999] HKCA 382
 –[1999] 2 HKLRD 293
 –CACV161 / 1998
Facts of the case
 Key events leading to the lawsuit
 –1997: Oriental Press Group dissatisfied with
indecency ruling by Obscene Articles Tribunal and
outcome in unrelated copyright case against Apple
Daily
 –Oriental Daily News, under chief editor Wong Yeung
Ng, published a number of articles vilifying the judges
involved and making threats against them
 –Oriental also sent paparazzi out to follow judge
Procedural History
 Who filed the suit and how has it proceeded through
the courts?
 –This case is in the Court of Appeal
 –At the trial court, Wong Yeung Ng was convicted on
two counts (charges) of contempt of court and
sentenced to four months’ imprisonment
 –Oriental Press Group also convicted and fined but is
not appealing
Issues
 What legal question(s) will the current court decide?
 “At issue…”, “…whether…”
 –In this case, in order to establish contempt of court
(scandalising the judiciary), whether it is sufficient to
find a “real risk” of undermining the due
administration of justice
 Or whether a more stringent test of “real, substantial
and imminent danger” is applicable
Other issues
 Is it necessary for actions targeting Justice Godfrey to
have influenced him in order to undermine public
confidence in the administration of justice?
 Did Wong’s four-month sentence constitute excessive
punishment?
Reasoning
 What did the court decide and why?
 –Defining “necessary” exemptions to freedom of expression
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depends on the nature of the contempt
–“Real risk” test sufficient because Hong Kong is part of
Commonwealth tradition, which recognizes importance of
preserving due administration of justice as a continuing
process
–Small size of jurisdiction means it is easy to communicate
widely through one major news outlet
–Hong Kong judiciary may be criticised freely, but not
subjected to abuse (unreasonable, irrational)
–Allowing such attacks to continue unchecked would
undermine judiciary’s ability to function
Reasoning
 What did the court decide and why? Other issues--
 –Question of influence on Godfrey is not relevant,
pursuit of him could create impression that he would
be cowed
 –Sentence not excessive given persistence and serious
nature of offences, mitigating factors were considered
including acceptance of responsibility, apology and
character of defendant
Reasoning
 In cases with multiple judges, summarize consensus,
concurring opinions and dissents, if any
 –Mayo: Even under the stricter test conviction would
have been upheld
 –Leong: Concurring
Legal basis for decision
 What sources of authority does the court cite?
 –Bill of Rights: restrictions on freedom of expression
allowed if necessary for protection of public order
 –Precedents that distinguish what is and is not
contempt
Legal authorities
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Precedents
–R v Koptyo (1988) 47 DLR (4th) 213
–R v Central Independent Television Plc [1994] Fam 192
–Ambard v A-G for Trinidad and Tobago [1936] AC 322
–R v Commissioner of Police of the Metropolis, ex p
Blackburn (No 2) [1968] 2 QB 150
 Legislation
 –Basic Law of Hong Kong SAR, Article 27
 –Hong Kong Bill of Rights Ordinance
Legal authorities
 Other sources
 –Canadian Charter of Rights and Freedoms
 –European Convention on Human Rights, Article 10
 –International Convention on Civil and Political
Rights, Article 19
 –Arlidge, Eady & Smith on Contempt (2nd ed.)
Holding
 What was the specific outcome?
 Who won, who lost?
 –Appeal dismissed
 –Wong’s conviction upheld
 –Wong to pay costs