tim's experiment

Readers who suspect that judges live on a distant planet barely visible from the Earth will not have been surprised by the performance of Mr Justice Alan Wright in the Court of First Instance last Thursday. In His Lordship’s dock was a Ms Ng Wai-bing, whose story is rather interesting.

The court was told, according to newspaper reports, that in 2007 Ms Ng’s husband (who may or may not be Mr Ng, Hong Kong habits in this matter being unpredictable) was charged with managing a vice establishment. Ms Ng was waiting in the room outside the court where witnesses, friends of participants, people whose case has not come up yet and other hangers about sit on hard benches produced by resentful previous customers in prison workshops.  She overheard a policeman urging witnesses in the upcoming case to “nail”  the defendant. We only have Ms Ng’s word for this part of the proceedings but in view of what came later the story is plausible. Now policemen are not supposed to coach witnesses in this way, but Ms Ng thought her testimony in the matter might well be dismissed as unreliable or irrelevant. She was the defendant’s wife, after all, and also Hong Kong judicial figures tend to be impervious to complaints of police malpractices. Ms Ng was familiar with this point because she is a former police person herself.  So in order to produce evidence which would brook no dispute she started taping the conversations in the waiting room, and over four months (this seems to have been a very complicated case) collected 47 recordings.  As a result of this evidence-gathering exercise the case against her husband was dismissed, and two of the officers involved in it are now awaiting trial on charges of attempting to pervert the course of public justice. In other words, a miscarriage of justice has bveen prevented, and two suspected criminals have been brought to book.

Naive readers might suppose at this point that Ms Ng might be eligible for one of those awards occasionally dished out to law-abiding citizens who help the police. Well perhaps that is a bit optimistic. Oddly enough these awards do not seem to find their way to people who help the police to avoid infelicities in their own behaviour.  What  may come as something of a surprise is that Ms Ng was not only not praised; she was charged with contempt of court. Quite how this worked in legal terms did not emerge very clearly from the newspaper reports. The Post had some quotes from Ms Ng’s lawyer which suggested that what was going on was an extension of the ban on recording in court on the grounds that the waiting room was part of the court. 

Reading the quotes provided from Mr Justice Wright’s judgment, on the other hand, suggested a more general offence of conduct whereby confidence in the administration of public justice might be impaired. Certainly reading the story reduces one’s confidence in the conduct of public justice, not so much because of the possibility that someone might have bugged the waiting room, as because of the possibility that policemen are coaching prosecution witnesses with impunity and Wright J thinks this happy state of affairs should be preserved. There was a substantial risk, he said, that litigants or witnesses would be deterred from attending court if they thought that someone might be eavesdropping or recording their consultations and conversations. This is, with respect, nonsense. The waiting room is a public place. Everyone can eavesdrop on everyone else. People who want to have private consultations and conversations have other places to go to. In any case, as judges frequently observe when giving the green light for phone tapping, close circuit cameras, random breath testing and other intrusions on privacy, the law-abiding have nothing to fear.  The thought that someone may be taping your conversation is a yawn unless your conversation consists of an attempt to pervert the course of justice. Mr Wright, though, thought Ma Ng’s conduct a “singularly grave instance of contempt of court”. It was “unprecedented … throughout Common Law jurisdictions”, he had been told. Presumably by the prosecution, whose research on this point may not have been very enthusiastic.

At this point Ms Ng must have been looking forward to the chance to sew a few mailbags, read the whole of War and Peace, and sample the Correctional cuisine for a few months. And indeed she was sentenced to nine months. A friend who helped with the recording got six months. But Mr Wright seems to have had some inkling that this outcome would be seen as somewhat bizarre by many people denied the benefits of a lengthy legal education, because both sentences were suspended for 18 months. So Ms Ng walked from the court a free woman, and will stay that way unless the temptation to commit contempt of court again becomes overwhelming in the near future.

The story behind this story will be familiar to former students who have been subjected to my version of media law over the years. The law on contempt of court in the UK was reformed in 1981. In 1987 the Law Reform Commission recommended that Hong Kong should have a comprehensive Contempt of Court Ordinance which would incorporate reforms and also remove uncertainty. Like so many of the commission’s recommendations this one was ignored. So the law is still a mess. So it goes.