I have now been battling the same legal error for 20 years. Hey, judges and magistrates, there is nothing in the law which authorises or even permits you to hamper members of the public who wish to take notes in your courtrooms. Why are there so many arrogant judicial nincompoops who cannot get their heads round this? Latest candidate for the Seal of Disapproval is Magistrate Li Kwok-wai. According to yesterday’s SCMPost Mr Li not only expelled from his court a lawyer who was not involved in the case for “taking notes without his permission” but also “ordered a partner of the solicitor’s law firm to attend today’s continuing session to provide him with a written explanation”. This is unlawful and unwarranted.
I do not assert this merely off the top of my own head. When I was teaching journalism I regularly told my students to go to their nearest Hong Kong magistracy and report a case. As they were not at that stage reporters, strictly speaking, I told them they should sit in the public gallery. Of course they had to make notes. Almost every year a student would be chided by some legal flunky for taking notes without permission. In the early days I regularly wrote to the chief magistrate of the relevant Palace of Justice pointing out that this had happened and asking why members of the public were not allowed to take notes in his court. Every time I did this I received a courteous reply saying that there was no objection to people taking notes in any part of the court and the magistrate concerned had given instructions accordingly. Nevertheless these incidents continued to occurr – court attendants at Shatin Magistracy were particularly obdurate in their error for some reason – and I started complaining about it in a column I wrote in those days.
This produced a letter from a friendly lawyer who pointed out that the matter was more serious than a minor impediment to the training of juvenile journalists because in some courts, like the Small Claims Court and the Labour Tribunal, the participants were not allowed lawyers. If nobody was allowed to take notes then the person was left with no record of the proceedings at all, a serious disadvantage if he or she wished to appeal. Consequently he had taken the matter up with the Judiciary, and provided them with a carefully researched brief indicating with relevant precedent cases that in Common Law the right to attend a public hearing included the right to take notes if you wished to do so. This was all some time ago but I think the Judiciary’s reply was something along the lines that they would draw judges’ attention to the matter. This does not seem to have been very effective.
Really this matter does not call for profound legal reasoning; it merely requires common sense. The purpose of giving judges power over behaviour in their courtrooms is to keep order so that justice may be done. There is nothing disorderly about making notes. It does not interfere with the proceedings in any way. Reporters make notes all the time without causing any problems… except that if the magistrate does something really stupid the fact is likely to become widely known. This is an argument for being more careful, not for restricting reporting.
tim's experiment 
The practice of discouraging note-taking is directed at witness-coaching, i.e. PW5 (who, in criminal trials, must be excluded from the courtroom during the evidence of preceding witnesses) sends along his mate to make notes of what PW1 says, so that when PW5 fronts he will be able to tell a load of whoppers that dovetail nicely with his predecessors in the witness-box. Valid?
An interesting suggestion, but there are some problems with it:
1. The practice seems to vary with judicial whimsy – some judges object, others don’t mind.
2. Those who object are often sitting in courts which don’t hear criminal matters or don’t hear witnesses other than the parties involved – who are allowed to sit through all the evidence anyway.
3. I do not think witnesses coach each other: PWs are coached by the P, who can wander in and out whenever they like.