tim's experiment

This is the sort of thing which puts you off teaching media law in Hong Kong. In March last year when the 47 National Security group defendants first appeared in a magistrate’s court, there was some discussion in court as to whether reporting was allowed.

Reporting of committal proceedings – basically all the hearings before the start of the actual trial – is restricted to bare details of names, charges and decisions on bail. But the restrictions can be lifted under some circumstances.

Magistrate Victor So, one of our – or rather their – national security specialists, supposed he had complete discretion in the matter and announced that the usual restrictions on reporting would remain.

This was an error, and I wrote a piece to this effect a few days later. This is not an obscure or controversial matter. The law is of considerable antiquity and it is quite clear. If the defendant – or if there is more than one defendant any one of them – wishes to have the reporting restrictions lifted then they must be lifted. But of course national security judges should not be swayed by the scribblings of a non-lawyer like me, and nor were they.

All subsequent applications for reporting restrictions to be lifted were refused, most recently by another national security star, Principal Magistrate Peter Law. This is a small personal embarrassment, because I taught this stuff for years, and always included the bit about restrictions being lifted if the accused person wished it.

However one recent victim of the new policy, barrister Tonyee Chow Hang-tung, took the matter to the High Court by seeking judicial review of the decision. It appears that Ms Chow, unlike many of our learned magistrates, can read the Magistrates Ordinance and has done so.

The application was a complete success. Judge Alex Lee ruled that the magistrate had exceeded his authority by refusing to lift the restrictions. “The magistrate has no discretion but to lift the reporting restrictions at the instance of the accused,” said the judge, adding that the magistrate’s approach to the matter was “totally in opposition to the principles of open justice.”

Disgracefully, the magistrate’s arbitrary action was defended by counsel for the Secretary for Justice, who contended that “lifting the restrictions would frustrate the ultimate aim of doing justice.”

It seems that both Mr Law and the Department of Justice were under the impression, shared by The Standard’s reporter, that the restrictions on reporting are intended for the protection of prosecution witnesses. This is not the case.

The purpose of the restrictions is to protect the defendant. In the old days the prosecution evidence was given in great detail during committal proceedings, while for tactical reasons the defence said little. The unintended but inevitable result of this arrangement was that reports of the proceedings were heavily biassed against the defence.

So the idea of the restriction is to prevent the defendant from being disadvantaged at his trial. You can actually report all the committal proceedings after the trial has taken place, which is occasionally useful if the defendant pleads guilty and the prosecution evidence is not needed at the full trial.

Clearly this arrangement conflicts with the principle that justice should be public. So the defendant is given the choice. He or she may – if convinced that this will help, or not harm, the defence – ask for the committal hearing to be reportable as other hearings are. There are a variety of reasons why the defence might think publicity helpful, though discouraging prosecution witnesses is not usually given as one of them.

But the court has no discretion in the matter, however dubious the defendant’s decision may be. In one notorious English case a defendant was paid by an eager newspaper to get the restrictions lifted. And they were.

Actually in Hong Kong these days the restrictions on reporting of committal proceedings have become pointless. The prosecution submits its case on paper and witnesses are not heard.

Moreover the defendant has often already been prejudiced because soon after his arrest the police generally outline what is effect going to be the prosecution case in a press briefing. This used to be harmless, at least in theory, because names or other identifying details of those arrested were not included. Times have changed.

So all this is not going to make a great deal of difference. It does mean we shall be able to read reports of the prosecution’s limp excuses for not being ready for trial months or years after the date of the alleged offence.

I gather from a recent speech by the new Secretary for Justice that his department now recognises that this is a problem. This enlightenment also has been much delayed.