As the only member of the Hong Kong Free Press team who qualifies to benefit from the probably spurious association of grey hair with wisdom, I am sometimes asked for advice about stories with legal implications.
The arrest of media tycoon Jimmy Lai and two other people for public order offences the other day presented no difficulties as far as the law is concerned, but some practical problems.
I explained, as one does, that once a person has been arrested, it is contempt of court to publish anything which implies that the arrested person is guilty, or for that matter that he or she is innocent.
I added, however, that this law had fallen into disuse since the 1997 handover, and was frequently infringed without consequences. I recommended that, as HKFP is not a publication much loved by some people, it would be prudent to follow the law anyway, even though this was likely to result in our piece being much less dramatic than other people’s.
And so it transpired. The South China Morning Post led with the US State Department comment on the arrests, which was carefully phrased:
We expect the Hong Kong authorities not to use law enforcement selectively for political purposes, and to handle cases fairly and transparently in a manner that preserves the rule of law and the Hong Kong people’s universal rights to freedom of peaceful assembly and freedom of expression.
Deeply concerned that the arrest of publisher Jimmy Lai and two others could have a chilling effect on freedom of expression in #HongKong. We urge the Hong Kong authorities to preserve the rule of law and handle cases in a fair and transparent manner. https://t.co/zWxrMaG3xE
— Morgan Ortagus (@statedeptspox) February 29, 2020
You could charitably categorise that as a statement of principle rather than a comment on the merits of an individual case. But it provoked a reply from the China Foreign Office in Hong Kong, offering the usual threats.
Then there was a statement from the Department of Justice, “a rare move” denying political influence, a canter through the prosecution case with “a police spokesman,” and an assurance from the Security Bureau that the arrests were based on evidence and law.
Then we got to the people who had said or implied that the arrests were not based on evidence and law: former governor Chris Patten – “outrageous” – and US Congressman Michael McCaul – “blatant political oppression.”
Now the gloves are off we get another dollop from the Foreign Ministry, in which it is implied that the men arrested are “anti-China plotters who messed up Hong Kong.”
Taiwan’s Foreign Minister is quoted as tweeting sadness, and former chief executive Leung Chun-ying is quoted as writing on Facebook that Apple Daily, Mr Lai’s newspaper, is “the symbol of the abuse of freedom, and is the culprit for the deteriorating media landscape in Taiwan.”
The Post’s effort ends as it began, with a careful bit of diplomatic phraseology: the EU’s office in Hong Kong is “monitoring the situation.”
Clearly this article is a laudable attempt at balance. But I do not think that complies with the law. If it is unlawful to imply that the arrested person is innocent or guilty it must surely be against the law to imply both with attribution to different sources.
The saddest part of the whole thing is the appearance of the “rare move” from the Department of Justice (DoJ). It is a shame that the DoJ feels the need to assure us that cases are decided impartially. That ought to be expected. We do not expect to get “rare moves” from the Fire Brigade saying that they try to put all fires out impartially.
The other sad thing about this statement is that the vast majority of the population will not believe a word of it. This is where we have been brought by years of lies and evasions.
Talking of lies and evasions brings us back to Leung Chun-ying, who stars in the Hong Kong Standard’s piece on the arrests with a quote so flagrantly prejudicial that I dare not repeat it. At the time of writing, it is still viewable online, in the third paragraph.
The Standard’s piece, headlined without irony: “Beijing warns against meddling in Lai case,” has the disadvantage that the first half is entirely attributed to Xinhua, whose scribes are not inhibited by any need to worry about Hong Kong law, or indeed to avoid meddling in the Lai case. So we are told that the arrests are “the arrival of long-awaited justice.” We get the quote from Mr Leung, and one from a DAB bigwig who thought the arrest was “encouraging news.”
Then we meet a Mr Willy Fu, spokesman for a bit of United Front work called the Hong Kong Legal Exchange Foundation, who thought the arrests were based on “sufficient evidence.” Is this man not a lawyer?
And we have a mini-protest outside the Next Media office (around 20 people) whose organiser says Mr Lai has “been taking action that disturbed the country and Hong Kong.”
Just in case you thought the “state media” were being a bit defensive we get a final round-up of the more critical views: the State Department, Mr Patten and Amnesty International get a paragraph each.
And there you are. Government-friendly publications can do what they like. Actually, the discussion of Mr Lai is not the worst example, even in Monday’s newspapers. On the same page as the Standard’s coverage of the Lai case is another one headlined “Jobless man ‘burned MTR bins on impulse’.”
This consists entirely of a detailed account of the prosecution’s case running over 12 paragraphs, including the interesting detail that “under police caution, he admitted to committing arson during a moment of impulse,” according to Chief Inspector Jack Mok Tsz-wai.
I can remember a newspaper being fined HK$80,000 for a comment piece which implied (it was not in fact the case) that a man on trial had made a confession. Mr Mok “warned that arson is a serious offence.”
So it is indeed. Contempt of court, on the other hand, appears to have been repealed by neglect.