Reporting restrictions on proceedings regarding the transfer of criminal cases to the High Court must be lifted if the defendant makes such a request, a Hong Kong court has ruled. The landmark judgement, which could extend to cases prosecuted under the national security law, came after activist Chow Hang-tung challenged a magistrate’s decision to retain reporting restrictions in a national security case.
In a ruling published on Tuesday, High Court Judge Alex Lee said that magistrates had no say in whether to lift reporting restrictions on committal proceedings if the accused had applied to do so.
Chow, the former vice-chairperson of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China, filed a judicial review in May against Principal Magistrate Peter Law’s decision in April to reject her request to lift reporting restrictions.
Lee wrote in the ruling that even if magistrates had the discretion, they should not refuse to lift restrictions “unless such refusal is ‘strictly necessary’ in the interests of justice.”
In committal proceedings, a magistrate determines whether there is enough evidence for a case to be transferred to a higher court for trial or sentence. Reporting restrictions surrounding committal proceedings mean that written and broadcast reports are limited to including only the name of the defendants, magistrates, and lawyers, the alleged offence, the court’s decision, whether legal aid was granted, and future court dates.
Chow, along with the Alliance, and the group’s former leaders Lee Cheuk-yan and Albert Ho, were charged under the Beijing-imposed national security law over alleged incitement to subversion.
Law rejected Chow’s application to lift reporting restrictions on April 25, saying that doing so would lead to “widespread critical discussion or even attacks” because the entire proceedings could be reported.
Law also said that spectators at court proceedings often disregarded discipline, and could place psychological pressure on witnesses testifying in court. Some witnesses might be deterred from testifying because of the pressure, he added.
In the ruling on Tuesday, Lee said that Law had not considered relevant matters, including measures to protect the identity of witnesses or deal with unruly members of the public in court.
“As such, I am inclined to the view that even if there were such a discretion as contended by [the Department of Justice], the [magistrate’s] Decision would still be flawed in that it entails a failure to take into account relevant considerations and as a result of which it has not been shown that the reporting restrictions were ‘strictly necessary’ in the circumstances,” Lee wrote.
Lee quashed Law’s earlier decision, and ruled that he “shall make an order to lift the reporting restrictions” when Chow “is next appeared before him.”
Unfairness to other defendants
While the Department of Justice argued that lifting reporting restrictions might result in unfairness towards other defendants in the same case, Lee ruled that the magistrate “would have no discretion even when that happens.”
The judge also said that as Chow’s co-defendants had not been part of the legal challenge, he would “restrain from expressing any conclusive views” on the matter.
“However, whether or not a ‘remedial interpretation’ could and should be adopted has not been argued before me by any of the parties. This, too, should be left for future consideration in a suitable case,” Lee wrote in his judgement.
The Alliance, before it was disbanded in September last year, organised Hong Kong’s annual candlelight vigils commemorating victims of the Tiananmen crackdown, where it is estimated that hundreds, perhaps thousands, died when the People’s Liberation Army cracked down on protesters in Beijing on June 4, 1989.