In a landmark ruling linked to a national security case last week, a High Court judge ruled that reporting restrictions on committal proceedings must be lifted upon the application of the accused. HKFP explains what the restrictions are, and what the ruling could mean for other ongoing court cases.
What are committal proceedings?
Committal proceedings take place when the prosecution applies to transfer a case to the Court of First Instance of the High Court, where judges can impose the highest penalties.
Before the case is transferred to the High Court, the defendant can elect to have a preliminary inquiry, where witnesses may be called to testify in court. The magistrate will then rule on whether the prosecution has sufficient evidence to make a case against the defendant.
What are reporting restrictions for committal proceedings?
According to section 87A of the Magistrates Ordinance, reporting restrictions on committal proceedings limit written and broadcast reports to include only the name of the defendants, magistrates, lawyers, the alleged offence, the court’s decision, whether legal aid was granted, and future court dates.
Reporting restrictions as prescribed by section 87A only apply to cases to be transferred to the High Court. There are no restrictions on covering proceedings for cases handled in a Magistrates’ Court or the District Court, besides some limitations on bail reporting.
When can reporting restrictions be lifted?
The Magistrates Ordinance stipulates that the magistrate shall lift reporting restrictions upon the application of the defendant. In cases where there is more than one defendant, the magistrate is required to remove restrictions even if only one of the accused applies for them to do so.
In April, Principal Magistrate Peter Law rejected an application from Chow Hang-tung, former chairperson of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China, to lift reporting limits on her national security case.
The Department of Justice said at that time that allowing media coverage of the committal proceedings could jeopardise a fair trial, because the potential for negative media attention might place additional pressure on witnesses.
High Court Judge Alex Lee later ruled that magistrates do not have discretion over lifting reporting restrictions on committal proceedings if the accused applies to do so, after Chow filed a judicial review to challenge Law’s decision.
In his judgement, Lee said that reporting restrictions were in place to protect the defendant from “pre-trial adverse publicity which may affect the future jury,” and thus it was “the accused, not the prosecution, [who] is given the right to waive this protection.”
“There is no evidence that the policy… is for the protection of (prosecution) witnesses,” Lee wrote in the judgement. “Rather, there is every evidence that the policy behind that section is to protect the accused, so that it is up to the accused to decide whether he or she would waive that protection.”
The High Court judge also wrote that even if they had discretion on the matter, magistrates should not refuse an application to lift reporting restrictions, “unless such refusal is ‘strictly necessary’ in the interests of justice.” When such a refusal might be strictly necessary “would be fact and case sensitive,” Lee wrote.
Additionally, in making his ruling, Law “did not seem to have considered” relevant matters including measures that would mitigate concerns raised by the Department of Justice, the judgement said.
“As such, I am inclined to the view that even if there were such a discretion… the 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.”
In cases where defendants do not apply for reporting restrictions to be lifted, media outlets can only publish details of committal proceedings once the trial has been completed, according to the Magistrates Ordinance.
What does Lee’s ruling mean for national security cases going forward?
Before Lee’s ruling, media reports of court hearings under reporting restrictions for committal proceedings were limited to using vague terms. This meant that reports were generally brief and often had near identical headlines.
Before Chow’s judicial review, journalists employed phrases such as “legal dispute” in their coverage, without providing any details as to what the dispute was about or what arguments were raised.
If found guilty of violating reporting restrictions, offenders could risk a maximum of six months imprisonment and a fine of HK$10,000. In general, reporters in Hong Kong adhere to rules. However, there have been some instances of activists overseas posting court updates that flout reporting restrictions.
While it is uncertain whether the Department of Justice will file an appeal against Lee’s ruling, Chow will next appear in court on August 17, meaning that reporting restrictions on her national security case could be lifted that day. Chow, along with the Alliance and two of the group’s former leaders, stand accused of incitement to subversion.
The ruling on Chow’s judicial review could also have far-reaching implications for other national security cases that have been or will be transferred to the High Court, including the case against 47 democrats accused of conspiring to commit subversion.
Committal proceedings for the group of activists and former lawmakers took almost a year, with the court first handling the prosecution’s application to move the case to the Court of First Instance in July 2021. Their case was transferred to the High Court in June this year, after the group had made six appearances in court.
Lee’s ruling could mean that if a defendant in the 47 democrats case applied to lift reporting restrictions, a magistrate would be bound by the High Court judge’s decision to remove them, and that journalists would be able to report on the submissions that took place in the space of a year.
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