Hong Kong court hears journalist Bao Choy's appeal against conviction over accessing public data for documentary

Hong Kong journalist Bao Choy has appeared at High Court to appeal against her conviction over accessing public vehicle registration records when she researched and produced an investigative documentary about the Yuen Long mob attack in 2019.

Choy genuinely believed her application to access the records fell within the scope of “traffic and transport related matters” the court heard on Monday.

Choy, then a freelance producer for public broadcaster RTHK, produced an episode for the television show Hong Kong Connection in 2020, detailing the happenings and the timeline of the mob attack on July 21, 2019. With the help of public record searches, Choy and other producers tracked down vehicles suspected of transporting assailants and weapons to the site of the attack.

She was later convicted of two charges of making false statements to obtain the vehicle registration records and fined HK$6,000.

Erred conviction

Appearing before judge Alex Lee at High Court on Monday, Choy’s barrister Derek Chan argued that the lower court judge erred in ruling that Choy had made a “false statement” when she filled in the application form for accessing vehicle registration details.

According to the government’s website, a search could be related to three aspects: transport related legal proceedings, sale and purchase of vehicle, and traffic and transport related matters. Those are also the only options from which applicants can choose when they make a submission online.

vehicle registration search — Photo: Screenshot, via GovHK.

Chan said there was no definition for “traffic and transport related matters” on the website. And when the journalist sought to identify the owner of a car that was suspected of transporting weapons, she believed it was related to traffic and transport because it was about the use of a vehicle on the road.

Chan said the term “related” is a very broad one, and a “overly-narrow interpretation” of the phrase “traffic and transport related matters” would disproportionately harm the freedom of journalists covering and reporting on issues that pertain to traffic and transportation.

The lawyer also argued that the authorities had not provided accurate wordings for a submission, so even if an applicant’s submission was considered not up to par, it does not mean that the applicant made a false statement.

Decades-long practice

The barrister also referred to a Legislative Council (LegCo) document in 2011, in which the Transport and Housing Bureau – now renamed as the Transport and Logistics Bureau – proposed restricting the conditions for granting vehicle registration information to public applicants in a bid to better protect personal data and privacy of car owners.

Chan said the bureau had proposed allowing “legal proceedings involving the vehicle” as one of the reasons for a search.

Conducting public records searches was a years-long practice among journalists for news reporting and discharging their duty as a “public watchdog,” Chan added.

According to government data, the Transport Department in 2010 issued more than 54,000 certificates for such public record search. “Thousands were made by news outlets. It has been done for decades,” Chan said.

Lee, Alex 李運騰.JPG — Justice Alex Lee. Photo: Judiciary.

Interrupting the lawyer’s submission, Lee said: “So the mechanism gives you three options to choose, as long as you dare to tick one of the boxes, [the application] will be granted, the worst that could happen is [the authority] could get back at you and penalise you later.”

Chan responded that a written submission can be made to the Commissioner for Transport, if none of the three options fit.

‘Mandatory’ supply of records

Chan also argued that the Commissioner for Transport is obliged to entertain any applications as long as a payment for the search is received. Article 4(2) for the Road Traffic (Registration and Licensing of Vehicles) Regulations stipulates that “[t]he Commissioner shall, on payment of the fee prescribed in Schedule 2, supply to any person making application for any particulars in the register in respect of a vehicle a certificate stating such particulars.”

yuen long attack 721 — Rod-wielding men entered Yuen Long MTR station on July 21, 2019. Photo: RTHK.

Chan said the word “shall” in the regulation implied it was mandatory to supply the applicant with the public record. So the Commissioner should make a decision based solely on whether the applicant paid, not the reason for their application. He said the government also stated in the LegCo paper that “[t]he Commissioner has no discretion in withholding the release of such particulars,” provided that the fee is paid.

Not ‘absolute responsibility’

The Department of Justice (DoJ), which was represented by prosecutor Derek Lau, then responded to Choy’s lawyer. He first said the term “shall” did not equate to “an absolute responsibility” by the Commissioner to grant approval to all applications.

Lau said Article 111(4) of the Road Traffic Ordinance stipulated that if it appears to the Commissioner that any declaration or statement made by the applicant for such public record certificate “was false in a material particular, the Commissioner, after giving to such person not less than 7 days’ notice in writing of his intention so to do, may cancel such document.”

Clear wordings

Lau further argued that the regulation’s “wordings were clear” and it was “easy to understand” the meaning of “traffic and transportation related matter.” He said it was obvious that news reporting did not fall under such category.

Lee said the government had contradicted itself when giving examples of scenarios in which an application for records would be approved. He said official papers showed that the government proposed accepting legal proceedings involving the vehicle as a valid reason.

Lau said the LegCo document was merely a proposal, and since the amendments did not go through, the paper was of little reference value.

Transport Department. File photo: Candice Chau/HKFP.

However, Lee asked: “If the department could mess up a black-and-white reference for the public, is it surprising that a member of the public would misunderstand [the phrase]?”

The general public have viewed public records searches as not breaking the law “from time immemorial,” he added.

Lau insisted the wording of the regulation was clear, saying “if the applicant felt that none of the options [fit] her purpose, she should not randomly choose one and hide her intention of news reporting.”

‘For the industry’

Accompanied by a group of supporters and former colleagues, Choy met the press after the two-hour appeal hearing. She said the appeal was not for herself and she wished to “do something for the [news] industry and Hong Kong’s freedom of press.”

She said valuable reports had been made possible thanks to the long-standing practice of the media conducting public records searches, adding that they were matters of public interest.

Choy said her case marked a negative precedent for many Hong Kong journalists, as some media outlets have since stopped reporters from making such searches.

“I strongly believe any access to free information and matters to public interest should be granted to journalists for the sake of monitoring any abuse of power and also the proper use of power and also any wrongdoings,” Choy said.

“So I would say my case had set up a very bad example because it hindered the access to free information and also press freedom. I’m not sure whether this appeal case can win or not at the end. But hopefully, I hope that will bring some positive impact if we are able to change the ruling.”