Hong Kong journalist Bao Choy has furthered her chance of appealing her conviction over accessing car licence information for an investigative documentary about a mob attack in Yuen Long in July 2019.
The High Court granted Choy a certificate to apply for leave to appeal, moving the journalist a step along the convoluted appeal procedure.
High Court judge Alex Lee said some of the legal arguments raised by Choy were of “great and general importance” and should be further deliberated by the Court of Final Appeal.
Lee rejected Choy’s first appeal earlier this month, saying he agreed with the ruling of the initial magistrate that information obtained through the database of vehicle details cannot be “arbitrarily abused.”
Choy, a freelance producer, was arrested in November 2020 and charged with two counts of making false statements to obtain vehicle records for a documentary for public broadcaster RTHK.
The 22-minute documentary uncovered details about the mob attack in Yuen Long on July 21, 2019, widely seen as a turning point in the protests that summer with police accused of siding with the attackers and ignoring calls for help.
She was found guilty last year and fined HK$6,000, a verdict that prompted fears about declining press freedom in the city. The conviction was condemned by the city’s press club and rights groups as an affront to press freedom, since the press often uses such data in the course of regular reporting.
Questions of law
In applying to launch a legal challenge, Choy’s legal team raised two questions of law. The first one was regarding the power of the transport commissioner to refuse applications from the public to obtain vehicle registration information.
“Does regulation 4(2) of the Road Traffic (Registrate and Licensing of Vehicles) Regulations (Cap. 374E) empower the Commissioner for Transport to refuse to supply a certificate as mentioned in that provision to an applicant unless the applicant’s purpose of the application was related to traffic and transport matters?” Choy’s team put it to the court.
Lee proposed rewording it to: “Under regulation 4(2) of the Road Traffic (Registrate and Licensing of Vehicles) Regulations (Capt. 374E), can the Commissioner for Transport refuse to supply a certificate to an applicant on the ground that the applicant’s purpose of the application is not connected with ‘traffic and transport related matters?'”
Tien Kei-rui, who represented Choy, said they would accept the judge’s suggestion.
In the second legal argument, the journalist asked “how should the phrase ‘traffic and transport related matters’ be construed” – and whether it included “journalistic investigation into or involving the use of a vehicle on the road.”
Lee suggested changing it to “[d]oes it cover an investigation by a journalist into the identity of a person suspected to be involved in a crime (not being a traffic offence) when that person is believed to have used a private vehicle to get to and/or away from the crime scene.”
Tien rejected the amendment, arguing that the purpose of applying for access to information could be wider than just identifying someone. Lee interrupted the barrister, saying during Choy’s trial, it was agreed that the information was used to produce 721 Yuen Long Nightmare.
“Are you going to tell me she did not have that purpose in mind when she applied to obtain this information?” Lee questioned Tien. “Do not joke with me.”
Choy “had made phone calls and tried to schedule interviews,” Lee added. “Do not tell me she did not think that way.”
Tien said identifying an individual could be one of the directions, but there could also be other purposes. Lee said he was not satisfied and would not sign off the second argument if Choy’s side did not rephrase it.
‘Great and general importance’
Lee ruled that the first question of law was of “great and general importance, especially for the news industry.” He added it may also affect members of the public who might need vehicle registration data for other purposes like litigation – matters unrelated to traffic or transport.
As for the second legal argument, Choy said they would file an application to the Appeal Committee of the Court of Final Appeal and let it determine whether she had grounds to launch a challenge.
Speaking to the press after the hearing, Choy said she had expected her appeal process to go all the way to the city’s top court, so she felt calm and was not too bothered.
“So I didn’t really have a lot of… worries about the consequence, whether I will win or lose the case, I guess what I’m doing is just trying to continue to pursue justice and I understand that I’m not doing that by myself,” Choy said.
Correction 6/12/2022: An earlier version of the article stated that the High Court had granted Choy leave to appeal her conviction. In fact, the High Court granted Choy a certificate that is required for lodging a leave to appeal.
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