Hong Kong journalist Bao Choy’s conviction for making false statements to access vehicle records has been quashed after five judges ruled unanimously in favour of her appeal at the city’s top court. Her sentence has also been set aside.
The former freelance RTHK producer was found guilty in 2021 of making false statements to obtain vehicle records for a documentary she was producing for the government-funded broadcaster about the 2019 Yuen Long mob attack. She was fined HK$6,000.
Choy’s case centred around her use of a public database to review records of vehicles suspected of transporting assailants and weapons to Yuen Long. In her application to access the records, Choy selected “other traffic and transport related matters” from a dropdown menu that asked her intention for obtaining the information.
While the transport chief was “required and entitled” to ask a person’s reason for wanting to obtain vehicle details, “other traffic and transport related matters” included “the serious investigative journalism undertaken here by [Choy] concerning the use of the vehicle,” the court ruled in a written judgement handed down on Monday.
Previous rulings from the magistrate and High Court “narrowly limits the category to [Choy’s] own use of or involvement with the vehicle itself,” the court said.
While rights such as freedom of speech and freedom of the press were “not absolute and may be restricted where necessary, there is no reason to proceed from a starting point that bona fide journalism should be excluded from the phrase ‘[o]ther traffic and transport related matters’,” the court ruled.
“The fact that the appellant was exercising her freedom of speech and of the press in connection with investigating the events of 21 July 2019 should be taken into consideration in considering the alleged offence of making a false statement in a material particular,” the judgement read.
Even if “[o]ther traffic and transport related matters” exclude journalistic purposes, journalists could be “honestly mistaken” in thinking they could choose that option, the court said.
“A journalist in [Choy’s] position faced with the online application form and its drop down menu could well be honestly mistaken in thinking it included activity as one ‘relating to traffic and transport matters’,” the ruling read.
“Given the volume of certificates issued on the application of media and news agencies, it cannot be said to be an irresistible inference that [Choy] would have known it was inconsistent with the purpose she selected for a journalist to apply for such a certificate in order to investigate the use of the vehicle concerned.”
Significant ruling for press freedom
After the top court ruling, Bao’s friends and family could be heard cheering outside the court building. Among those who went to support Choy was ex-chair of the Hong Kong Journalists Association Sham Yee-lan.
When asked how she felt about the judgement, Choy said “happy” was the only word that she could think of to describe her mood.
“I’m very happy that we have a very crystal clear ruling this morning, it states very clearly that there is no reason to start from a starting point that bona fide journalism should be excluded from the phrase ‘other matters related to traffic and transportation’,” Choy said to reporters outside the court on Monday.
“More importantly, it also states the importance of the constitutionally protected freedom of the press and of the speech, and I think that is the biggest significance of today’s ruling,” she continued.
“I kind of think that this kind of happiness belongs to everyone in the society, not just me individually.”
Choy also said she hoped the ruling would change newsroom practice.
“I have faith in my fellow [journalists]. Over the past few years, a lot of us are having a very challenging and also difficult time when we conduct serious journalism, but still, not all, but a lot of us still [place] our highest value of the journalistic principles,” Choy said.
“I also hope that the media management will consider today’s ruling and [use] it in a constructive way,” she added.
Media industry faces ‘difficult situation’
The city’s largest journalist group, Hong Kong Journalists Association, said in a statement on Monday that they welcome the ruling.
“It is ridiculous that journalists were being arrested, charged, and even convicted for seeking the truth,” the statement read.
“Even though Bao Choy won her appeal, the case is sufficient to reflect the difficult situation that the industry is in.”
“The only thing worth celebrating in the case is that a journalist who is innocent is finally exonerated.”
The group added that it “admired” Choy’s persistence in appealing her case, and that she was willing to spend time and money to do so.
“We urge the government to respect the work of journalists to ensure that the public’s right to know and press freedom are protected,” the statement read.
‘Traffic and transport related matters’
During her Court of Final Appeal hearing last month, the court discussed what “traffic and transport matters” entailed.
Senior Counsel Derek Chan – who represented Choy – argued that Choy’s use of the database fell within the scope of “other traffic and transport related matters” as she was looking into the vehicle allegedly used to carry weapons.
Government prosecutor Derek Lau argued that investigations did not fall into such matters, and that the activity needed to have an “inherent nature that relates to traffic or transport.”
After the government prosecutor finished making his arguments, Chan said the prosecution had raised points including some related to personal data and privacy, but did not mention press freedom.
The barrister said press freedom was guaranteed in the Basic Law, the city’s mini-constitution, as well as the Bill of Rights, and “needs to be taken into account” in the case.
The July 21, 2019 attacks at Yuen Long MTR station took place around a month into the protests and unrests that summer over a controversial extradition bill.
That night, dozens of men wearing white shirts – reportedly with triad affiliations – indiscriminately assault commuters, journalists, and protesters returning from a demonstration. The incident marked a turning point for worsening relations between the public and the police, who were accused of ignoring emergency calls to the scene.
Press freedom under the spotlight
Choy’s May appeal – which coincided with World Press Freedom Day – was her last attempt to challenge the conviction. She lost her appeal at a lower court last November.
Press freedom in Hong Kong has come under the spotlight since Beijing passed a national security law in June 2020 in response to large-scale protests and unrest that began in the summer of 2019.
In 2021, two major news outlets Apple Daily and Stand News – both known for their pro-democracy stance – closed down after their newsrooms were raided and staff arrested under national security and sedition charges.
The government, however, has said that press freedom is “respected and protected.”
The city ranked 140th among 180 regions in the international media watchdog’ Reporters Without Borders’ annual press freedom ranking. When the ranking was first compiled in 2002, Hong Kong was 18th.
In the wake of the newsroom closures, small media outlets have emerged to fill the gap, including one co-founded by Choy. Called The Collective, the online outfit is reliant on readers’ donations and produces in-depth reports on social issues and politics.
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