HKFP Law Blog Law & Crime Opinion

Trials are for the courts to decide, not the media

Every year I take a group of students on a tour through the parts of the Hong Kong legal machinery which concern the media. This week, as luck would have it, we have reached the matter of contempt of court. The purpose of this part of the law is to ensure that an accused person has a fair trial. The method used to obtain this objective is a prohibition on the media publishing material which suggests that any person who has been caught up in the legal mincing machine is guilty – or, for that matter, innocent. This is a question to be decided by the courts without any help from the media.

The law on contempt is only one of the provisions designed to do this. I have complained before that many of the others have suffered from gross neglect lately. The Department of Justice does not monitor newspapers, as it used to do when it was called the Legal Department. Consequently infringements are not noticed or punished. Media outlets which restrain themselves as the law requires find that they look stupid. Lessons are learned.

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Ray Wong was arrested in Tin Shui Wai on Sunday. Photo: Lai Ka-Kui/Apple Daily.

As a result standards decline. Consider the case of Mr Ray Wong Toi-yeung, who was arrested on Sunday and charged with rioting. Any reporting of this matter is governed by the law on what is called “strict liability contempt”, which means that the newspaper is liable whether it intended the offence or not. The law states that from the time when legal proceedings are “imminent” we must not publish anything which produces a “real risk of substantial prejudice” to the proceedings.

Now let us see how this rule is observed in the South China Morning Post these days. On Tuesday Mr Alex Lo decided to write about the Hong Kong independence movement. Nothing wrong with that. In fact on this topic I suspect Mr Lo and I are in entire agreement. But Mr Lo’s forays into discussion of public issues are often spiced with a little personal venom. The HKU Staff Association, for example, were characterised in his column on the university’s autonomy and related matters as junior lecturers motivated by envy of their elders and betters. The group of academics who urged an independent inquiry into the fishball riots were not just misguided. They were mostly “assistant professors or associate professors without PhDs.” So it does not come as a complete surprise that Mr Lo’s “take” on seeking independence included a good deal of personal denigration of Mr Wong, who on the previous page could be seen flanked by two policemen and wearing a bag over his head.

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Photo: SCMP screencap.

Mr Wong, said Mr Lo, was “mesmerised by the sound of his own voice.” After a list of items found in the flat where Mr Wong was arrested we conclude that his “inclinations towards violence and sex are rather pronounced”. And “Those who have tried to justify and explain away the delinquent nature of this movement have helped create this monster.” I suppose it will be argued on behalf of Mr Lo that the “monster” is the movement, not the man. But as his piece starts with the announcement that Mr Wong is a “key figure” in the group I am not sure that this is much help.

The following day there is more interesting reading for legally inclined readers. On the front page we have Mr Wong’s first appearance in court. This comes in the category of “committal proceedings” and reporting is restricted to a list of items which the Post’s reporters scrupulously observe. There is nothing, for instance, about the circumstances of his arrest or possibly incriminating items found at the location where it took place. For these, however, readers only have to turn the page to Mr Michael Chugani’s column, where “I point out that Ray Wong Toi-yeung, convenor of localist group Hong Kong Indigenous, was in a flat with bomb-making chemicals, weapons, drugs and over half a million dollars in cash when police arrested him in connection with the riots.”

lady justice

File Photo: Apple Daily.

This is precisely the sort of writing which the law is supposed to prevent. Actually, if Mr Wong had been arrested in my house the police could, had they wished, have found bomb-making chemicals, weapons and drugs. I do not keep that much cash around the place. Many household chemicals can be used to make bombs. I have two swords, one used for Scottish dancing and one a souvenir of a visit to the Shaolin Temple. And at my age, taking pills is a way of life. But in any case the house is mine, not Mr Wong’s. What Mr Chugani is pointing out is that he believes Mr Chow to be guilty, precisely the matter which is supposed to be left up to judges.

It may be, I suppose, that even as I write these words the Department of Justice is swinging into action to protect Mr Wong from the stream of rampantly prejudicial coverage which is being squirted in his direction. If so I apologize. But years of inaction have lowered expectations. Can Mr Wong be assured of a fair trial, unsullied by prior publicity which assumes his guilt? Readers may feel that Mr Wong deserves little sympathy. But if he is not protected by the presumption of innocence, then neither are the rest of us. Anything to say, Rimsky?

Trials are for the courts to decide, not the media