HKSAR v. Chan Yiu Shing and Others

(Ruling 3)

HCCC 41/2016

[2018] HKCFI 307

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 41 OF 2016

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D I R E C T I O N

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1.It was brought to my attention yesterday by Mr John Haynes, counsel for the 3^rd defendant, that on 8 February 2017, the Standard newspaper published an article entitled “Trial of bombing suspects starts”. The article contained factual inaccuracies as to the description of the charges that the defendants face and what took place in the Court proceedings. More particularly, it contained matters about the case that clearly did not arise from the court proceedings. Mr Jonathan Man, for the prosecution, after a review of the article noted that it contained matters or comments about the case that were either not accurate or not part of the prosecution case.

2.Mr Haynes described the article as “completely misleading”.  He informed me today that there were similar articles in the past that are still accessible. 

3.Mr Randy Shek, counsel for the 1^st defendant, mentioned that there was a previous article published by the Apple Daily newspaper where the 1^st defendant’s prior convictions were set out, including one for a similar offence that he now faces.  He said, and this was confirmed by the prosecution, that the article is still accessible on the website of the newspaper.  He produced today a copy of the article which was accessed online.  It mentions the 1^st defendant’s previous criminal record, and that the 1^st defendant and the 2^nd defendant are involved in another criminal case which is briefly described.

4.Mr Douglas Kwok, counsel for the 2^nd defendant, raised the possibility that there may be previous articles about this case which may have mentioned prejudicial matters or were expressed in prejudicial terms that could still be accessible on the websites of the newspapers involved.  He has produced today copies of other online articles and a copy of an online social networking site where the case has been discussed. 

5.It appears that at the time the defendants were arrested in June 2015 that there was a lot of publicity about the case and a number of media articles were published in relation to it.

6.It has to be said at the outset that the media have a necessary and important role to play in our society.  The freedom of the press and of publication is guaranteed under Article 27 of the Basic Law.  But it is to be noted that an accused person is guaranteed the right to a fair trial provided by Article 87 of the Basic Law and Article 10 of the Hong Kong Bill of Rights Ordinance, Cap 383.  Article 10 in particular mentions restrictions that may be imposed on the press where publicity would prejudice the interests of justice.  The relevant law and principles concerning press coverage of criminal proceedings was recently addressed by the Court of Appeal in HKSAR v Wu Wing Kit and Anor [2016] 3 HKLRD 386.

7.It is imperative that members of the media whilst seeking to fulfil their important public function do not do anything that may prejudice the fair trial of an accused person.  In a number of ways, prejudice may be caused to the fair trial of an accused person, including inaccurate and misleading reporting of a case before the courts.

8.In the circumstances, I issue the following warning which follows the form of the warning given in Wu Wing Kit.

9.The media is warned that a criminal trial before a judge and jury is about to commence in this Court, HCCC 41/2016.  The integrity of that trial and the due and fair administration of justice is an aim that must be protected and preserved.

10.The media is warned of its legal duty not to publish anything in whatever form (whether in a paper publication or on a dedicated website) which might create a substantial risk of prejudice to the fairness of that trial.  Those that publish material or otherwise act in a manner calculated to prejudice that aim run the risk of contempt proceedings being instituted against them.

11.I direct that the media not report this matter and direction during the currency of these proceedings as it would only further exacerbate the issue that this Court now has to address in the forthcoming criminal trial of the defendants.

Postscript

12.On 17 February 2017, I granted leave for the Direction to be distributed to the operator of Facebook in light of two Facebook pages referred to by Mr Douglas Kwok, for the 2^nd defendant, in the application for a permanent stay as a result of prejudicial pre-trial publicity. 

13.On 23 February 2017, the case was adjourned to 1 September 2017 as the 18 days set aside for the trial were mainly utilised to deal with an array of applications and issues.  I mention this because the adjournment will in all likelihood minimise any prejudice that may have arisen from the recent Standard newspaper article referred to in this Ruling.

Mr Jonathan Man, SADPP, and Mr Gary Leung, SPP of Department of Justice, for HKSAR

Mr Randy Shek, instructed by Bond Ng Solicitors, assigned by Director of Legal Aid, for the 1^st defendant

Mr Douglas Kwok, instructed JCC Cheung & Co., assigned by Director of Legal Aid, for the 2^nd defendant

Mr John Haynes, instructed by Krishnan & Tsang, assigned by Director of Legal Aid, for the 3^rd defendant

Mr Thomas Iu, instructed by Jackson Ho & Co., assigned by Director of Legal Aid, for the 4^th defendant

Mr Keith Fung, instructed by Tang, Wong & Cheung, assigned by Director of Legal Aid, for the 5^th defendant