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Chow Hang Tung v Secretary For Justice

Judgment Cited authorities 14 Cited in Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date02 August 2022
Neutral Citation[2022] HKCFI 2225
Year2022
Citation[2022] 4 HKLRD 183
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
Judgement NumberHCAL401/2022
HCAL401/2022 CHOW HANG TUNG v. SECRETARY FOR JUSTICE

HCAL 401/2022

[2022] HKCFI 2225

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 401 OF 2022

____________________

BETWEEN
CHOW HANG TUNG Applicant
and
SECRETARY FOR JUSTICE Respondent
HONG KONG ALLIANCE IN SUPPORT OF PATRIOTIC DEMOCRATIC MOVEMENTS OF CHINA 1st Interested Party
LEE CHEUK YAN 2nd Interested Party
HO CHUN YAN ALBERT 3rd Interested Party

____________________

Before: Hon Alex Lee J in Court
Date of Hearing: 12 July 2022
Date of Judgment: 2 August 2022

______________

JUDGMENT

______________

Introduction

1. By way of judicial review, the Applicant[1] seeks to challenge the decision of the Principal Magistrate Mr Peter Law (“Magistrate”) made on 25 April 2022 (“Decision”) refusing to lift reporting restrictions for committal proceedings upon her application made under s87A(2) of the Magistrates Ordinance (Cap 227) (“MO”). When this court granted leave to the Applicant for her proceeds with this judicial review, direction was also given that the Secretary for Justice (“SJ”) be added as the Respondent[2].

The issues

2. The issues in this review are within a narrow compass, namely: (i) whether the first “shall” in s87A(2), MO bears its plain and literally meaning so that it imposes a mandatory duty on the Magistrate to lift the reporting restrictions upon an application by an accused pursuant to that subsection; (ii) if the answer to (i) is in the negative so that the Magistrate has a discretion, whether he had taken into irrelevant considerations or had failed to take into account relevant considerations in coming to the Decision.

3. On behalf of the Applicant, Mr Dykes (with him, Mr Wong) submits, in a nutshell, that s87A means what it says, to the effect that reporting restrictions must be lifted if an application is made requiring that the default position under section 87A(1) should no longer apply. Therefore, the magistrate erred in supposing that a discretion existed. It is further submitted that even if such a discretion did exist, the Magistrate’s reasoning was totally in opposition to the Principles of Open Justice that govern the exercise of judicial power in the context of restricting access to, or reporting of, court proceedings.

4. On the other hand, Mr Ma (with him, Mr Tang) submits, in a nutshell, that purposively and properly construed and in particular having regard to the importance of ensuring a fair trial, s87A(2) carries a meaning which differs from its plain and natural meaning in that it confers a discretion on examining magistrates presiding over committal proceedings whether or not to lift the general reporting restrictions imposed by s87A(1). Furthermore, it is submitted that the Magistrate had properly exercised his discretion in the matter.

Basic Facts

5. The facts, which are not in dispute, are as follows. The Applicant, together with the three Interested Parties are prosecuted for one charge of “incitement to subversion”[3]. The prosecution intends to seek a committal of the defendants to the Court of First Instance for trial and for that purpose the committal bundles were served on the defence in February 2022.

6. On 14 February 2022, which was the first appointed Return Day, the Applicant made an application to the Magistrate asking that the reporting restrictions under s87A(1), MO (which is specific to committal proceedings) be lifted. Subsequent court appearances were fixed and re-fixed for argument on several issues. Eventually, on 25 April 2022 the aforesaid application was argued[4] , immediately after which the Magistrate made the Decision and gave oral reasons for it.

7. On 30 May 2022, the Applicant filed her Form 86[5] applying for leave for judicial review. On 31 May 2022, the Applicant elected for a preliminary inquiry (“PI”) the hearing of which is to commence on 2 September 2022. So far, none of the defendants have been committed to the High Court.

8. As aforesaid, leave for judicial review was granted by this court on 2 June 2022 and at the same time directions were given for the service of the papers on the Secretary of Justice and all interested parties and also for the filing of affirmations and skeleton arguments (if so advised). It is noted, however, that none of the interested parties seeks to file anything or to be heard in the present judicial review[6]. I take it, therefore, that the Interested Parties all take a neutral stand in the matter.

The Magistrate’s reasons for the Decision

9. The Magistrate’s reasons, given orally in Cantonese, can be found in the transcript of his ruling[7]. He made the following points:

(a) the concept of fair trial, which is provided for in the Basic Law (BL), the Hong Kong Bill of Rights Ordinance[8] (BOR) and the NSL, is the cornerstone of our legal system[9];

(b) s87A, MO, as an exception to the general principle which allows reporting of court proceedings, was enacted to realise the spirit of fair trial[10];

(c) the court has an implied power of discretion when considering application made pursuant to s87A(2)[11];

(d) the criminal case has several unique features: (i) it is a sensational case that has attracted much attention, both locally and overseas; (ii) the case had been widely reported by the media; (iii) a great number of members of public attended in court, some of them shouted in court, and that presented problems in maintaining court order and discipline; (iv) members of the society have expressed different opinions about the case, some of them are sharp and aggressive[12];

(e) if the reporting restriction is lifted, it would have to be lifted for all proceedings in order to avoid speculations[13]. That would lead to wide and sharp discussions – even attacks, before trial. Secondly, some of the people who attended court had shown reckless disregard for order. The above will certainly bring mental pressure to witnesses who will need to appear in court in the future and they may even be daunted and deterred, thus leading to a serious undermining of a fair trial[14]; and

(f) on the other hand, since the case has already been widely reported, if anyone wants or needs to assist the defence in any way, eg, by giving evidence, they must have been heard about the case already and they would approach the defence if they wish. Therefore, there would be no prejudice to the defence in this regard. He did not see any other prejudice to the defence in case the application was refused and the defence had not to mention any[15].

Grounds of challenge

10. In the Form 86, the Applicant raises the following grounds of challenge:

• Ground 1: Error of law on s87A / Ultra Vires

It is submitted that in reaching the Decision, the Principal Magistrate mistakenly relied on a discretion he does not have under s87A, MO.

• Ground 2: Error of law in the exercise of his discretion

It is submitted that even if the court does have a discretion, the Magistrate erred in subverting or overlooking the principles of open justice. It is also submitted that in effectively requiring the defendant to give reasons to justify wishing for unrestricted reporting, the Magistrate subverted the fundamental principle of open justice, turning the right to a public trial into a privilege.

• Ground 3: Taking into account irrelevant considerations and ignoring relevant considerations

It is submitted that the Magistrate gave no consideration at all to the risk to the impartiality of potential jurors, which is the raison d'être of s87A, MO. Instead, he relied much on the conduct of the public and pressure on (prosecution) witnesses, which are entirely irrelevant. Moreover, the risk of disruption to court proceedings, which was neither raised by the prosecution nor the Applicant, was not substantiated by any evidence nor argued before the Magistrate. The risk of intimidating potential witnesses is neither real, nor linked to whether reporting restrictions are lifted or not. The Magistrate is also wrong to assume that there will be no prejudice to the defence just because the case was previously reported. Most detrimentally, the Magistrate gave no consideration at all of the importance of maintaining public confidence in the administration of justice, both locally and internationally.

• Ground 4: Wednesbury Unreasonableness

It is submitted that given the context of the case, the importance of open justice and the utter lack of any real risk to a fair trial that could be caused by reporting, the Decision is Wednesbury unreasonable even if the Principal Magistrate does have a discretion under s87A, MO.

Committal proceedings

11. As s87A, MO is specific to committal proceedings, in order to provide the context for consideration, it would be necessary for me to give a brief outline of committal proceedings in general.

12. First of all, criminal offences in Hong Kong are divided into summary offences and indictable offences: ‑

(1) Summary offences are criminal offences other than treason, or where the words “upon indictment” or “an indictment” appear in a relevant statute, or where an offence has been transferred to the District Court for trial under Part IV of the Magistrates Ordinance (see s14A(1) of the Criminal Procedures Ordinance, Cap 221 (“CPO”)).

(2) An indictable offence is an offence other than a summary one. It means a crime or offence for which a magistrate is authorized or empowered or required to commit an accused for trial before the District Court or the Court of First Instance (see s2, MO).

13. However, many indictable offences are also triable summarily in Magistrates’ Court. Where the offence is treason, or where the words “upon indictment” or “on...

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