Thursday, January 20, 2011

Hong Kong’s Antiquated Press Laws and the Kissel Retrial

Eighteenth-century contempt laws get in the way of the public’s right to know

The Hong Kong retrial of accused murderer Nancy Kissel is again shedding light on the isolated world of wealthy expats and the sordid details of that fateful night in 2003 when her banker husband died from multiple blows to the head. In the process it is also exposing Hong Kong’s antiquated and absurd laws regarding press coverage of criminal trials.

If you scanned the Hong Kong media last week looking for a detailed curtain-raiser predicting the strengths and weaknesses of the prosecution and defense, you didn’t find it. This staple of news coverage – complete with recaps of testimony from preliminary hearings and quotes from legal experts on what evidence would be most damning or exculpatory – doesn’t exist in the territory. It is illegal. You also didn’t see any fresh interviews with potential witnesses or investigative reports digging up new angles. That’s just asking for a letter from the Secretary for Justice.

As a former British colony, Hong Kong still applies many old United Kingdom laws, including an ancient form of contempt of court in which a person, often an editor or media company executive, can be fined or imprisoned for interfering with a criminal trial by publishing facts or commentary which pose a “real risk” of being seen or heard by a juror and prejudicing the trial. Proof that any jury member read or viewed the item is not necessary; the risk is enough. Plus, there’s no requirement that the author intended to interfere with the proceedings.

Consequently, a blogger or newsreader in Hong Kong could be jailed for disseminating a truthful and good-faith report that was never seen by a single juror and had no impact. The contempt rules mete out punishment to real people based on hypothetical harms. While the reasoning behind the rule is laudable – criminal defendants are entitled to a fair trial in which jurors base the verdict solely on what occurs in the courtroom – a law which could yield such a perverse result should be scrapped.
Contempt by publication is a relic, more suited to 18th century London than modern Hong Kong, with its multiplicity of electronic news sources. The law presumes that a small number of media outlets are scoured by the populace for any mention of an ongoing trial. In one judgment, the High Court based a contempt finding against a magazine on a sentence published in the middle of page 52.

While the presumption of the all-seeing juror may have made sense in a small media ecosystem, it is hopelessly outdated in a world where audience attention is fractured among hundreds of television channels and millions of Web sites, not to mention Facebook, the iPad and the daily activities of working and living.

The courts have been particularly sensitive to reports that were published immediately before a jury was empanelled, and this legal reality may have accounted in part for the conservative coverage of the Kissel case last week. But Kissel 2.0 demonstrates the absurdity of the rules. The details of the first trial are a Baidu or Google search away, the appellate decisions are online and reveal a plethora of facts, and stores all over Hong Kong stock the two English-language books written about the incident. Why should anybody be forced to worry about reporting on a prosecution that has been so thoroughly researched and discussed?

The losers under the current system are the people of Hong Kong, whose knowledge of the criminal prosecutions brought by their government is needlessly restricted. Cutting-edge blogging of criminal trials – in which real-time coverage of courthouse events could be mixed with incisive commentary, interviews and investigative reporting of the underlying allegations – seems impossible to reconcile with the current regime. The law is hindering the natural evolution of legal reporting.

In opening the re-trial, presiding Justice Andrew Macrea instructed the jury to disregard anything they had previously learned about the case. This instruction was exactly correct. In the United States and other jurisdictions, the defendant’s right to a fair trial is protected by examining the jury members for bias. The judge reminds jurors to avoid media accounts or discussions of the case, to keep an open mind and to base their decisions only upon courtroom testimony and argument. In rare cases, the jurors are sequestered in a hotel.

Hong Kong media should be free to report freely about ongoing criminal trials, with a possible exception regarding the identity of endangered informants. The defendant’s rights can be protected by jury screening and, in instances of false reports, by private defamation actions. The archaic threat of a contempt of court citation for reporting the truth or voicing an opinion should be removed.

By Paul Karl Lukacs legal affairs correspondent for Asia Sentinel.

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