David S. Ma (LLM Stanford) has experience in copyright, trademark, privacy, entertainment law and is interested in human rights and civil rights.
By David S. Ma
In the second half of 2019, journalists reporting on massive protests against the now-withdrawn “extradition bill” faced obstruction, arrests, excessive force, and violence from the Hong Kong police, which in some cases resulted in serious injuries. The police ignored or denied the complaints by journalists, and in one instance abruptly ended a press conference to avoid confrontation with journalists.
These clashes brought into question whether state actions are diminishing freedom of the press in Hong Kong and has received attention from the judiciary, the privacy commissioner, and journalism organizations.
Hong Kong Journalists Association v Commissioner of Police
One of the issues was that certain units of the police force did not display a unique identification number. As such, it was not possible for the public to identify the perpetrators of police misconduct. The Hong Kong Journalists Association (“HKJA”) applied for leave to bring judicial review against the Commissioner of Police and the Secretary for Justice on their below decisions:
- the failure of the Hong Kong Police Force to facilitate, and not to hinder, lawful journalistic activities in the course of public order events on and after 12 June 2019, and the failure of the Commissioner of Police to address a catalogue of operational deficiencies in that connection (“Decision 1”);
- the failure of the Commissioner of Police to ensure the wearing of clearly visible individual identification by uniformed and plainclothes police officers exercising public power in the course of public order events on and after 12 June 2019 (“Decision 2”); and
- the failure of the Hong Kong Government to make available an independent mechanism to investigate complaints of ill-treatment by police officers (“Decision 3”).
Articles 7 (no torture) and 19 (freedom of expression) of the ICCPR are implemented in Hong Kong through Articles 3 and 16 of the Hong Kong Bill of Rights (“HKBOR”). In addition, Articles 27 and 28 of the Basic Law provide for, inter alia, freedom of the press and of the person.
In relation to Decision 1, the Court of First Instance commented that HKJA was “unorthodox” to seek declaratory reliefs without seeking to establish any fact. Judicial review was not the appropriate forum to resolve the substantial disputes of facts relating to the alleged police actions. Instead, ordinary writ actions should have been commenced against the police to claim damages and declaratory relief specific to the facts of the case. As the parties could not agree on the facts or issues, the court was not in the position to grant the declaratory relief based on any “assumed facts” or matters with “prima facie evidence”. The court granted leave to HKJA to apply for judicial review in respect of Decision 1, but refused to grant the declarations sought.
In relation to Decisions 2 and 3, the court similarly stated that it was not appropriate for it to make any specific findings of fact in respect of the allegations of police brutality. However, it was clear that there were many instances of arguable claims of ill-treatment by police officers, which, if proved, would constitute breaches of the HKBOR and would trigger the positive investigative duty on the part of the Government. Accordingly, the court granted the following declarations in relation to Decisions 2 and 3:
- the Commissioner of Police violated Article 3 of the HKBOR by failing to establish and maintain an effective system to ensure that every police officer deployed in carrying out non-covert duties wore and prominently displayed a unique identification number or mark; and
- the existing complaints mechanism was inadequate to discharge the duty of the Government under Article 3 of the HKBOR to “establish and maintain an independent mechanism capable of conducting effective investigation into complaints of suspected ill-treatment by police officers”.
The Police is considering appealing against the judgment in relation to Decisions 2 and 3.
Privacy Commissioner Investigation Report
In December 2019, the police asked a reporter who was covering a protest via livestream to produce his Hong Kong Identity Card. The police then displayed the Identity Card in front of the livestreaming camera for around 40 seconds for no reason. The name, photo, date of birth, and Identity Card number could be seen by viewers of the livestream. The Privacy Commissioner for Personal Data found that the police contravened the Personal Data (Privacy) Ordinance.
Other Police Actions
In September 2020, the police revised the definition of “Media Representatives” in the Police General Orders, which was objected by local and international journalism organizations. The revision in effect invalidated the press passes of hundreds of freelancers and student journalists.
In November 2020, a journalist was arrested for allegedly making a false statement when applying for a vehicle registration search. The search was in relation to the production of a documentary which questioned police conduct surrounding an incident. The controversy was that the recently updated search system only included three grounds of application, and journalism was not one of them. The journalist has pleaded not guilty, and the case is pending trial. Further, from January 2021, vehicle owners upon subscription will be notified of the particulars of persons conducting searches on their vehicles. The Government indicated it was considering extending the same notification mechanism to company search, land search, and marriage record search.
The HKBOR mandates an effective police identification system and a transparent independent investigation mechanism, both of which can reinforce police accountability. It is absurd for the police to mishandle the reporter’s identity document or arrest a journalist for conducting a vehicle search. These bizarre incidents are indicative of the derogating press freedom in Hong Kong as well as the deteriorating relationship between journalists and the authorities. Courts will need to be vigilant in upcoming cases to distinguish unwarranted state actions from legitimate legal enforcement in order to preserve freedom of the press in Hong Kong.