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The summer of 2004 has proved to be a tumultuous period for press freedom in Hong Kong. Raids carried out by the Hong Kong Independent Commission Against Corruption (ICAC) on the newsrooms of seven Hong Kong newspapers were harshly criticised by the local and international communities. The action provoked even the US State department to comment. Then, in a dramatic
U-turn, the High Court set aside the search warrants under which the raids had been conducted to welcome applause from journalists, academics and the public. This is the story so far.
The ICAC was set up 30 years ago when corruption was rife in Hong Kong. The organisation is, and remains, entirely independent from government, including the police, having been incorporated to preserve public trust and confidence.
Freedom of the press has been a particularly sensitive issue recently in Hong Kong after the antagonism over Article 23. On 1 July 2004 a march of an estimated 500,000 people took place in Hong Kong, reflecting the public’s immense concern over legislation based on Article 23 of the Basic Law. If implemented, this will require Hong Kong to enact laws affecting freedom of the press. There is a palpable fear that the basic right of free speech is being eroded within the largely self-regulating capitalist province now forming part of communist China. The Operations Department (the investigative arm of the ICAC) only fuelled the voracity of the debate when, on 24 July 2004, it simultaneously raided the newsrooms of all seven newspapers. The New York-based Committee to Protect Journalists commented: “The ICAC used unnecessary and heavyhanded tactics that seem designed to harass and intimidate.”
Earlier in the same month, in the course of investigating allegations of share price-fixing in a listed company, the ICAC arrested nine people, including a secretary within the company under investigation. There was some dispute as to whether this secretary was held under the ICAC’s witness protection programme and, following a court hearing in chambers, the name of this woman appeared in the news reports of the newspapers. The ICAC, as a result, obtained search warrants and carried out the controversial raids. The resulting furore caused the Hong Kong Department for Justice to undertake an independent investigation.
While it is not the first time that the ICAC has raided a newspaper, the sheer magnitude of the raids is unprecedented in Hong Kong. Officers interviewed reporters and searched their offices and computers. The search even extended to some reporters’ homes. The ICAC sought disclosure of the source of the information on the basis that the leak breached witness protection laws.
The raids were widely condemned to be a disproportionate use of force, with “strong dismay” being voiced by the Newspaper Society of Hong Kong that it had set a “very bad precedent” and “seriously affected freedom of the press”. The rallying call was the protection of confidentiality of sources of information as paramount to effective journalism.
The search warrants were initially granted by Mr Justice Stone on condition that the materials seized would be sealed and the newspapers would be given the opportunity to challenge the orders and have the material returned. One of the seven newspapers made such a challenge, and on 10 August 2004 Mr Justice Hartmann in the High Court set aside the orders.
The ICAC initially had two ways of obtaining the source of the news reports, using either Section 84 or Section 85 of the Interpretation and General Clauses Ordinance (IGCO). The ICAC’s choice to use Section 85, as opposed to its less draconian counterpart Section 84, was heavily criticised by commentators. Section 84 requires an application to court for a ‘production order’ (a command to produce or allow access to the material). Under this section, the newspapers would have had seven days to comply – an eminently plausible outcome from a responsible press. However, the ICAC immediately resorted to compulsion by obtaining a Section 85 search and seizure order. Judge Hartmann, in setting aside the orders, agreed, seeing Section 85 as a “procedure of last resort”.
Sections 84 and 85 both contain safeguards to protect the relationship between journalist and source and are broadly similar to the provisions enabling the police in England and Wales to obtain production orders and search and seizure orders against journalists pursuant to the Police and Criminal Evidence Act 1984 (PACE). Judge Hartmann confirmed that both the PACE and the IGCO sought to balance the need for efficient investigation of crime with the need to protect the freedom of the press, and as such the IGCO ought to have been interpreted in line with the English authorities under the PACE. At the initial hearing, the ICAC had failed to provide Judge Stone with these English authorities, and Judge Hartmann stated: “If those authorities had been known to him… I think it highly unlikely that the orders would have been made.”
Commentators levelled criticism at the ICAC on the basis of its failure to request the voluntary disclosure of information from the newspapers. Judge Hartmann concurred with this view, finding that the ICAC had failed to exhaust all other avenues. He applied English case law (R v Leeds Crown Court ex parte Switlaski) to state that the ICAC should have been required to demonstrate that, had notice been given to the newspapers, there would have been a “real risk” or “substantial probability” that each and every journalist at all seven of the newspapers would have destroyed the material being sought. Judge Hartmann commented: “I fail utterly to see how this was demonstrated.”
The original decision of Judge Stone to place the public interest of investigating the source of the leak higher than the public interest of the anonymity of journalistic sources was consistent with traditional English case law, interpreting Section 10 of the Contempt of Courts Act 1971. This section was enacted to protect journalists from being required to disclose the source of information contained within a publication, except where it is necessary in the interests of justice, national security or the prevention of disorder or crime. Protecting the journalist’s source has consistently been cast aside by judges in favour of a wide interpretation of these exceptions.
However, Judge Hartmann felt that the IGCO must be interpreted through the prism of Article 27 of Hong Kong Basic Law, which states that “Hong Kong residents shall have freedom of speech, of the press and of publication.” He quoted from the well-known European Court of Human Rights judgment of Goodwin v UK, and the English Court of Appeal judgment of Ashworth Hospital Authority v MGN, advancing the proposition that the appropriate test under the relevant sections of the IGCO should have been whether there was an overriding public interest, amounting to a pressing social need, to which the need to keep press sources confidential should give way. This is a bold endorsement of the need to place greater emphasis on respect for freedom of the press in Hong Kong.
The ICAC has indicated its intention to appeal the High Court’s latest decision, with its credibility and public confidence in the organisation having been seriously challenged. There must be every prospect, given the importance of the issue to both sides of the debate, that whatever the outcome, the matter will end up in Hong Kong’s Court of Final Appeal.
It is not possible to predict, in the wider debate surrounding freedom of speech in Hong Kong, the impact that these events will have. With the judgment of Judge Hartmann, confidence has been substantially restored that a robust and independent judiciary remains willing and able to intervene in circumstances where manifest or potential abuses of power come to the court’s attention. We await the verdict of the appeal to see if such confidence is justified. What is certain is that the far-reaching implications of this case offer food for thought for all jurisdictions supporting freedom of the press.
Keith Brandt is a partner at Hammonds and senior partner of Li Brandt & Co (in association with Hammonds), Hong Kong. He was assisted on this article by commercial dispute resolution solicitor Lucy Broadhurst