Introduction

In the recent decision of HKSAR v Wu Wing Kit and Ye Fang CACC No. 299 of 2014, the Court of Appeal (the “Court”) was asked by the Prosecution to grant an order directing the media not to publish any description of these proceedings (“this Trial”) until the conclusion of the ongoing criminal trial in the Court of First Instance before Anthea Pang J and a jury in HCCC 83/2014 (“HCCC 83/2014 Trial”) (“Order”).   This article will discuss the legal basis for the court to grant such order.

Background

In January 2016, the Court ordered the issue of a general written “Warning” against the publication of any material that might prejudice this Trial; and made an order prohibiting publication of this Trial until the conclusion of the HCCC 83/2014 Trial.  Upon the conclusion of the HCCC 83/2014 Trial on 29 April 2016, the Order expired.

In this Trial, Count 1 of the indictment stated that on 11 and 12 March 2010 the 1st appellant had dealt with $68.95 million received into the client account of Fred Kan & Co (“FKC”) from Goldmate Securities (“Goldmate”), knowing or having reasonable grounds to believe that the monies were the proceeds of an indictable offence.  Count 2 of the indictment stated that the 2nd appellant had dealt with those monies when they were transferred from the client account of FKC to her own bank account on 12 March 2010.  In the HCCC 83/2014 Trial, Count 3 of the indictment stated that Jack Chen had dealt with more than $85 million in the period 2 March to 13 July 2010, including the same $68.95 million on its receipt into the bank account of Goldmate on 2 March 2010, knowing or having reasonable grounds to believe that the monies were the proceeds of an indictable offence.  The 1st accused in the HCCC 83/2014 Trial, Jack Chen, is the husband of the 2nd appellant, Ye Fang in this Trial.

The Prosecution submitted that the prejudice to the integrity of this Trial lay in not only a common factual background but also in the fact that some of the monies it was alleged by Count 3 in the HCCC 83/2014 Trial that Jack Chen had dealt with, knowing or having reasonable grounds to believe that they were the proceeds of an indictable offence, were monies that it was alleged that the 1st and 2nd appellants in this Trial had also dealt with in Counts 1 and 2 respectively.

Issue

The issue was whether the Court has power to direct the media to postpone reporting any description of this Trial until the conclusion of the HCCC 83/2014 Trial.

The Prosecution submitted that the court has power at common law to postpone the reporting of court proceedings until after a certain date if the immediate reporting would entail a substantial risk of prejudice to the administration of justice either in the proceedings concerned or in other pending or imminent proceedings.  Although the court has power to suspend publication, such a restriction on reporting should only be exercised in exceptional circumstances because the public interest is best served by a full and accurate reporting of open criminal trials.  The burden of establishing such exceptional circumstances lies upon those seeking an order restricting the fundamental principle of publicity.

The Prosecution also emphasized that Article 87 of the Basic Law states that “In criminal or civil proceedings in the Hong Kong Special Administrative Region, the principles previously applied in Hong Kong and the rights previously enjoyed by parties to proceedings shall be maintained.”  Article 10 of the Hong Kong Bill of Rights states that “…In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice…”  The above legislations provide for the guarantee of the right to a fair trial, imposing a positive duty on the court to promote and protect such right.  Therefore, the court has jurisdiction to make a non-publication order.

The Court’s Decision

The Court noted the conflicting cases of various jurisdictions and commented that whether or not the Hong Kong common law provided for an inherent power of the court to make an order for the temporary prohibition of publication of court proceedings was disputable.  However, as the Basic Law and the Bill of Rights Ordinance provided the Court with a power to make such order sought, it was not necessary for the Court to decide whether or not that power exists in the Hong Kong common law.  Therefore, the Court was satisfied that it had power to make an order prohibiting temporarily the publication of any report of this Trial pending the conclusion of the trial of HCCC 83/2014, and made the Order accordingly.

Conclusion

This case reinstates the court’s power, pursuant to the Basic Law and the Bill of Rights Ordinance, to protect the right to a fair trial of defendants in other proceedings by making an order prohibiting temporarily the publication of any report of the present proceedings pending the conclusion of other proceedings.  This power remains an important tool to safeguard justice to be done ultimately when public interest cannot be best served under open court in exceptional circumstances.

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.