Kissel Retrial and Hong Kong's Antiquated Press Laws

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.

Paul Karl Lukacs is legal affairs correspondent for Asia Sentinel.