By: Our Correspondent

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.