CHOW HANG TUNG v. SECRETARY FOR JUSTICE

Press Summary (English)

Press Summary (Chinese)

HCAL 401/2022

[2022] HKCFI 2225

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 401 OF 2022

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JUDGMENT

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Introduction

1.  By way of judicial review, the Applicant[1] seeks to challenge the decision of the Principal Magistrate Mr Peter Law (“Magistrate”) made on 25 April 2022 (“Decision”) refusing to lift reporting restrictions for committal proceedings upon her application made under s87A(2) of the Magistrates Ordinance (Cap 227) (“MO”).  When this court granted leave to the Applicant for her proceeds with this judicial review, direction was also given that the Secretary for Justice (“SJ”) be added as the Respondent[2].

The issues

2.  The issues in this review are within a narrow compass, namely: (i) whether the first “shall” in s87A(2), MO bears its plain and literally meaning so that it imposes a mandatory duty on the Magistrate to lift the reporting restrictions upon an application by an accused pursuant to  that subsection; (ii) if the answer to (i) is in the negative so that the Magistrate has a discretion, whether he had taken into irrelevant considerations or had failed to take into account relevant considerations in coming to the Decision.

3.  On behalf of the Applicant, Mr Dykes (with him, Mr Wong) submits, in a nutshell, that s87A means what it says, to the effect that reporting restrictions must be lifted if an application is made requiring that the default position under section 87A(1) should no longer apply.  Therefore, the magistrate erred in supposing that a discretion existed.  It is further submitted that even if such a discretion did exist, the Magistrate’s reasoning was totally in opposition to the Principles of Open Justice that govern the exercise of judicial power in the context of restricting access to, or reporting of, court proceedings. 

4.  On the other hand, Mr Ma (with him, Mr Tang) submits, in a nutshell, that purposively and properly construed and in particular having regard to the importance of ensuring a fair trial, s87A(2) carries a meaning which differs from its plain and natural meaning in that it confers a discretion on examining magistrates presiding over committal proceedings whether or not to lift the general reporting restrictions imposed by s87A(1).  Furthermore, it is submitted that the Magistrate had properly exercised his discretion in the matter. 

Basic Facts

5.  The facts, which are not in dispute, are as follows.  The Applicant, together with the three Interested Parties are prosecuted for one charge of “incitement to subversion”^[3].  The prosecution intends to seek a committal of the defendants to the Court of First Instance for trial and for that purpose the committal bundles were served on the defence in February 2022.

6.  On 14 February 2022, which was the first appointed Return Day, the Applicant made an application to the Magistrate asking that the reporting restrictions under s87A(1), MO (which is specific to committal proceedings) be lifted.  Subsequent court appearances were fixed and re-fixed for argument on several issues.  Eventually, on 25 April 2022 the aforesaid application was argued^[4] , immediately after which the Magistrate made the Decision and gave oral reasons for it.

7.  On 30 May 2022, the Applicant filed her Form 86^[5] applying  for leave for judicial review.  On 31 May 2022, the Applicant elected for a preliminary inquiry (“PI”) the hearing of which is to commence on 2 September 2022.  So far, none of the defendants have been committed to the High Court. 

8.  As aforesaid, leave for judicial review was granted by this court on 2 June 2022 and at the same time directions were given for the service of the papers on the Secretary of Justice and all interested parties and also for the filing of affirmations and skeleton arguments (if so advised).  It is noted, however, that none of the interested parties seeks to file anything or to be heard in the present judicial review^[6].  I take it, therefore, that the Interested Parties all take a neutral stand in the matter.

The Magistrate’s reasons for the Decision

9.  The Magistrate’s reasons, given orally in Cantonese, can be found in the transcript of his ruling^[7]. He made the following points:

(a)  the concept of fair trial, which is provided for in the Basic Law (BL), the Hong Kong Bill of Rights Ordinance[8] (BOR) and the NSL, is the cornerstone of our legal system[9];

(b)  s87A, MO, as an exception to the general principle which allows reporting of court proceedings, was enacted to realise the spirit of fair trial[10];

(c)  the court has an implied power of discretion when considering application made pursuant to s87A(2)[11];

(d)  the criminal case has several unique features: (i) it is a sensational case that has attracted much attention, both locally and overseas; (ii) the case had been widely reported by the media; (iii) a great number of members of public attended in court, some of them shouted in court, and that presented problems in maintaining court order and discipline; (iv) members of the society have expressed different opinions about the case, some of them are sharp and aggressive[12];

(e)  if the reporting restriction is lifted, it would have to be lifted for all proceedings in order to avoid speculations[13]. That would lead to wide and sharp discussions – even attacks, before trial.  Secondly, some of the people who attended court had shown reckless disregard for order.  The above will certainly bring mental pressure to witnesses who will need to appear in court in the future and they may even be daunted and deterred, thus leading to a serious undermining of a fair trial[14]; and

(f)  on the other hand, since the case has already been widely reported, if anyone wants or needs to assist the defence in any way, eg, by giving evidence, they must have been heard about the case already and they would approach the defence if they wish.  Therefore, there would be no prejudice to the defence in this regard.  He did not see any other prejudice to the defence in case the application was refused and the defence had not to mention any[15].

Grounds of challenge

10.  In the Form 86, the Applicant raises the following grounds of challenge:

•  Ground 1: Error of law on s87A / Ultra Vires

It is submitted that in reaching the Decision, the Principal Magistrate mistakenly relied on a discretion he does not have under s87A, MO. 

•  Ground 2: Error of law in the exercise of his discretion

It is submitted that even if the court does have a discretion, the Magistrate erred in subverting or overlooking the principles of open justice.  It is also submitted that in effectively requiring the defendant to give reasons to justify wishing for unrestricted reporting, the Magistrate subverted the fundamental principle of open justice, turning the right to a public trial into a privilege. 

•  Ground 3: Taking into account irrelevant considerations and ignoring relevant considerations  

It is submitted that the Magistrate gave no consideration at all to the risk to the impartiality of potential jurors, which is the raison d'être of s87A, MO.  Instead, he relied much on the conduct of the public and pressure on (prosecution) witnesses, which are entirely irrelevant.  Moreover, the risk of disruption to court proceedings, which was neither raised by the prosecution nor the Applicant, was not substantiated by any evidence nor argued before the Magistrate.  The risk of intimidating potential witnesses is neither real, nor linked to whether reporting restrictions are lifted or not.  The Magistrate is also wrong to assume that there will be no prejudice to the defence just because the case was previously reported.  Most detrimentally, the Magistrate gave no consideration at all of the importance of maintaining public confidence in the administration of justice, both locally and internationally. 

•  Ground 4: Wednesbury Unreasonableness

It is submitted that given the context of the case, the importance of open justice and the utter lack of any real risk to a fair trial that could be caused by reporting, the Decision is Wednesbury unreasonable even if the Principal Magistrate does have a discretion under s87A, MO. 

Committal proceedings

11.  As s87A, MO is specific to committal proceedings, in order to provide the context for consideration, it would be necessary for me to give a brief outline of committal proceedings in general. 

12.  First of all, criminal offences in Hong Kong are divided into summary offences and indictable offences: ‑

(1) Summary offences are criminal offences other than treason, or where the words “upon indictment” or “an indictment” appear in a relevant statute, or where an offence has been transferred to the District Court for trial under Part IV of the Magistrates Ordinance (see s14A(1) of the Criminal Procedures Ordinance, Cap  221 (“CPO”)). 

(2) An indictable offence is an offence other than a summary one.  It means a crime or offence for which a magistrate is authorized or empowered or required to commit an accused for trial before the District Court or the Court of First Instance (see s2, MO). 

13.  However, many indictable offences are also triable summarily in Magistrates’ Court.  Where the offence is treason, or where the words “upon indictment” or “on indictment” appear and it is not further stated that the offence can be tried or is punishable either summarily or on indictment, then the offence can only be tried on indictment: s14A(2), CPO.  As for an offence which is triable either way, the choice of venue would be a prosecutorial decision solely for the Secretary for Justice: BL 63; see also Chiang Lily v Secretary for Justice^[16]; and Tong Ying Kit v Secretary for Justice^[17]. 

14.  MO contains detailed provisions regarding trial by a magistrate of indictable offences and the transfer or committal, as the case may be, from the Magistrates Court of indictable offences to the District Court or the Court of First Instance. 

15.  By NSL 41(3)^[18], the offence with which the Applicant is charged is indictable.  Accordingly, her criminal case was first dealt with in the Magistrates’ Court in committal proceedings in accordance with the procedures laid down in Part III of the Magistrates Ordinance: Attorney General v O’Donnell^[19]. As pointed out by Mr Dykes in his skeleton argument, except in cases where the prosecution prefers a voluntary bill, committal proceedings are a part of the process of trial on indictment.  It should also be noted that committal proceedings may include a PI which is defined in s71A, MO somewhat circularly as ‘proceedings pursuant to an election by the accused to have a charge against him heard at a preliminary inquiry’. 

16.  At common law, a magistrate upon a preliminary inquiry into a charge of an indictable offence has a duty to determine whether there is a case against the accused which ought to be sent for trial before a judge and a jury: R v Carden^[20]. As said the then Attorney General at the Second Reading of the “Criminal Procedure (Preliminary Proceedings on an Indictable Offence) Bill 1983^[21]:

“Traditionally, it has been regarded as an important safeguard against unfair prosecution upon flimsy or incomplete evidence for all serious criminal cases to be the subject of a preliminary investigation before the magistrates. The oral and documentary evidence said to support the charges had to be presented to the Magistrate in the presence of the accused person who could test it by cross­ examination and answer it by argument or evidence of his own. Only if a Magistrate was satisfied that there was a prima facie case to answer would the accused person be committed to stand trial in a superior court.”

This jurisdiction, however, has been modified extensively by the reform introduced through the aforesaid Bill[22], the purpose of which, according to the Attorney General, is to[23]:

“contribute to the saving of time and unnecessary expense in the administration of criminal justice.”

17.  After the legislative reform in 1983, when an accused appears or is brought before a magistrate upon a charge of an indictable offence the magistrate “may, and shall if the prosecutor so requires”, appoint a day (return day) for the continuation of the committal proceedings: s80A(1). Since both “may” and “shall” appear together, there can be little doubt that the latter implies a mandatory duty on the part of the presiding magistrate to appoint a return day if and when the prosecution so requires. 

18.  By s80A(4)(c), upon first appointing the return day, the presiding magistrate “shall” inform the accused, among other things, that on the return day, he will have the right to require a PI and, if he does so require, he may, at the PI, call witnesses to give evidence on his behalf. 

19.  Not less than 7 clear days before the return day, or such shorter period as the accused may consent to, the prosecutor “shall serve” on the accused the documents listed in s80B(1)(a)-(d) (commonly known as the “committal bundle”).  Again, this requirement for the prosecution to serve the committal bundle on the defence in a timely manner appears to be mandatory, as the failure of which would result in an adjournment in the absence of the accused’s consent: s80B(6). 

20.  On the Return Day, the prosecutor “shall”, if the requirements of s80B(1) are satisfied, hand into court the original of the committal bundle.  The presiding magistrate “shall” then inform the accused that the prosecutor seeks his committal; and unless the accused elects to have the charge(s) heard at a PI he will be committed without such an inquiry.  The accused “shall”, thereupon, be asked whether or not he elects a PI; and the accused may make such an election. 

21.  By s80C(2), if the accused elects, or is deemed to have elected^[24], a PI, then the magistrate “shall”—

(a)      inform the accused that at the inquiry a witness for the prosecution whose statement was served on him under section 80B(1) will not be called to give evidence and his written statement will be received in evidence unless the accused, either then or not less than 7 days before the inquiry, notifies the magistrate and prosecutor of his desire to have the witness called; and

(b)     ascertain, without prejudice to any right of the accused to give notice thereafter, what prosecution witnesses the accused wishes to have called at the hearing and whether or not the accused wishes to call any witnesses of his own,

and thereafter the PI shall be conducted in accordance with the provisions of ss81[25], 81A[26], 82[27], 83[28], 84 [29]and 85[30].  Dates for hearing of the PI would be fixed. 

22.  At this juncture, it is pertinent to note that when there is a PI, s80 becomes relevant.  The provision says^[31],

“80. Place where examination taken not an open court

The room or building in which a magistrate conducts a preliminary inquiry shall not be deemed an open court for that purpose; and it shall lawful for the magistrate, in his discretion, to order that no person shall have access to or be or remain in such room or building without the consent or permission of the magistrate, if it appears to him that the ends of justice will be best answered by so doing. ”

 (Emphasis supplied)

23.  This section was considered in R v B Suttill Esq, Magistrate, ex parte Asiaweek Ltd & Ors[32]. Kemspter JA prefaced his judgment by referring to the famous dictum of Lord Halsbury in Scott v Scott[33]:

“…It may often be necessary, in order to attain its primary object, that the Court should exclude the public … As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. …”

 (Emphasis supplied)

In the latter part of his judgment, Kempster JA said that s80 was calculated to demonstrate that the power of the magistrate was to confine the number of persons attending a PI to those who could reasonably be accommodated in his court; to exclude the unruly; on occasion to protect the anonymity of prosecution witnesses and to sit in camera when the security of the territory might otherwise be impaired was not open to question.  Two considerations of public policy fell to be considered by the examining magistrate, namely the provision of a jury free of bias or prejudice and the interest of the public in the manner and quality of the administration of justice.   In my view, based on the judgment of Kempster JA, an examining magistrate exercising his discretion under s80 would be required to conduct a balancing exercise, in which the aforesaid “principle of necessity” expounded by Lord Halsbury in Scott v Scott should not be ignored or overlooked.

24.  Return to committal proceedings in general, in case the accused does not elect, and is not deemed to have elected to have a PI, then by s80C(3), the magistrate “shall” inform him that—

(a) he is not obliged to say anything in respect of the charge but that he may plead guilty to the charge and that such a plea will result in his being committed for sentence on that charge;

(b) unless he pleads guilty to charge, he will forthwith be committed for trial on that charge without an inquiry; and

(c) after committal for trial he has the right to apply once only to a judge for discharge on the grounds that there is no prima facie case against him. 

25.  After complying with the above, by s80C(4), the magistrate “shall” then—

(a) except where the accused is a juvenile or the offence is punishable by death, ascertain if the accused desires to plead guilty to the charge and, if he does so desire, he or she would be committed to the Court of the First Instance for sentence pursuant to s81B; and

(b) if the accused is a juvenile or if the offence is punishable by death or if the accused does not then plead guilty, then he or she would be committal to the Court of First Instance for trial pursuant to s81B(2) (commonly referred to as a “straight committal” in contrast to a committal after a PI). 

26.  If the accused elects to plead guilty in the committal proceedings, then by s81B(2), the magistrate, before he accepts the plea “shall”—

(a) require the prosecutor to outline to the accused, to the satisfaction of the magistrate, the alleged facts upon which the charge is based;

(b) explain to the accused the offence with which he is charged and the ingredients which at law constitute such offence; and

(c) record any statement made by the accused in pleading guilty to the charge and that the offence and the ingredients which at law constitute the offence were explained to the accused,

and, if the magistrate is satisfied that the plea is made voluntarily and with an understanding of the nature of the charge, he “shall” commit the accused for sentence.  It is pertinent to note that s86(1)(c) requires the magistrate to sign a certificate saying that he has observed the requirements of s81B(2) and it also provides that the certificate “shall” be transmitted to the Registrar as soon as may be after the committal. This shows that the aforesaid requirements stipulated in s81B(2) are mandatory.

27.  In case the accused is committed for trial, whether after a straight committal or a PI, s85A requires that the magistrate “shall”:

(a)  issue his warrant committing the accused to prison until delivery by due course of law, provided that he may admit the accused to bail;

(b)  inform the accused, unless he is already in receipt of legal aid, of his right to apply for legal aid;

(c)  give the accused the alibi warning[34]; and

(d)  in case of a straight committal, inform him that he has the right to apply to a judge for discharge on the grounds there is no prima facie case against him[35]. 

By s86(1)(a)-(b), (d)-(e), there “shall” be transmitted to the Registrar as soon as may be after the committal of the accused, the written charge, the original committal bundle or depositions (as the case may be) and a certificate signed by the magistrate stating that he has observed the requirements of s85A.  Again, this requirement of a certificate shows that the things that the magistrate is required to do under s85A are mandatory.

28.  From all the above, it is clear that a major (if not dominant) purpose of the various procedural safeguards described above is to ensure that the accused is informed of his rights and what is going to happen.   The requirement that the accused shall have the committal bundle served on him at least 7 days before the actual committal (in the absence of consent to the otherwise) is to enable him to obtain timely legal advice and to make an informed decision whether to elect a PI or to consent to a straight committal.  As the Attorney General explained[36]:

“It is recognized that at that early stage of electing whether to bow to the inevitability of a trial or whether to require the prosecution to present their case to the Magistrates in the traditional way, the accused person needs legal advice. For the first time therefore in the Magistrates' Court, Legal Aid is to be made available to accused persons at this early stage of the criminal process so that they may be advised in each case whether or not the dossier of evidence tendered by the prosecution discloses a prima facie case and whether or not anything can be gained by testing it before the magistrate. If past experience is a guide, it is anticipated that in the vast majority of cases the accused person will be advised to assent to the new procedure. ”

29.  From the court’s experience, ever since the 1983 reform the vast majority of criminal cases committed to the Court of First Instance for trial are by way of straight committal which does not require any live witness (whether for prosecution or defence) to give evidence in committal proceedings.  For committal proceedings without a PI, the role of committing magistrates becomes largely administrative in that they would not be required to consider the evidence of the charge.  In R v Horsham Justices, Ex parte Farquharson[37], a similar observation was made by Ackner LJ as regards the position in UK.

Section 87A, MO

30.  Insofar as it is relevant to the present judicial review, s87A, MO provides as follows:

“87A. Restrictions on reports of committal proceedings

(1) No person shall publish in Hong Kong a written report, or broadcast in Hong Kong a report, of any committal proceedings in Hong Kong containing any matter other than that permitted by subsection (7).

(2) Notwithstanding subsection (1), a magistrate shall, on an application for the purpose made with reference to any committal proceedings by the accused or one of the accused, as the case may be, order that subsection (1) shall not apply to reports of those proceedings, and any such order shall be entered in the Magistrate’s Case Register.

(3) If the accused is not represented at any preliminary inquiry by counsel or by a solicitor, the magistrate shall, immediately before taking depositions of witnesses, explain to the accused the restrictions on reports of committal proceedings imposed by subsection (1) and inform him of his right to apply to the court for an order removing those restrictions.

(4) Where a magistrate has made an order under subsection (2) removing the restrictions on reports of committal proceedings and has adjourned those proceedings to another day, he shall, at the beginning of the adjourned hearing of the proceedings, state that the order has been made.

(5) Notwithstanding subsection (1) a report of committal proceedings containing matter other than that permitted by subsection (7) may be published or broadcast—

(a) where the magistrate determines not to commit the accused for trial, after he has so determined;

(b) where the magistrate commits the accused or any of the accused for trial, after the conclusion of his trial or, as the case may be, the trial of the last to be tried.

(6) Notwithstanding subsection (1), where at any time during committal proceedings the magistrate assumes power to deal with the offence summarily under section 91 or 92, a report of so much of the committal proceedings containing any such matter as takes place before the magistrate assumes such power may be published or broadcast, after the magistrate has assumed power, as part of a report of the summary trial.

(7) A report of committal proceedings published or broadcast without any order under subsection (2) and before the time specified in subsections (5) and (6) may contain—

(a) the identity of the court and the name of the magistrate;

(b) the names, addresses, occupations and ages of the parties and witnesses;

(c) the offence, or a summary thereof, with which the accused is charged;

(d) the names of counsel and solicitors engaged in the proceedings;

(e) any decision of the magistrate to commit the accused for trial, and any decision of the magistrate on the disposal of the case of any defendants not committed;

(f) where the magistrate commits the accused for trial, the charge, or a summary thereof, on which he is committed and the court to which he is committed;

(g) where the committal proceedings are adjourned, the date and places to which they are adjourned;

…

(i) whether legal aid was granted to the accused.

…

(10) Subsection (1) shall be in addition to, and not in derogation from, the provisions of any other Ordinance with respect to the publication of reports and proceedings of magistrates’ and other courts.”

(Emphasis supplied)

31.  It should be noted that, by s86(1)(f), where the magistrate has made an order under s87A(2) (“the lifting order”), a statement to that effect “shall” be transmitted to the Registrar as soon as may be after the committal of the accused.  This requirement, in my view, highlights the importance of having a proper record of the lifting order if one is made.

32.  Before turning to the case law, some initial observations can be made at this juncture:

(1)  the reporting restrictions imposed by s87A(1) apply only to “committal proceedings”;

(2)  by s87A(10), the restriction imposed by s87A(1) is in addition to, and not in derogation from, other similar statutory restrictions.  One such example would be s9P of the Criminal Procedure Ordinance, Cap 221, which restricts reporting of bail proceedings[38];

(3)  both “shall” and “may” appears several time in various places throughout the section.  Putting aside for the moment the dispute about the meaning of the first “shall” in s87A(2) (which is the subject matter of this judicial review), there can be little doubt that on every other occasion when “shall” is used in the section in contrast to “may”, it is used in a mandatory rather than permissive sense: s86(1)(f), MO.  This respective usage of “shall” and “may”, as we have seen, is consistent with their usage in other sections in MO about committing proceedings; and 

(4)  Since committal proceedings include a PI, if the accused elects one, then both s87A and s80 would be relevant.

33.  The provisions of s87A, which were modelled on s3 of the Criminal Justice Act 1967 of the UK (“the 1967 Act”), were first introduced by the Magistrates (Amendment) Bill 1971[39]. As to its purpose, the then Attorney General, moving the second reading of the Bill on 2 December 1970, had the following to say,

“The object, Sir, of these restrictions is to prevent potential jurors from reading details of the prosecution case, as it comes out in the committal proceedings, and from forming a prejudice against he accused. However, there may be occasions on which publicity is of some benefit to the accused, for instance if he cannot trace a witness who might see a newspaper report and come forward to give evidence as a result. Therefore, the accused is given this right to apply for an order by the magistrate removing the restrictions, though the prosecution does not have any similar right.”

(Emphasis supplied)

Thus, the main purpose of the section is to protect an accused from pre-trial adverse publicity which may affect the future jury.  For this reason, the accused, not the prosecution, is given the right to waive this protection.   

Applicant’s case authorities 

34.  Mr Dykes starts with the common law principle, which he described as “unquestioned”, that justice must not only be done, but seen to be done: Scott v Scott, ante.  It is now recognized that, subject to some well-recognised exceptions, the principles of open justice require that the contents of a public hearing can be fully reported: AG v Leveller Magazine Ltd [40]; R (Mohamed) v Foreign Secretary (No.  2)[41]; Al Rawi v Security Service[42]; and ATV Ltd v Communications Authority [43]. Against this backdrop, Mr Dykes continues and relies on the following English case authorities on the 1967 Act which, he submits, support the proposition that the lifting of reporting restrictions is mandatory at the instance of the accused.    

35.  In R v Russell, ex parte Beaverbrook Newspapers Ltd[44], 5 defendants were charged with a total of 40 inter-connected charges which formed the subject of one set of committal proceedings.  One defendant, X, who was concerned in only six of the charges, applied for an order under s3(2) of the 1967 Act[45].  The magistrate made the order but limited its effect to those parts of the proceedings relating to X, on the basis that an unlimited order would result in publicity that might prejudice other defendants in respect of other, different charges in the proceedings.  The proprietors of a newspaper applied for an order of certiorari to quash the magistrate’s limited order, and for an order of mandamus directing him to make an order in the terms of s3(2).  On the question whether the newspaper proprietors had a standing to make the application, Lord Parker CJ[46] said, among other things, that where charges were so inter-connected as to be properly the subject of one set of committal proceedings, an order made under s3(2) of the 1967 applied to the totality of the proceedings; and that the magistrate had no jurisdiction to make the limited order[47]. 

36.  In R v Bow Street Magistrate, Ex parte Kray (Reginald)[48], before preliminary proceedings started, the accused applied for and was granted a lifting order under s3(2) of the 1967 Act in general terms.  Subsequently, his charges were divided into eight different groups and there were preliminary proceedings in respect of each group before different magistrates.  When the final group of charges came before the original magistrate who made the lifting order, an issue arose as to whether the proceedings would be subject to reporting restrictions.   The accused asked the magistrate to retain the restriction under s. 3(1), but the magistrate ruled against him.  The accused then applied for an order of certiorari to quash the magistrate’s order to lift the reporting restrictions and an order of mandamus to require the magistrate to order that the reporting restrictions had not been lifted.  In dismissing the application, the Divisional Court held that: (1) an application for an order under s3(2), and the grant of such an order, may be made before the preliminary inquiry has begun; and (2) when an order is made under section 3 (2), the proceedings to which it relates, that is to say, the particular committal proceedings to which it relates, must be ascertained in the light of the circumstances prevailing at the time when the order was made.  In passing, Lord Widgery LJ[49] commented on the effect of s3 of the 1967 Act and said,

“So far then the position is clear; there is a general embargo on publicity in regard to committal proceedings, unless an application is made by a defendant for the lifting of the embargo, whereupon the court must make an order to that effect. … ”

(Emphasis supplied)

37.  In R v Blackpool Justices ex p Beaverbrook Newspapers Ltd [50], which was a multiple-defendant situation, three of the defendants applied for and were granted a lifting order.  However, there were other defendants, some of them had been remanded prior to and some of them after the lifting order was made.  When all the defendants, there were 10 of them, were before the justices for the purpose of taking depositions, the justices ordered that the proceedings were to be subject to reporting restrictions.  As a consequence, newspaper proprietors applied for an order of mandamus for lifting the reporting restrictions or an order of certiorari to quash the restriction order.    The defendants opposed the motion, contending among other things that the lifting order was ineffectual and could be withdrawn by the justices because it was applied for and made before the identity of all the defendants was known and other defendants had been brought into the proceeding after it was made.  Lord Widgery CJ, giving the judgement of the court, referred to R v Russell ex p Beaverbrook Newspaper Ltd, ante; and R v Bow Street Magistrate, Ex parte Kray (Reginald), ante and said[51],

“There is some authority to assist in the interpretation of this section, although it is still a relatively new one. …it suffices to say that the effect of that decision is that, where there are a number of defendants concerned in committal proceedings affecting them all, if one such defendant asks for an order under section 3 (2), that order must be made and will apply to all the defendants concerned in those proceedings. …The stark choice of whether in such an instance reporting shall be permissible in respect of all, or in respect of none, is taken by the Act of 1967, and the effect of the Act is that, if one defendant applies for an order and gets it, as he must on application, all other defendants involved in those committal proceedings are also subject to the full glare of publicity which used to apply to all defendants before 1967.

… For present purposes the importance of that decision is that it lays down that an application for an order under section 3 (2), and the grant of such an order, may be made before the committal proceedings proper have begun.  I use the phrase ‘committal proceedings proper’ because, by virtue of section 35 of the Act of 1967, when an accused person is brought before the magistrates' court charged with an indictable offence, the justices are to be treated as sitting as examining justices as soon as the defendant appears or is brought before the court.  …”

(Emphases supplied)

38.  In R v Horsham Justices, ex parte Farquharson, ante, an issue arose as to whether the examining justices would have any power to re-impose the reporting restrictions after a lifting order had been made pursuant to s3 of the 1967 Act. The facts were as follows.  Before the start of the preliminary inquiry, the defendants applied for and were granted an order lifting the reporting restrictions.  Whilst the preliminary inquiry was taking place, s4 of the Contempt of Court Act 1981 became operative, then the justices made another order prohibiting reporting of any part of the proceedings until the commencement of any trial herein.  A journalist, his union and a local paper applied for orders of certiorari to quash the second order.  The Divisional Court quashed the second order of the justices but remitted the matter to the justices for them to consider whether an order should be made postponing publication of all or only part of the committal proceedings.  Regarding the effect of s3 of the 1967 Act, MO, Forbes J , with whom Glidewell J agreed[52], said,

“ Weighing in the balance the importance of public dissemination of information with the importance of ensuring a fair trial, Parliament decided in section 3 of the Act of 1967 that the scales moved against public dissemination and hence that section provided for a restriction on reporting of committal proceedings unless a defendant applied for that restriction to be lifted. As I read the section, once any defendant applies the justices have no discretion to refuse and, what is more, no reasons have to be given by the defendant who so applies.

It would be wholly wrong to suggest – and I think there was a suggestion of it during the course of the argument – that the justices had any duty to weigh the interests of public reporting against the interests of the defence or the interests of justice. Any such balancing of interests had already been done by Parliament in enacting the provision.

The cases, and I need not rehearse them, show two things. First, the interest which any co-accused might have in maintaining restriction on reporting was not a matter which justices could take into account. Indeed, as I have said, they appear to have no discretion to exercise in the matter at all. Secondly, once the application and the inevitable order had been made, there was no possibility that that order could be recalled. Even cogent and respectable reasons for a change of heart by a defendant could not result in the revocation of the order. The justices simply have no power to revoke. ” ^[53]

“ What section 3 of the Criminal Justice Act 1967 , did was to add a new statutory offence; to make it unlawful to publish any report at all of the proceedings (other, of course, than those matters set out in subsection (4) ) irrespective of whether a report was likely to prejudice a fair trial. A successful application under section 3(2) did no more than remove this additional and very wide prohibition on reporting and thus left the position exactly as it had been before the Criminal Justice Act 1967; namely, that reports of what I shall call "prejudicial material" might still attract proceedings for contempt. Thus, although a decision to lift restrictions was irrevocable this was because the court simply had no power to make an order banning publication. It did not affect the law that publication of prejudicial material might still be contempt.”[54]

(Emphasis supplied)

39.  On appeal, one of the questions which the English Court of Appeal was asked to address was whether the publication of committal proceedings was governed by, and only by, the provisions of s3 of the 1967 Act.   In upholding the judgment of the Divisional Court, Lord Denning said[55],

“… Under the statute any one of the accused can ask for restrictions to be lifted: see section 8 (2) of the Magistrates' Courts Act 1980[56]. If he asks, the magistrates have no option. They have to make an order permitting all the committal proceedings to be reported as against all the accused: see Reg. v. Russell, Ex parte Beaverbrook g Newspapers Ltd. [1969] 1 Q. B. 342”

(Emphasis supplied)

Shaw LJ explained the rationale behind s3 of the 1967 Act as follows[57]:

“ Before the Act of 1967, committal proceedings were freely reported subject only to the general principle that reports had to be fair and accurate and so on. … By section 3 it prohibited, subject to the exception of some innocuous or essential details, all publication of reports of committal proceedings. This prohibition was solely in the interests of the justice to the defendant… Parliament recognised, however, that in exceptional situations a defendant (who might be one of a number of accused) might have an interest in the dissemination of news of his predicament…It enacted that if a defendant (possibly one of a number) asked that the prohibition on publication should be lifted, then, ipso facto, whatever other others charged might say or the justices might think, the statutory ban on publication went…. ”

(Emphases supplied)

Echoing the above, Ackner LJ said,

“ Section 3 (1) (section 8 (1) of the Magistrates' Courts Act 1980) provided the general restriction on reports of committal proceedings. Section 3 (2) (section 8 (2) of the Act of 1980) provided for the lifting of these restrictions on the application by the defendant or any one of the defendants. Section 3 (4) (section 8 (4) of the Act of 1980) specified those matters that may be contained in a report of committal proceedings without any order having been made under section 3 (2) to lift the restrictions. They included the identity of the court and the names of the examining justices, the names, addresses and occupation of the parties and witnesses, etc. It is clearly established that once any defendant applied the Act of 1967 gave the justices no discretion to refuse and no reasons had to be given by the defendant who so applies. The interest which any co-accused might have in maintaining restriction on reporting was not a matter which justices could take into account. Further, once the application and the inevitable order had been made, there was no possibility of recalling that order. …”[58]

“… The Act of 1967 was clearly designed to provide protection to an accused against the wide publication previously permitted of committal proceedings. …”[59]

(Emphases supplied)

Respondent’s response to case authorities

40.  In a chivalrous attempt, Mr Ma seeks to distinguish the above English case authorities by submitting that the question of the proper construction of s3 of the 1967 Act as to whether it could and should be construed as conferring a power or discretion upon the magistrates, was not really raised or argued in any of those cases.  If I understand it correctly, what is being implied by Mr Ma is that in the above-quoted judicial pronouncements on the effect of s3 of the 1967 are strictly speaking obiter. 

41.  With respect, I am unable to accept this submission of Mr Ma.  In my view the mandatory nature of s3(2) of the 1967 Act (and hence of our s87A(2)) forms an integral and essential part of the reasoning of the courts in R v Blackpool Justices ex p Beaverbrook Newspapers Ltd andR v Horsham Justices, ex parte Farquharson which cannot be dismissed as mere obiter. Furthermore, as submitted by Mr Dykes, English judges have spoken in one voice on the interpretation of the 1967 Act.  To say the least, this unanimous view of those eminent judges merits a serious consideration.    

42.  Then, Mr Ma submits that the Courts in those English cases had apparently proceeded upon “a literal, plain and ordinary meaning” approach, in giving the word “shall” a mandatory meaning and effect.  This, so the argument goes, is not the modern approach on statutory interpretation which is to start with the context and purpose of the legislation in question. 

43.  The above submission contains an acknowledgement, rightly in my view, that the Applicant’s interpretation of s87A(2) accords with the plain and ordinary meaning of the section.  However, contrary to Mr Ma’s contention, the English courts have not lost sight of the context and purpose of the legislation under consideration.  This is amply demonstrated by the judgments in Farquharson.  In the judgment of the Divisional Court, Forbes J looked into the policy reasons behind s3 of the 1967.  Immediately preceded the passage of his judgment which is quoted above, his lordship said[60],

“ The argument on the first ground, that there was no jurisdiction to make an order under section 4 (2) in the circumstances of this case, provoked an investigation into the reasons behind the passing of section 3 of the Criminal Justice Act 1967 . We were referred to passages from speeches in the House of Lords in the Attorney-General v. Leveller Magazine Ltd. [1979] A. C. 440 , notably that of Lord Diplock, at pp. 449-450:

‘As a general rule the English system of administering justice does require that it be done in public: Scott v. Scott[1913] A. C. 417 . If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this. However, since the purpose of the general rule is to serve the ends of justice it may be necessary to depart from it where the nature or circumstances of the particular proceeding are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection Parliament has made some statutory derogation from the rule.’

Of course, the public nature of the administration of justice and the right of the wider public to be informed by the press of what is taking place are matters of the greatest importance. But, as their Lordships point out in the Leveller case, sometimes in particular cases these matters must be subordinated to the interests of justice.

            A typical case in my view is afforded by the provisions of section 3 of the Act of 1967.  The wide public dissemination of the evidence given in committal proceedings may work to the prejudice of the defendants at the subsequent trial because the memory of what they have read may make it more difficult for a jury to try the case solely on the evidence before them.  Most juries are robust enough to surmount this difficulty but the possibility of prejudice to the defence is there.”

Clearly, Forbes J was fully alive that the principles of open justice must be subordinated to the interest of justice.   

44.  In the Court of Appeal, Lord Denning also referred to the policy behind the UK legislations concerning report of court proceeding[61]:

“ This interpretation is, in my mind, necessary so as to ensure two of our most fundamental principles. One is open justice. The other is freedom of the press. It is of the first importance that justice should be done openly in public: that anyone who wishes should be entitled to come into court and hear and see that takes place; and that any newspaper should be entitled to publish a fair and accurate report of the proceedings — without fear of a libel action or proceedings for contempt of court. Even though the report may be most damaging to the reputation of individuals, even though it may expose wrongdoing in high places, even though it may be embarrassing to the most powerful in the land, even though it may be political dynamite, nevertheless it can be published freely — so long as it is part of a fair and accurate report. The only case in which it will be punishable as a contempt of court is when the court makes an order postponing publication in the legitimate exercise of its power in that behalf.

…

            I cannot think that Parliament in section 4 (2) ever intended to cut down or abridge the freedom of the press as hitherto established by law. All it does is to make clear to editors what is permissible and what not.  In considering whether to make an order under section 4 (2), the sole consideration is the risk of prejudice to the administration of justice. Whoever has to consider it should remember that at a trial judges are not influenced by what they may have read in the newspapers. Nor are the ordinary folk who sit on juries. They are good, sensible people. They go by the evidence that is adduced before them and not by what they may have read in the newspapers. The risk of their being influenced is so slight that it can usually be disregarded as insubstantial—and therefore not the subject of an order under section 4 (2).”

(Emphasis supplied)

Whether or not one agrees with Lord Denning’s assessment as to the likelihood or otherwise of jury being influenced, his lordship clearly had considered the risk of prejudice to the administration of justice as a result of pre-trial reporting.

45.  Shaw J explained that s3 of the 1967 Act was a “simple expedient” to deal with the prejudice which might result from pre-trial “propagation of the evidence”[62]:

“ Before the Act of 1967, committal proceedings were freely reported subject only to the general principle that reports had to be fair and accurate and so on. After a notorious case which attracted much public attention it became more and more apparent that the propagation of the evidence which was almost invariably only the prosecution side of a grave accusation might prejudice the subsequent trial of that accusation by a jury. The media disseminate such matters widely and impressively. Accordingly the Act of 1967 adopted a simple expedient.”

46.  As already noted above, Ackner J identified that the 1967 Act was clearly designed to provide protection to an accused against pre-trial adverse publicity. 

Respondent’s submission on local context and legal framework

47.  Then, Mr Ma summits that our local legal context, which includes the existing state of our laws, the BL, the BOR as well as the NSL, enshrines the importance of the interests of justice and fair trial at the constitutional level and in safeguarding national security.  Under such context, so the argument goes, the Court should generally lean in favour of the interpretation which affords greater protection to fundamental rights.  This constitutional, fundamental rights and safeguarding national security context, it is submitted, was not present in those English cases, which were all from the pre-Human Rights Act 1998 era. 

48.  As regards the above submission, I fully accept that local context and legal framework are important in construing legislation. The rules of statutory interpretation are well-established and are recently encapsulated by Cheung CJ who gives the recent judgment of the Court of Final Appeal in HKSAR v Chan Chun Kit[63].

“10. The rules of statutory construction are well established. Words are construed in their context and purpose. They are given their natural and ordinary meaning with context and purpose to be considered alongside the expressed wording from the start, and not merely at some later stage when an ambiguity is thought to arise. A purposive and contextual interpretation does not mean that one can disregard the actual words used in a statute. Rather, the court is to ascertain the intention of the legislature as expressed in the language of the statute. As has been repeatedly pointed out, one cannot give a provision a meaning which the language of the statute, understood in the light of its context and purpose, cannot bear^[64].

11. Context here is to be taken in its widest sense and includes other statutory provisions and the general law.  The purpose of a statutory provision may be evident from the provision itself, the recommendation of a report such as that published by the Law Reform Commission, the explanatory memorandum to the relevant bill or a statement by the responsible official of the government in relation to that bill in the Legislative Council^[65]. It may also be relevant in any given case to look at the history of the provision concerned^[66]. ”

49.  I also fully accept that open justice is a means to fair trial and the latter is the ultimate aim itself: ATV Ltd v Communications Authority, ante.  What I am unable to agree with Mr Ma is that the local context and legal framework in Hong Kong call for an interpretation of our s87A which is different from its plain meaning as supported by the English case authorities. 

50.  First, I do not understand that Mr Ma is going so far as to say that the right to fair trial (meaning fairness to both the prosecution and the defence) which is the main plank of his submission formed no part of the Common Law in Hong Kong before the BOR came into operation in 1991: see R v Sang[67]; and R (Begum) v Special Immigration Appeals Commission[68]. Moreover, it has always been the case, before or after the handover in 1997, that the prosecution has a legitimate interest in maintaining the fairness of the trial: Tong Ying Kit v Secretary for Justice[69].

51.  Secondly, the Common Law principles of open justice and closely connected to it, press freedom, also eminently feature in the BL, the BOR and the NSL:

BL 27

            Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.

BL 87

            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.  Anyone who is lawfully arrested shall have the right to a fair trial by the judicial organs without delay and shall be presumed innocent until convicted by the judicial organs. 

 (Emphasis supplied)

BOR 10[70]

Equality before courts and right to fair and public hearing

            All persons shall be equal before the courts and tribunals.  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; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. 

(Emphasis supplied)

NSL 4

            Human rights shall be respected and protected in safeguarding national security in the Hong Kong Special Administrative Region.  The rights and freedoms, including the freedoms of speech, of the press, of publication, of association, of assembly, of procession and of demonstration, which the residents of the Region enjoy under the Basic Law of the Hong Kong Special Administrative Region and the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong, shall be protected in accordance with the law. 

(Emphasis supplied)

NSL 41(4)

            The trial shall be conducted in an open court.  When circumstances arise such as the trial involving State secrets or pubic order, all or part of the trial shall be closed to the media and the public but the judgement shall be delivered in an open court. 

(Emphasis supplied)

As such, the right to fair trial is entrenched rather than altered by the BL; and the common law principles of open justice (subject to certain well-defined exceptions) remain the norm after the handover and the NSL does not change that. In the latter regard, it is pertinent to note that the prosecution has not asked for a closed court order under NSL 41(4), nor does NSL 41(4) form any part of the Magistrate’s reasoning in arriving at the Decision. 

52.  Thirdly, as can be seen from the 1979 Hansard quoted above, the major object of the defaulted reporting restrictions provided for in s87A(1), MO is to prevent “prejudice against the accused”.  This is not different from its English equivalent and hence the English case law is directly relevant.  More importantly, it must be taken that the Legislature was aware of the existing English case authorities on s3 of the 1967 Act when it enacted s87A in 1979.  As noted above, both “shall” and “may” are used in s87A, so that there can be no doubt that the Legislature appreciated at the time that the two words bear different meanings.  Therefore, it is clearly evident that the Legislature, by enacting s87A in its present form, intended that the section should operate with a similar effect as its English equivalent; otherwise, it would not have been difficult for the Legislature to replace the “shall” under consideration with “may”. 

53.  Fifthly, as aforesaid, there is a consistent usage of “shall” in all other provisions in the MO relating to committal proceedings.  This, in my view, strongly suggests that the first “shall” in s87A(2) should bear the same meaning as it appears elsewhere in the other places of the MO dealing with committals.

54.  Sixthly, I have no difficulties with the proposition that the court can suitably adjust its own procedure taking  into account the interests of witnesses, without compromising the principles of open justice: HKSAR v Shamsul Hoque[71]. However, the respondent’s concern that prosecution witnesses might be deterred from giving evidence in the coming trial in the absence of reporting restrictions is speculative.   As noted above, except when there is a PI, return days are largely administrative in nature which do not involve examination of evidence in support of the charge.   On the other hand, the hearing of a PI is not in open court and the public can be lawfully excluded if “the ends of justice will be best answered by so doing”: s80, MO.  Apart from that, there are also other measures at the court’s disposal for protecting witnesses, which I will come to in due course.  All in all, I am simply unable to see how reporting restrictions on its own can serve as an effective means to protect prosecution witnesses from interference or undue pressure.  In my judgement, the Respondent’s contention that the lifting of reporting restrictions would lead to the frustration of the ultimate aim of doing justice is exaggerated and untenable: cf Asia Television Ltd v Communications Authority, ante. 

Respondent’s submission on facultative meaning

55.  Mr Ma submits that, as a matter of common law, depending on the context and purpose, the word “shall” is capable of bearing a facultative meaning, and confers a power or discretion.  I have no difficulties with that proposition.  However, as shown by the case authorities relied upon by Mr Ma, the application of this common law principle is context-specific.   Therefore, it begs the question as to whether the same is applicable to the present case. 

56.  In re Davis[72] was about admission of barristers in Australia pursuant to s10 of the Legal Practitioners Act 1898-1936 which provided that:

“Every candidate whom the Board shall approve as a fit and proper person to be made a barrister shall be admitted as a barrister by the Court on any day appointed for that purpose. ”

Although the High Court of Australia held[73] that the Supreme Court was not bound by the provision to admit to the Bar a candidate who was approved by the Board, the context in that case was entirely different from the present one.  Moreover, the following passages from the judgment of Dixon J[74] (with whom Williams J agreed[75]) are, in my view, instructive: 

“This contention, in my opinion, gives too literal a construction of s.10.  It would be absurd to lay hold of the word “shall” and interpret the provision as intending to place upon the Court the imperative duty of admitting to the Bar, without regard to any other condition, a person who showed that the Board approved him as a fit and proper person.  …

…

But I am clearly of opinion that to treat s. 10 as it now stands as imposing an imperative duty upon the Court without regard to any other condition to admit a candidate to the Bar once he shows the Board’s approval, produces such absurd and inconvenient consequences and is so improbable an intention that some other construction should be adopted, if one is possible.  I think that another meaning is open and that the real effect of the section is to provide no more than that, if the candidate has obtained approval of the Board, then his admission shall be in open Court and upon some day appointed for the purpose.  Its purpose is not to entitle him to admission independently of every other consideration.  When the legislation wishes to give a right to admission it uses the word “entitles,” as for example in ss. 11 and 12. ”

I am not suggesting that “absurdity” is the only criteria.  However, the point is that the natural and ordinary meaning of the first “shall” in s87A(2), MO does not lead to any absurdity.   To the contrary, a mandatory “shall” matches the legislative intent and is also consistent with the usage of that word in the other parts of MO relating to committal proceedings. 

57.  In Karus v Scottish Legal Complaints Commission[76], one of the issues was whether K would still be subject to disciplinary proceedings when he had already requested that his name be removed from the roll of solicitors, although that had not yet been done.  The relevant Scottish provision said,

“An enrolled solicitor who wishes his name to be removed from the roll of solicitors may make an application to the Council in that behalf, and the Council shall…on the solicitor satisfying the Council that he has made adequate arrangements with respect to the business he has then in hand, remove the name of that solicitor. ”

(Emphasis supplied)

As to this, the Court of Session said[77],

“…The word ‘shall’ has frequently been construed as permissive rather than mandatory; for example, Stroud, Judicial Dictionary of Words and Phrases … gives 17 examples of cases where the word has been so construed, usually with reference to the underlying policy of the Act in question. In the present case, we are of opinion that the policy underlying the existence of the roll of solicitors demands that the second respondent should have an element of discretion as to whether a request to remove a solicitor's name from the roll should be granted, at least immediately. Provided that good cause exists for doing so, we consider that the second respondent should be entitled to refuse a request for removal. The likelihood of significant disciplinary proceedings would provide a sufficient reason. …”

(Emphasis supplied)

That case is not authority for the general proposition that “shall” should always be construed as permissive rather than mandatory so as to achieve a perceived desirable result.  Rather, the case shows that a strong and clear policy reason would be required before that could be done.  In the present case, however, there is no evidence that the policy behind s87A is for the protection of (prosecution) witnesses.  Rather, there is every evidence that the policy behind that section is to protect the accused, so that it is up to the accused to decide whether he or she would waive that protection. 

Conclusion on ultra vires

58.  To conclude, I can see no cogent or convincing reasons for the Respondent’s proposition that the provisions in s87A, MO should bear a meaning other than their plain and ordinary meaning.  To the contrary, a purposive and contextual interpretation and a consideration of the case law point in unison to the conclusion that s87A(2) means what it says in that the magistrate is at the instance of the accused under a mandatory duty to lift the reporting restrictions imposed by s87A(1).  It follows that the Decision is ultra vires in that the Magistrate purported to exercise a discretion which did not exist. 

59.  In so ruling, I have not neglected the point made by Mr Ma that the operation of s87A(2), MO might result in unfairness in a multi-defendant situation where not all of them agree to the lifting of reporting restrictions.  The effect of the above-quoted English case authorities is that the magistrate would have no discretion even when that happens.  I note, however, that in the UK, provisions were inserted to ameliorate that contingency by conferring a discretion on the examining justices[78].  This, however, has not happened in Hong Kong and this may be an area of reform which the Legislature would like to consider. 

60.  That said, I appreciate that under the constitutional and legal framework of Hong Kong, an issue may arise as to whether s87A(2) is so wide as to violate the fair trial right of the co-accused. However, there are two reasons why this court should restrain from expressing any conclusive views on this issue.  First, the Applicant’s application had not been objected to by the Interested Parties, who have all taken a neutral stand and do not seek to be heard in the present judicial review.  Therefore, the present case is not a suitable vehicle for considering the issue.   

61.  Secondly, for the reasons which I have already given, the “discretion” which the Respondent seeks to read into s87A(2) cannot be supported by common law rules of statutory interpretation.  However, whether or not a “remedial interpretation” could and should be adopted (as in cases like HKSAR v Lam Kwong Wai & Anor[79] ) has not been argued before me by any of the parties.  This, too, should be left for future consideration in a suitable case. 

Other grounds

62.  In view of my ruling on the ultra vires ground, it would not be necessary for me to deal with the other grounds relied upon by the Applicant.  However, out of deference to counsel, perhaps I shall express my view on the alternative case of the Applicant. 

63.  Even assuming that the Magistrate did have a discretion under s87A(2), MO, so that the protection and interests of prosecution witnesses could be a legitimate consideration, I am inclined to the view that a magistrate presiding over committal proceedings should not refuse to acceded to the application of an accused under s87A(2) unless such refusal is “strictly necessary” in the interests of justice: BOR 10.  In ATV Ltd v Communications Authority, Cheung CJHC (as he then was) said[80],

“27.     The case law has very often expressed this in terms of a requirement of “necessity”, that is, where justice would be frustrated if open administration of justice in a particular case is not restricted, then, to the extent necessary to prevent that from happening, there may be restriction on doing justice openly. 

28.       This requirement of ‘necessity’ is founded on the common law, and has also found expression in article 10 of the Hong Kong Bill of Rights and, in the case of the Court of Final Appeal, section 47(3) of the Hong Kong Court of Final Appeal Ordinance (Cap 484).  Article 10 of the Hong Kong Bill of Rights relevantly provides that the press and public may be excluded from a hearing ‘to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.’ ”

64.  It is arguable that the exercise of the discretion (assuming there is one) under section 87A(2) would involve the application of a proportionality test; Leung Kwok Hung & Ors v HKSAR[81]; and Hysan Development Co Ltd v Town Planning Board [82].  I need to emphasize, however, that this point has not been argued by counsel before me at any length.   The point is that if the Magistrate was required to consider “proportionality” in the exercise of his discretion, then he did not seem to have done that in his oral reasons. 

65.  Putting aside whether or not the Magistrate as a matter of law was required to consider proportionality, what make reporting restrictions “strictly necessary” would be fact and case sensitive.  Nevertheless, in his oral reasons he did not seem to have considered the following matters which are, in my view, relevant:

(1)  Whether, and if so to what extent, reporting restrictions were effective in achieving the perceived aim of protecting prosecution witnesses;

(2)  if the worry was about unruly behaviour of some members of the public present in court, whether that concern could be alleviated by excluding them pursuant to s122, CPO and (in case of a PI) s80, MO and/or in an extreme case by ordering a hearing in camera pursuant to s123, CPO;

(3)  if the concern was about the revelation of identities of prosecution witnesses, then whether an anonymity order could help;

(4)  if the concern was about the risk to the impartiality of potential jurors, then there was an option open to the SJ of a trial by a panel of three judges instead of a jury trial: NSL 46; see also Tong Ying Kit v Secretary for Justice, ante;

(5)  whether there are civilian witnesses and if so, what the nature of their evidence is.  If the prosecution witnesses are all police officers, then whether it can be expected that they are less likely to yield to improper pressure or be deterred from giving evidence; and

(6)  whether counsel could so tailor their speeches in court as to avoid revealing the identity of the prosecution witnesses and the contents of their evidence. 

As such, I am inclined to the view that even if there were such a discretion as contended by the Respondent, the Decision would still be flawed in that it entails a failure to take into account relevant considerations and as a result of which it has not been shown that the reporting restrictions were “strictly necessary” in the circumstances.  However, to be fair to the Magistrate, he did not have the benefit of the assistance that this court has when he came to the Decision “on the spot”.

Orders

66.  Based on the above, I grant:

(1)  an order of certiorari to quash the Decision;

(2)  an order of mandamus that the Magistrate shall make an order to lift the reporting restrictions in accordance with s87A(2), MO when the Applicant is next appeared before him;

For avoidance of doubt, the aforesaid orders do not affect the restrictions on reporting bail proceedings imposed by provisions other than s87A, MO.

67.  In view of the result of this judicial review, I make an order nisi that the Applicant shall have the costs of these proceedings, with certificate of two counsel, to be taxed if not agreed.