Hong Kong Judiciary

Hong Kong Judiciary

Introduction

Being a region in which human rights are highly regarded and respected, Hong Kong has been trying her very best to protect the freedom of expression. In light of the recent Court of Appeal decision in Sing Tao Limited v So Wing Keung, the public's attention is drawn to the fact that freedom of expression may be undermined by the call for criminal investigation.

Freedom of expression in Hong Kong since 1997

The Hong Kong Bills of Rights Ordinance (HKBORO) came into effect on 8 June 1991, which for the first time introduced to the territory the active protection of fundamental human rights and freedoms by incorporating ICCPR as applied to Hong Kong. Moreover, after the changeover, the Basic Law further protects the aforesaid rights by making them constitutionally guaranteed (Andrews Maronick 2005 301 9). ICCPR is also incorporated in the domestic law of Hong Kong through the Basic Law.

Ng Kung Siu case

The limitation for the protection of public order has been the centre of controversy since the resumption of sovereignty. In HKSAR v Ng Kung Siu and another, a flag desecration case, the CFA confirmed that freedom of expression is not absolute and is subject to restrictions. It stated that national and regional flags are important and unique symbols of the nation and of the HKSAR, respectively and their importance is particularly highlighted during the adaptation period after the changeover. Therefore, there exists societal and community interests in the protection of the flags, which makes it necessary to restrict the right (Kim Allen Kardes 2006 318-28).

Charter Garden incident

On 25 April 2002, two journalists were arrested and handcuffed by the police while covering a protest in Charter Garden. In this incident, at least four journalists were detained by the police. It was alleged by the police that they referred to the Police Force Ordinance (Cap 232) and the Force Procedure Manual and thus had the requisite legal authority in exercising their power. Also, several provisions in the Public Order Ordinance (Cap 245) also confer the Police the power to arrest and curtail to a large extent the freedom of journalists to cover protests and demonstrations in public places (Heath McCarthy Mothersbaugh 2004 520-34).

Comparative Study

Actually, other foreign jurisdictions are facing the same problem. As noticed by the Chief Justice in considering the broadness of the concept of public order in Leung Kwok Hung case in the CA, the terminology used in some of the overseas legislations are just as broad as the said terms in the Public Order Ordinance. In the UK, the independence of press freedom from executive influence was highlighted in British Steel Corporation v Granada Television Ltd, and was guaranteed constitutionally after the Human Rights Act 1998 came into force in 2000. Its position is similar to that in Hong Kong (Jacoby Szybillo 2004 224-44).

Leung Kwok Hung case

This case concerns a challenge lodged by a current Legislative Councillor, Leung Kwok Hung (nicknamed "Long Hair"), against the constitutionality of various provisions in Public Order Ordinance ...