HK's hazy contempt laws leave lawyers, defendants in the dark
What exactly is contempt of court? Is a court hallway part of the court and does recording there constitute contempt?
Solicitor Anthony Kwan Wai-ming aired these and other questions after his client, Ng Wai-bing, was convicted of contempt of court for making recordings secretly in a witness waiting room during her husband's trial on vice charges.
The recordings made by Ng, who was handed a suspended sentence yesterday, led to the acquittal of her husband and other defendants and the charging of two police officers.
Kwan said after Ng was committed for trial in October that greater clarity was needed in the law on contempt; clarity in the definition of what was considered part of a court for the purposes of contempt, and which acts amounted to contempt inside a court.
'There is no real legal definition,' he said. 'For a defendant, even after he has committed an act, he doesn't know whether he has committed contempt.'
Kwan's concerns, it appears, are not new. In 1987, the Law Reform Commission issued a report recommending the creation of a Contempt of Court Ordinance stating the principles by which contempt was defined. It outlined clear procedures on how contempt should be dealt with in different situations, guidelines for the media on what constituted contempt, limits on penalties, and rules on who may institute and discontinue contempt proceedings.
In the report, the commission said it had found that most of the population did not understand the law of contempt.
The law of contempt underwent significant reform under the UK Contempt of Court Act 1981, the report noted.
However, in 1994, the then attorney general, Jeremy Matthews, said it was neither necessary nor desirable to codify the contempt laws, which were not based on legislation.
The commission's recommendations were not implemented by the government, like a number of other reports produced by the commission.
Simon Young, director of the Centre for Comparative and Public Law, said there was merit in rethinking the contempt laws.
Lawmaker Audrey Eu Yuet-mee, a barrister, said it would be good to review the issue as the Law Reform Commission had written the report in 1987.
She said that, at times, it was unclear when it was appropriate for people to publicly comment about a court case. 'You could say that in many cases it's very clear, but at times it is not ... there is a grey area,' she said.
Doreen Weisenhaus, professor of media law at the University of Hong Kong, said while Hong Kong did not have the same clarity as the UK in its contempt laws, there was no urgent need for legislation as the media had learned how to report within the rules.