Hong Kong courts lag behind in granting open access to legal documents

Granting open access to documents used in court is part of an international trend toward increasing transparency in legal proceedings, but not in Hong Kong

PUBLISHED : Thursday, 02 January, 2014, 12:04pm
UPDATED : Friday, 03 January, 2014, 3:27am

Hong Kong courts’ practice of withholding documents from the public and the media undermines open justice and falls far behind an international trend of making judicial documents accessible, a media scholar says.

Just a few types of court documents can be obtained by the Hong Kong public and journalists, a far cry from courts in Canada, New Zealand, South Africa, the US and Britain.

The practice also contrasts with a ground-breaking decision made by the UK’s Court of Appeal last year, which ruled that any documents referred to in open court in both civil and criminal cases should in general be supplied to the media in line with the open justice principle and decisions by other common law jurisdictions.

In Hong Kong, available documents include writs filed to initiate a suit and the court judgment but not other documents used in the proceedings.

Scholars and journalists say access to documents is now more important because litigation has become document-based and less intelligible as an unintended side effect of the civil justice reforms implemented in 2009 to enhance efficiency and reduce costs.

“The practice of lawyers to refer to documents without elaborating on them in open court puts journalists and the public at a disadvantage,” media law professor Doreen Weisenhaus said.

Former legal reporter Polly Hui, now a trainee solicitor at Howse Williams Bowers, agreed.

“The meaning of open justice will be somewhat lost if all it does is allow journalists to attend court hearings without necessarily giving them the right of access to information which is essential to accurate and balanced reporting,” Hui said.

Ruling in favour of British newspaper The Guardian, the UK Court of Appeal ruled that where documents had been placed before a judge and referred to in court, the “default position” should be that access to documents should be permitted.

“The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed?” the UK court asked in the judgment.

“If a document is referred to in open court, it is only logical that it is made available to give a complete picture.”
Media Law professor Doreen Weisenhaus

“In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process,” it said. “Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse.”

The court said there was an important public interest element in making evidence and arguments publicly known “so that society may judge for itself the quality of justice administered in its name, and whether the law requires modification”.

In reply to an inquiry, Hong Kong’s judiciary said the public and media could, on a payment, obtain copies of writs and judgments of cases other than bankruptcy, matrimonial and adoption, and so on.

But Weisenhaus, an associate professor and director of the Media Law Project at the University of Hong Kong, said this was “like being given a sandwich with only two slices of bread but nothing of substance inside”.

“If a document is referred to in open court, it is only logical that it is made available to give a complete picture.”

The judiciary added that approval could be sought from the court to obtain court documents. But Weisenhaus said the requirement to seek approval meant that it is still entirely within the court’s discretion, which was different from the presumption in the Guardian case that documents should be available unless lawyers could adequately show why they shouldn’t be. Documents should be accessible in both civil and criminal cases, she said.

Hui said that while judges and lawyers might have weeks and months to pore through the evidence and legal submissions before a trial, journalists rarely had that luxury.

“Very often, a court reporter will have to figure out from scratch what a case is about after a few hours of attending a trial. This could put journalists entirely at the mercy of the lawyers handling the case,” she said, adding that reporters at times even had difficulty getting the names of the lawyers.

Weisenhaus said many courts around the world had begun to recognise that freedom of expression included a right of access to information.

“They are acknowledging that the open justice concept that supports public access to both proceedings and information provided in the courts,” she said.

“Countries such as Canada, New Zealand, South Africa, the US and now the UK recognise that it is a critical aspect for journalists to be able to access court documents. It actually enhances the administration of justice because it promotes journalistic accuracy.”

Hui said that in suitable cases, particularly those concerning public interest, the court should be ready to exercise its discretion to grant journalists access to lawyers’ written arguments, exhibits, witness statements and documents the court considered necessary for the media to perform their critical role in a system of open justice.

But she said there should not be a blanket rule specifying what documents should be made available as in some instances, the disclosure of documents could put a person’s safety at risk or adversely affect a trial.

Eric Cheung Tat-ming, a principal law lecturer at the University of Hong Kong, said judgments in other common law countries collectively were a strong persuasive authority, even though not binding on local courts. Decisions based on another common law authority can be made in Hong Kong courts without the need of legislation, which takes precedence over case law.