Hong Kong police have duty to aid, not hinder media, journalist union argues before High Court
- ‘Unlawful’ actions during anti-government protests represent a systematic failure on the force’s part, press group says
- But government lawyers argue that ‘drafting protocols’ for police-journalist interactions would be dangerous for the judiciary to entertain
Lawyers for Hong Kong’s oldest journalists’ union on Friday argued before the High Court that police have a duty to facilitate rather than hinder journalistic activities, and that the force’s “unlawful” actions during anti-government protests represented a systematic failure.
The Hong Kong Journalists Association (HKJA) is seeking multiple orders from the court including a declaration that police conduct represented an unlawful breach of freedom of the press, opinion and expression guaranteed by the Basic Law – the city’s mini-constitution – and Bill of Rights.
Central to the group’s judicial review application, which is supported by 13 member complaints against officers, is whether police have a duty both to facilitate journalists’ ability to do their jobs and to not hinder them – and to what degree that duty exists.
Philip Dykes SC, arguing on behalf of the HKJA, said he hoped the court would provide meaningful declarations, identifying how that duty should be discharged in practice, as the complaints suggested serious breaches in which journalists had been threatened with arrest, targeted in police application of force, or treated like protesters while covering the unrest that has rocked Hong Kong since last June.
When force is used on a journalist with the intent of preventing reporting, it will always be unlawful, because that is not a legitimate use of force
Dykes argued that civil society needs a healthy press to function properly and provide the public with ideas, and journalists have the right to attend public order events for reporting purposes.
Police have a duty to differentiate between protesters and the journalists reporting on the events, even when officers have a reason to disperse protests, he continued.
“When force is used on a journalist with the intent of preventing reporting, it will always be unlawful, because that is not a legitimate use of force by the police to control the situation,” Dykes said.
“We don’t say journalists are above the law – they are constrained by the law. They can be arrested if they cease to be witnesses and become indistinguishable from participants.”
Dykes further argued that officers must justify their interference with journalists and have good reason to question whether a person is a member of the press.
Jenkin Suen SC, representing the police chief and secretary for justice, said the force recognised the media’s fundamental right to impart information and freedom of expression, and agreed there was a duty for officers to facilitate journalistic activities.
But he also noted that such rights are not absolute and that being a journalist does not provide immunity from arrest on obstruction charges.
Suen further argued that judicial review was not an appropriate forum for the HKJA case, saying it would be dangerous for the court to entertain the “rather sweeping and ambitious challenge” and give “uninformed advice based on one part of the jigsaw puzzle”.
The applicant is essentially asking the court to lay down various guidelines for parties in the future. The query is whether this should be the court’s role – drafting protocols
“The applicant is essentially asking the court to lay down various guidelines for parties in the future,” Suen said. “The query is whether this should be the court’s role – drafting protocols.”
He also questioned if the court can draw broad conclusions about defects in the police system based on complaints over the conduct of individual officers, particularly when those complaints have yet to be proven and each case is fact-sensitive.
Robert Pang Yiu-hung SC, for the applicant, replied that the cases brought by the association were representative of police behaviour and that the force itself had acknowledged receiving “numerous complaints” over the past 10 months of protests.
Their failure to take action in those cases contrasted with “the thousands of people who have been arrested in connection with public order events,” he continued.
“Trials have taken place, people have been convicted, appeals are going to be heard … It points to a failure within the force itself and not individual persons.”
Mr Justice Anderson Chow Ka-ming reserved judgment and will rule on the case at a later date.
