Hong Kong’s High Court throws out union’s bid to have police’s treatment of journalists last year labelled unconstitutional

Judge Anderson Chow notes, however, that his ruling ‘must not be read’ as passing judgment on whether police acted unlawfully
The Hong Kong Journalists Association had sought declarations that police conduct last year was in breach of the Basic Law and Bill of Rights

Hong Kong courts

Jasmine Siu

Published: 1:48pm, 21 Dec, 2020

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The High Court has thrown out a bid from Hong Kong’s oldest journalists’ union asking it to formally label the police force’s treatment of industry members during last year’s anti-government protests as unconstitutional.

The Hong Kong Journalists Association (HKJA) had sought two court declarations that police conduct last year represented an unlawful breach of freedoms of the press, opinion and expression guaranteed by the Basic Law – the city’s mini-constitution – and the Bill of Rights.

Examples of the alleged ill-treatment included journalists being shot with rubber bullets and beanbag rounds; targeted with tear gas, pepper spray and high-powered water cannons; arrested or threatened with arrest; subjected to tactics designed to frustrate proper reporting; and being repeatedly and systematically met with police officers’ refusal to identify themselves.

The Hong Kong Journalists Association hosts a silent march against police violence during protests in July last year. Photo: Warton Li

The association had already won the two other limbs of its challenge, when the same court last month agreed that the system for dealing with complaints against police was inadequate, and that officers’ failure to display their identification numbers during last year’s protests contravened the city’s Bill of Rights.

But Mr Justice Anderson Chow Ka-ming on Monday concluded that the declarations sought in the latest case fell “on the wrong side of the line”, and that it would be undesirable to make “a sweeping and general declaration” that breaches took place.

“Tempted as I am to lay down some guidelines on the legal limits and scope of the police’s duty to facilitate, and not to hinder, lawful journalist activities with the hope of minimising unnecessary conflicts between the police and journalists in public order events, I am ultimately persuaded by [the police] that it would be wrong to decide matters in vacuo,” or without proper context, the judge wrote in a 38-page decision. “It would also be misleading to make declarations of legal duties in unqualified terms without identifying the possible limits or qualifications of the relevant duties.”

Journalists quarrel with media liaison police officers in Prince Edward during a clearance operation in October of 2019. Photo: Edmond So

But Chow also made clear that his judgment “must not be read as indicating that the court has found that the police either has, or has not, acted unlawfully”, since that can only be determined after a full investigation of the relevant facts and circumstances of the case.

Central to the journalists association’s judicial review application, which was supported by 13 member complaints against officers, was whether police have a duty to both facilitate journalists’ work and to not hinder them – and to what degree that duty exists.

Its counsel, Philip Dykes SC, had 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 were threatened with arrest, targeted in police officers’ application of force or treated like protesters while covering the unrest that rocked Hong Kong for months starting in June of 2019.

Anti-riot police aim at a group of media personnel in Mong Kok during a clearance operation last year. Photo: Edmond So

Jenkin Suen SC, for the police chief, agreed that officers had a positive duty to facilitate and enable lawful journalistic activities, as well as a duty not to restrict the freedom of the press unless such interference was justified.

But he also argued that such a duty was not absolute, and that 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”.

Dykes had suggested the court could treat the journalists’ statements as “assumed facts” and proceed on that basis.

The judge, however, found this approach “unworkable and inappropriate” when the facts in question were subject to disagreement.

In a statement, the association said it was “extremely disappointed” by the decision and that it would study the judgment to decide on the next steps.

This article appeared in the South China Morning Post print edition as: bid by journalists’ group rejected