The law protecting fair trials

Readers may be fed up with me complaining about the erosion of the laws restricting the reporting of upcoming court cases.

Well, some good news. The erosion has now reached the stage where there is nothing left. I shall not need to return to this topic again.

The law involved is rather unhelpfully labelled “strict liability contempt of court.”

The “contempt of court” part means that your conduct is deemed to disturb the administration of justice.

The “strict liability” bit indicates that the prosecution does not have to prove that you meant it, only that your publication could have affected the subsequent trial. Its purpose is to ensure that trials are fair.

Long ago, the Law Reform Commission published a survey of the law in this area – along with some recommendations which, as usually happens, were ignored – which included this summary:

There are essentially four principal ways in which impartiality of the court may be impaired :

• by commenting on the personal character of the accused;
• by publishing an alleged confession by the accused;
• by commenting on the merits of the particular case; and
• by publishing a photograph of an accused person in such a way that he can be identified if the question of identity is likely to be in issue.

A website published by the UK government offering guidance to editors and writers gets right down to the basics:

For example, you should not:

• say whether you think a person is guilty or innocent
• refer to someone’s previous convictions

The case that offered an overwhelming temptation to some local media was the one involving a man who wooed a woman on the internet, invited her to dinner in a very expensive restaurant, and fled after the meal, leaving her to face a bill for around HK$84,000.

Clearly, the idea of a meal worth the price of a small car was very interesting. Indeed, the bill has been published on the internet. Most of the damage was incurred by the consumption of a very expensive bottle of champagne.

Still, that is no excuse for completely ignoring the law. An article in Dimsum Daily left little doubt about its intentions: “Man Wah $84,000 bill scandal lays bare inside perpetrator’s mind and Hong Kong’s loneliness trap.” Wait a minute. A man has been arrested, and we’re going inside his mind?

We certainly are. In the first paragraph, he is the “alleged culprit”, but you would not think so from the rest of the piece, which has his full name, a picture (!), details of his previous convictions and a discussion in the light of those details of whether the “alleged culprit” is a psychopath or not.

Would you, if you were facing a court appearance, like the reports of your arrest to include stuff like this?

According to court records **** [the man’s surname] did not simply lie; he constructed entire worlds. He fabricated alter-egos with supposed triad ties and elite legal credentials, conjured the spectre of surveillance, and threatened women with exposure and harm if they did not comply … During his earlier trial, the court noted his dispassionate precision – threats delivered coolly, details supplied as if omniscient, a cruelty that felt engineered rather than eruptive.

And so on. Ironically, at one point, the writer asks, ”Where does that leave justice?” Pretty knackered, if people are allowed to publish about freshly arrested suspects, things like:

What, finally is in **** ****’s [the man’s full name] mind? Perhaps the answer is banal and chilling at once. He sees people as instruments, evenings as stages, truth as raw material. He is gratified by the gasp when the cork pops and the bill lands, by the moment his companion realises the script was never about her at all…

I do not see how a publication could put this out at all unless they were all so dangerously ignorant of the law that they should not be allowed near a keyboard, or they were completely confident that the law does not apply to them.

As is The Standard, whose somewhat more circumspect approach – they only gave his family name – was nicely encapsulated by the headline, “Repeat dine-and-sash suspect may have planned scheme in advance” and a picture in the print edition captioned, “The suspect, surnamed ****, has a criminal record.”

So here we are. We have the rule only of laws the government likes to direct at people it does not like. Integration with the mainland has reached the point where a trial is a mere formality: the formal endorsement of a conviction already announced by the police and reported in government-friendly publications.

I dare say the suspect is a bad lot who has scammed women before. He is, nevertheless, entitled to a fair trial, and he is not going to get it.