Thread by @XinqiSu

This is a #thread to explain the reporting restrictions removed today and yesterday re the #NSL cases of 47 pro-dem activists "conspiracy to subversion" and of the #HKAlliance "incitement to subversion".

The ban is pursuant to article 87A of the Magistrates Ordinance and hence popularly known as the "87A ban" or simply "87A" in HK.

The ban covers a pre-trial procedure called "committal proceeding" - when a magistrate is supposed to scrutinize the allegation and...

...decides whether the case is fit and ready for proceeding to formal trial. At this stage, a defendant can opt for a "preliminary inquiry" to go through the prosecution's evidence and examine the witnesses. If a defendant wins a PI, the case will be thrown out of court.

So the 87A ban was at first designed to protect the accused from prejudice that might be formed among potential jurors when they read from the news details of the case before a formal trial is scheduled.

To learn more from a legal professional, this article by Philip Dykes SC is recommended:

Dyke represented @zouxingtong Chow Hang-tung in the successful judicial review that removed the restriction.

hongkongfp.com/2022/08/14/cho…

The 87A article is pretty simple and straightforward on its surface. It provides that the ban "shall" be lifted once an accused demanded so, regardless of the positions of other defendants (if any) and the prosecution.

But that was not the case in the 2 #NSL cases concerned.

The prosecution opposed the defendants' applications to remove 87A ban and #NSL magistrate Peter Law rejected the applications in both cases.

They said reporting would attract "comments and even attacks" from the public, which would deter witnesses and undermine trial integrity

23 hearings (according to my tally) in the committal proceedings of the 2 cases (7 from the Alliance case and 16 from the 47 defendants' case) over the past year were kept from reporting until ystd and today.

@holmeschan_ and I wrote about the impacts:
hongkongfp.com/2022/04/07/hon…

The removal came after Chow Hang-tung, one of the defendants in the Alliance case, launched the first judicial review of its kind against Magistrate Peter Law's decision to sustain the ban despite her application.

High Court #NSL judge Alex Lee ruled earlier this month that Magistrate Law exercised a discretion he didn't have from law and even if he had that discretion, it was not properly exercised.

france24.com/en/live-news/2…

Following Judge Lee's ruling, Magistrate Peter Law removed the 87A ban on the Alliance's case yesterday, and ordered the following preliminary inquiry opted by Chow Hang-tung to be conducted in an open court.

The prosecution tried yesterday to oppose the open-court arrangement for Chow's PI, saying, still, that public comments would deter witnesses and affect integrity of trial. But Magistrate Law said "wouldn't it be too extreme if we ban driving just to prevent traffic accidents?"

This morning Magistrate Law also lifted the reporting restriction on the pro-dem primaries case, though he refused to make clear whether a closed-door preliminary inquiry is also open to reporting.

Scene:

https://twitter.com/XinqiSu/status/1560102870296727553?s=20&t=dT_aKai_wEG8ddHX39hkDA

With the ban removed, it can be finally revealed now that in the case with 47 defendants, in over a dozen hearings throughout a year, the defense ground the prosecution for a clear, detailed allegation i.e. what was the "conspiracy" that all 47 agreed and amounted to an offence

While the prosecution insisted "more than usual" had been provided and the summary of facts wouldn't be provided before a guilty plea was indicated.

At one point, prosecutor Andy Lo said "If they plead not guilty, they will have nothing and the next thing will be case opening."

Gladys Li, a veteran barrister on defense, told the prosecution and the court "We will not be held at a gun point to offer plea"

Read: barrons.com/news/restricti…

The defense lawyers also complained that the prosecution had been dumping them large amount of materials without clarifying whether and how they were related to the case. They also criticized the prosecution for "dancing round and change and add (to the case)"

As the case dragged on to late April, 13 months after its first mention, Magistrate Peter Law said "everything must have a bottom line" and set deadlines in June for defendants to indicate their plea. The defense opposed this "astonishing" instruction, but it went on as ordered.

One detail worth mentioning here. At one of the previously restricted hearing, the defendants were only given a few pieces of biscuits as dinner when the procedure went late. They protested in court and a lawyer asked the court to clarify that exchange...

...of words between the defendants and Magistrate Law should not fall into the scope of restriction. But neither the prosecution nor the judge was willing to give any clear answer. The prosecutor warned reporters at the scene to "bear your own consequences".

A few points to conclude the year:

1. The prosecution and the court expressly demonstrated their distrust and vigilance against news reporting and public discussions of what happened in court.

2. Cost (esp of time) was extremely high for the defendants even when they were...

...trying to exercise a right provided plainly in law (and supported by a senior court judge).

3. While it took time to remove the ban, lots of discussions about the case, the legal points involved and procedural justice took place, which left the media a highly challenging...

...task to document, archive, digest, summarize, report and present what happened - the harder the longer the ban dragged on. So eventually what can be presented now (a year in one go) is reasonably less than what readers might get from right-on-the-day reporting.

As Chow Hang-tung summarised in her first 87A application before Magistrate Law, the ban would exacerbate the information asymmetry between the defense and the prosecution, as well as under the public's confidence in the city's rule of law and administration of justice.

"The 87A article was designed to protect the accused, not to facilitate the prosecution to beat them up behind closed doors," Chow said.

Back to square one, the intent to prevent prejudice among potential juror might no longer matter in these cases:

hongkongfp.com/2022/08/16/non…