‘Rights of defendants and public at stake’ in activist’s bid to free media from court curbs on bail coverage

Gwyneth Ho Kwai-lam

An activist detained under Hong Kong’s national security law is planning to apply to the High Court to lift restrictions on the media’s reporting of her bail hearing on Wednesday.

In a message published on Tuesday, Gwyneth Ho argued that laws banning the media from reporting details of bail hearings failed to protect the interests of the accused. The press should be allowed to freely report what happened during those hearings, she said.

“After the defendants under the national security law were arrested and remanded in custody, the reporting restrictions on bail hearings have turned the process into a ‘black box’, and has created widespread fears in society,” she wrote.

“The public has no way of knowing the contents of the bail hearings under the national security law, especially the evidence used by the prosecutors and the courts’ assessment of the defendants.”

Ho is among 47 democracy figures charged with conspiracy to commit subversion, which carries a maximum sentence of life in prison. They are accused of plotting to subvert state power via an informal primary poll held last July. Only 13 of the 47 have been granted bail since early March. 

After being detained for more than six months, Ho will make her bail application at the High Court on Wednesday morning.

She publicised her arguments a day in advance, saying the reporting restrictions set out under section 9P of the Criminal Procedure Ordinance were originally meant to ensure that defendants received a fair trial. The law limits media coverage of bail hearings to basic information such as the defendant’s name, the court’s decision and bail conditions.

Those regulations backfired because the lack of transparency had caused the public to doubt whether the national security law had been fairly implemented, Ho wrote, adding that Hong Kong society was worried about arbitrary arrests based on flimsy evidence. 

“In reality, the reporting restrictions benefit the Department of Justice, as it no longer needs to publicly explain the basis of the charges and various political accusations,” she wrote. 

“The restrictions have clearly contravened the principle of public justice, and if the courts still refuse to lift them, the public will inevitably suspect that the courts accept this unfair situation.”

The open administration of justice was a fundamental principle of Hong Kong’s common law system, and courts should be scrutinised by the public and the press, Ho said, quoting the city’s former chief justice Denys Roberts.

Hong Kong courts have mostly kept reporting restrictions in place for bail applications under the national security law, though some judges have issued written rulings explaining their decision to grant or refuse bail, which are typically published after a delay. 

Earlier on Tuesday, the court again denied the bail application of former pro-democracy lawmaker Gary Fan, a co-defendant in the subversion case. Like most of the 47, Fan has been in custody for months with no trial date lined up as yet.

By Holmes Chan