Hong Kong journalist Bao Choy has had a final chance to appeal her conviction for accessing car license information for an investigative documentary about a mob attack in Yuen Long in July 2019.
High Court Judge Alex Lee said some of the legal arguments raised by Choy were of “great and general importance” and should be considered further by the Court of Final Appeal.
Lee rejected Choy’s first appeal earlier this month, saying he agreed with the chief magistrate’s ruling that information obtained through the vehicle details database cannot be “arbitrarily abused. “.
Choy, an independent producer, was arrested in November 2020 and charged with two counts of making false statements to obtain vehicle records for a documentary for public broadcaster RTHK.
The 22-minute documentary revealed details of the mob attack in Yuen Long on July 21, 2019, widely seen as a turning point in protests that summer, with police accused of siding with the attackers and ignore calls for help.
She was found guilty last year and fined HK$6,000, a verdict that sparked fears of declining press freedom in the city. The conviction was condemned by the city’s press club and advocacy groups as an affront to press freedom, as the press often uses such data as part of regular reporting.
In seeking to launch a legal challenge, Choy’s legal team raised two legal issues. The first concerned the power of the commissioner of transportation to refuse requests from the public for vehicle registration information.
“Does Regulation 4(2) of the Highway Traffic (Registration and Licensing of Vehicles) Regulations (Cap. 374E) authorize the Commissioner of Transport to refuse to furnish a certificate as referred to in that provision to an applicant for unless the subject matter of the plaintiff’s claim was related to traffic and transportation issues?” Choy’s team took him to court.
Lee proposed to rephrase it as follows: “Under section 4(2) of the Highway Traffic (Registration and Licensing of Vehicles) Regulations (Capt. 374E), may the Commissioner of Transport refuse to provide a certificate to an applicant on the grounds that the applicant the subject of the application is not related to “matters related to traffic and transport?”
Tien Kei-rui, who represented Choy, said he would accept the judge’s suggestion.
In the second legal argument, the journalist asked “how should the phrase ‘traffic and transport matters’ be interpreted” – and whether it included “a journalistic investigation into or involving the use of a vehicle on the road”.
Lee suggested replacing it with “[d]o does it cover an investigation by a journalist into the identity of a person suspected of involvement in a crime (not being a traffic offence) where that person is suspected of having used a private vehicle to and/or away from the crime scene.”
Tien rejected the amendment, arguing that the purpose of a freedom of information request could be broader than simply identifying someone. Lee interrupted the lawyer, saying that during Choy’s trial it was agreed that the information was used to produce 721 Yuen Long Nightmare.
“Are you going to tell me that she didn’t have that in mind when she asked for this information?” Lee questioned Tien. “Don’t joke with me.”
Choy “had been making phone calls and trying to schedule interviews,” Lee added. “Don’t tell me she didn’t think that way.”
Tien said identifying an individual could be one of the directions, but there could also be other goals. Lee said he wasn’t happy and wouldn’t sign off on the second argument unless Choy’s team rephrased it.
“Great and general importance”
Lee ruled that the first question of law was “of great and general importance, particularly to the news industry”. He added that it could also affect members of the public who may need vehicle registration data for other purposes such as litigation – matters unrelated to traffic or transport.
As for the second legal argument, Choy said they would file an application with the Appeals Panel of the Court of Final Appeal and let them determine if she had grounds to launch a challenge.
Speaking to the press after the hearing, Choy said she had expected her appeal process to go all the way to the city’s highest court, so she felt calm and didn’t was not too disturbed.
“So I didn’t really have a lot of…worries about the consequence, whether I win or lose the case, I guess what I’m doing is just trying to keep seeking justice and I understand that I don’t do this on my own,” Choy said.
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