Signing away the freedom of the press

No surprise – Hong Kong courts have found AGAINST Jimmy Lai again. In HCMP 738/2020, the High Court refused his application for judicial review of police search warrants. This has vast implications for the freedom of the press in Hong Kong.

In August 2020, shortly after the national security law was introduced, police arrested Jimmy Lai, raided Apple Daily, and seized evidence pursuant to a court warrant, including 2 of Lai’s smartphones.

The 2020 warrant did NOT authorize seizure of journalistic materials. In 2022, the police applied for a further warrant under the national security implementation rules, which purported to authorize police to examine journalistic materials.

Journalistic material is material acquired or created for the purposes of journalism (IGCO (Cap. 1) s 82). It has a special status because “it forms the backbone of the freedom of the press and must be given the greatest possible protection from seizure, otherwise the press may be inhibited from informing the public of matters it is entitled to know” (So Wing Keung, CACV 245/2004, 11 Oct 2004).

Thus, in pre-NSL HK, journalistic material was given special protection. The police could not examine journalistic material seized under a magistrate’s warrant; they had to apply for a production order from a District Court or High Court judge (IGCO s 84).

The High Court judgment yesterday, however, affirms that the national security law creates a SEPARATE and ADDITIONAL regime for search warrants. Thus, the statutory protection for journalistic material in IGCO does not apply.

Under the national security law implementation rules, a magistrate can issue a warrant for seizure of material that is “evidence of an offence endangering national security” (Sched 1 s 1).

This judgment yet again affirms that with the national security law, all common law or statutory protections of rights and freedoms that we have always known go out the window.

With this judgment (but subject to appeal), the police can view any journalistic material saved on Lai’s phone. This is a terrifying prospect for any journalist or anyone who speaks to a journalist.