Annual report 1999

THE GROUND RULES CHANGE
Freedom of expression in Hong Kong two years after the handover to China


JOINT REPORT OF THE
HONG KONG JOURNALISTS ASSOCIATION
AND ARTICLE 19
JUNE 1999

Contents

Introduction

Mak Yin-ting, Chair, HKJA
Malcolm Smart, Deputy Director, ARTICLE 19 2

Conclusions and recommendations


Section 1
The public domain 6
Re-interpreting Hong Kong’s legal system 6
The regression of democracy 8
Law reform 10
The rejection of visas 11
The policing of demonstrations 11
Radio Television Hong Kong 12
Monitoring of human rights 13
Access to information 14
Privacy: A new danger area? 15

Section 2
The media 17
Threats to media diversity 18
Media ownership changes 20
The electronic media 21
The pressure for self-regulation 21
Violence against the media 23
The increasing use of libel suits 23
Contempt of court proceedings 24


Acknowledgements
Editors: Charles Goddard and Cliff Bale. Contributors: Cliff Bale, Charles Goddard, Carol Lai Pui-yee, Grace Leung Lai-kuen and Gren Manuel. Co-ordination: Ada Ma Wai-man, HKJA Executive Secretary.
c Hong Kong Journalists Association and ARTICLE 19 ISBN 1-902598-12-1

Introduction
Two years ago, as China reclaimed Hong Kong from the British, many predicted that the end of colonialism would, paradoxically, also spell the demise of Hong Kong’s fledgling democracy.
There were particular fears too that Hong Kong’s reversion to Chinese sovereignty under “one country, two systems" might spell the swift demise of those key rights which the people of Hong Kong had come to enjoy and which had contributed so significantly to the former colony’s economic miracle—the rule of law under an independent judiciary, freedom of speech and association, a degree of press freedom virtually unrivalled in Asia.
Two years on, the picture is far different from those bleak predictions. Freedom of speech has survived in the Hong Kong Special Administrative Region (SAR)—witness the vigils and other events held in early June to mark the tenth anniversary of the suppression of the 1989 pro-democracy movement in China—and the press remains largely free, vibrant and prepared still to undertake that most difficult of all roles for the fourth estate, the watchdog of the public interest against abuse of executive power.
Yet, all is not well in the SAR and the need for continuing international attention remains acute. Recently, the government has embarked on a course of action which seems destined to put in question the very rule of law that has been such a mainstay of Hong Kong’s success. In face of what it considers an unwelcome decision by Hong Kong’s highest court, it has now appealed to an unelected political body in Beijing to overturn that judicial decision. The government has now got its way, setting a profound and deeply worrying precedent that may well undermine current guarantees for free speech and other human rights in Hong Kong. The judiciary’s capacity to check executive power, and thus to uphold human rights, has been severely weakened.
The past two years have also seen a marked strengthening of the executive’s supremacy over the legislature. Changes to the franchise introduced prior to the 1998 elections significantly reduced the influence of democratically elected members of the legislature, thereby weakening the democratic credentials of the legislature as a whole. At the same time, the legal reform and democratisation process initiated under the last British governor has ground to a halt, and an increasing culture of secrecy in government can be discerned. This too raises fears for the future.
This is the sixth in a series of reports on freedom of expression and media freedom to be published jointly by the Hong Kong Journalists Association and ARTICLE 19. The first four addressed these issues under the outgoing colonial administration while the 1998 report reviewed the first year of the SAR. This latest report covers developments since June 1998. Like our previous reports, it draws attention to the continuing risks to freedom of expression and makes a series of recommendations for legal and other reform. These, we hope, will be given weighty consideration by the Hong Kong authorities but also act as an agenda for the promotion of change which other governments and multilateral institutions should pursue in their relations both with Beijing and the SAR. Freedom of expression must be preserved for the people of Hong Kong.
Mak Yin-ting, Chair, Hong Kong Journalists Association
Malcolm Smart, Deputy Director, ARTICLE 19

Conclusions and recommendations
The past year under review has not seen any significant deterioration or improvement in freedom of expression in its most tangible sense. Individuals continue to express views at variance with the Hong Kong and Chinese governments, for example, and these views continue to be published and aired in the media. But as our title suggests, the ground rules are changing, and it is these changes which may ultimately have a damaging effect on rights and freedoms in Hong Kong, including that of freedom of expression.
The HKJA and ARTICLE 19 note with grave concern the decision of the Hong Kong Special Administrative Region (SAR) government to seek an interpretation of the SAR constitution, the Basic Law, by the Standing Committee of China’s National People’s Congress in a bid to stem what officials say will be a massive influx of Chinese migrants to Hong Kong. The Standing Committee has now issued its interpretation, which effectively overturns a ruling by Hong Kong’s Court of Final Appeal (CFA). The move will also set a dangerous precedent for similar re-interpretations whenever the government disagrees with a court ruling. Indeed, the next such re-interpretation could involve a freedom of expression issue, that is whether an individual has the right to desecrate a Chinese or SAR flag.
In our last annual report, Questionable beginnings, we drew attention to a disturbing trend in the year immediately following the handover: a lack of respect on the part of the SAR government for the rule of law. In this past year’s move to re-interpret the Basic Law, this trend has taken on an altogether more significant and damaging dimension. It greatly undermines guarantees of judicial independence (including the right of final adjudication) and diminishes the crucial separation of Hong Kong’s common law legal system from that of mainland China.
This is by no means all. We also note that the Hong Kong government’s programme to bring laws, in particular those relating to national security, into line with the Basic Law, the International Covenant on Civil and Political Rights and the Hong Kong Bill of Rights Ordinance has ground to a complete halt. This is to be deplored, considering that it leaves several dangerous laws on the statute book. Further, the government still has to enact new and potentially threatening provisions banning subversion and secession, even though it appears to be stalling on this controversial issue for the time being.

The rule of law

1.1 The rule of law, with democracy, is one of the essential foundations for the protection of civil liberties, including freedom of expression. Yet the rule of law has come under attack through the Hong Kong government’s decision to seek an interpretation of the Basic Law. The use of this method to overturn a ruling of Hong Kong’s highest court, instead of adopting the more conventional path of legal reform, is to be condemned. It will seriously weaken the rule of law, and have a profound effect on the protection of freedoms, including that of expression.

1.2 The HKJA and ARTICLE 19 therefore call on the Hong Kong government to refrain from making further use of interpretation of the Basic Law to overturn decisions of the Hong Kong courts. In particular, we urge respect for the forthcoming decision to be made by Hong Kong’s Court of Final Appeal on the question of whether individuals have the right to desecrate Chinese and Hong Kong flags. In this respect, the SAR government must also bring the National Flag and National Emblem and Regional Flag and Regional Emblem ordinances fully into line with Article 19 of the International Covenant on Civil and Political Rights.

The development of democracyLegislative reform

3.1 The need for the SAR government to enact laws prohibiting treason, sedition, subversion and secession, as set out in Article 23 of the Basic Law, remains the greatest threat to freedom of expression. The government has not yet set any timetable for the enactment of such provisions, although action is not expected until after the Legislative Council elections in September 2000.

3.2 The HKJA and ARTICLE 19 reiterate that in order to safeguard freedom of expression, the Basic Law needs to be amended to delete references to subversion and secession. And at the very least, when drafting new treason, sedition, subversion and secession laws, the SAR government must take into full account the modern jurisprudence on national security and freedom of expression.

3.3 We therefore urge the government to apply the Johannesburg Principles on National Security, Freedom of Expression and Access to Information. In particular, we urge the adoption of principle 6 of the Johannesburg principles. This states that expression may be punished as a threat to national security only if a government can demonstrate that the expression is intended to incite imminent violence, that it is likely to incite such violence, and that there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.

3.4 The HKJA and ARTICLE 19 deplore the lack of progress in bringing Hong Kong laws fully into line with Article 19 of the International Covenant on Civil and Political Rights, which is entrenched in Article 39 of the Basic Law. We are particularly concerned about the failure of the government to bring about changes to the following security-related laws:

¡E The Crimes Ordinance as it relates to treason and sedition;

¡E The Official Secrets Ordinance, which fails to provide public interest and prior publication defences;

¡E The Emergency Regulations Ordinance, which grants the chief executive broad powers of censorship, without legislative checks;

¡E The Interpretation and General Clauses Ordinance, which under certain circumstances permits the police to search for and seize journalistic material gathered in confidence.

Media regulation
4.1 The press has, in the year under review, come under increasing pressure to put its house in order, as some publications resort to ever more sensational techniques to increase sales. The government has refrained from direct interference in this debate, although Hong Kong’s chief executive, Tung Chee-hwa, has called on the media to shoulder more social responsibilities.

4.2 The HKJA and ARTICLE 19 would urge the Hong Kong government to refrain from interfering in how the press runs its affairs. This is particularly important at a time when observers are questioning the ability of the Legislative Council and the judiciary to protect freedom of expression. In particular, we would be seriously concerned if any requirement were to be made to set up a press council, and if any move was made, in contravention of international standards, to restrict press freedom as a result of recommendations expected later this year from a government-appointed committee examining privacy issues.

The independence of RTHK
5.1 China’s hostility towards the independence of the government-funded public service broadcaster, Radio Television Hong Kong (RTHK), has subsided during the year under review. However, no moves have been made to bolster the station’s editorial independence. The HKJA and ARTICLE 19 therefore urge the SAR authorities to take immediate steps to formalise, through legislation, the administrative charter which now guarantees the broadcaster’s autonomy and editorial independence, so that its durability and function are not open to administrative discretion.

Access to information
6.1 Official attitudes to the disclosure of government-held information continue to be markedly conservative, and there is now a considerably less open style of government than under the pre-handover colonial administration. This is despite the existence of an administrative code on access to information.

6.2 Given the shortcomings of the code, the HKJA and ARTICLE 19 call on the government to enact freedom of information legislation. This should set out clear principles on maximum disclosure of documents and information, minimal exceptions, and an effective appeal mechanism. Such a law would be vital in ensuring good governance and promoting stronger democracy and accountability.

China and the media in Hong Kong
7.1 Chinese reporting regulations continue to restrict the activities of Hong Kong journalists on assignment in mainland China. This threat was reinforced again when Hong Kong journalists were barred from reporting on vital discussions in Beijing on the interpretation of the Basic Law. The HKJA and ARTICLE 19 call on the Chinese authorities to scrap all reporting restrictions and adopt a more open and non-discriminatory attitude to local journalists working on the mainland. The SAR government should also take concrete steps to press Beijing on this issue, instead of merely stating that Hong Kong journalists should follow the regulations.

Section 1
The public domain
Re-interpreting Hong Kong’s legal system

China has effectively overturned a ruling by Hong Kong’s highest court...

With barely two years since the handover on July 1st 1997, Hong Kong is facing a critical, defining moment in its short life as a Special Administrative Region (SAR) of China under “one country, two systems". The Standing Committee of China’s legislature, the National People’s Congress (NPC), on June 26th issued an unprecedented interpretation of two key provisions in the Basic Law, the SAR constitution. The committee was acting on a request from the SAR government, which was dissatisfied with a Court of Final Appeal (CFA) ruling on the immigration of mainland offspring of Hong Kong permanent residents. This re-interpretation has in effect overturned the judgment of the SAR’s highest court.

...which could have grave implications for basic rights

The expected interpretation, and the manner in which it was sought, threaten to transform Hong Kong’s legal system and, in turn, greatly diminish the safeguards inherent in the system for basic human rights, including that of freedom of expression. The connections between these various elements will be spelt out in greater detail below. But first a measure of background is necessary, though this report will endeavour not to repeat the specific (and very substantive) rights issues raised by the CFA ruling itself. This is covered extensively elsewhere.
On January 29th 1999 the CFA ruled that mainland-born children had the right to live in Hong Kong (the “right of abode") if one of their parents was a permanent resident of the SAR. In arriving at this decision the court asserted that it could declare acts of the NPC invalid in Hong Kong if such acts contravened the Basic Law. The ruling also set out the limited circumstances in which the CFA would have to refer constitutional issues to the NPC Standing Committee for interpretation.
Human rights groups and substantial segments of Hong Kong’s legal and political communities greeted the CFA judgment as an important affirmation of the independence of the judiciary and the rule of law in the SAR. China was less sanguine. Mainland legal experts attacked the ruling as an unacceptable challenge to the authority and supremacy of the NPC. Thus began a series of actions that would lead to the request for reinterpretation. On February 26th the SAR government made an unprecedented application to the CFA for a “clarification" of the ruling: under pressure, the court acknowledged that the Basic Law did not permit it to question the authority of the NPC as China’s supreme legislative body. Though the basic elements of the ruling remained unchanged, Beijing appeared for the time being to be mollified.

The government manipulates public opinion

The Hong Kong government, however, was not prepared to let the issue lie. On April 28th it announced that, as a result of the CFA judgment, 1.67 million mainland children would be eligible for the right of abode, and would arrive in the SAR within the coming ten years. Despite the figure being exposed as recklessly (and deliberately) flawed and irresponsible, it had the intended effect—to swing the general public, anxious about the burden of such a huge influx, against the CFA’s ruling. Hong Kong was faced with a choice, the government said: accepting 1.67 million immigrants or seeking an interpretation or amendment of the Basic Law to reduce these numbers. On May 18th, the government opted for re-interpretation and submitted a hastily proposed motion to the Legislative Council on the following day. The motion was endorsed by the majority of those present; nineteen members, mainly from the democratic camp, walked out in disgust (though this would not have affected the outcome).
One of the key advantages of interpretation, the government claimed, was that it “offers the most resolute, prompt and conclusive solution to the present problems". It came to this conclusion despite warnings that this option would undermine the authority of the CFA. Indeed, legal experts said that an amendment to the Basic Law would be the preferred solution—and one which would be consistent with common law tradition.
The government rejects the amendment route The government has offered two reasons for rejecting amendment. First, it says that to amend the Basic Law would mean waiting until March 2000 when the NPC convenes, thus delaying a conclusive resolution of what it argues to be a critical problem. Second, it claims that what is in fact needed, and what is misunderstood by its detractors, is not an amendment (the Basic Law is not deficient) but rather an interpretation which will elicit the “true legislative intent" of the relevant provisions of the SAR constitution (this is, so it says, what the CFA had failed to grasp).
This leaves the question, what in fact is motivating the government to act in this manner, which some legal experts have argued is constitutionally and legally doubtful. What is leading it to undermine perhaps the most important basic tenets of the SAR’s autonomy under the Basic Law—the guarantee of independent judicial power (including final adjudication), and of the principle of a common law legal system separate from that of mainland China?
Part of the reason must be a belief (rightly or wrongly) that, in spite of its own grossly inflated figures, a large number of mainland children coming to Hong Kong would be a burden on the economy and the fabric of society. But the manner in which the government has approached the problem—its misinformation, its closed meetings in Beijing, its hastily arranged motion in the legislature—lend credence to suggestions that there is a broader agenda afoot.

A senior NPC member accuses the CFA of breaching the Basic Law

Both the Hong Kong and central governments were clearly angered by the CFA’s ruling, the former because the judgment inconveniently overturned government policy and provided a sharp slap in the face for an administration intransigently stamping on an important right, the latter since China perceived the CFA had overstepped its authority in challenging the supremacy of the NPC. On the first day of the crucial Standing Committee meeting the vice-chairman of the NPC’s Legislative Affairs Commission, Qiao Xiaoyang, accused the CFA of breaching the Basic Law by not seeking an NPC interpretation before it issued its January ruling.
The Hong Kong Human Rights Monitor has argued that by seeking a re-interpretation not only is the Hong Kong government “determined to destroy [the CFA] as an effective institution by refusing to comply with its rulings", but that “[T]he true reason of the action is that it wishes to crush the independence of the courts so that it will never have trouble getting its own way in future." Indeed, the chief secretary for administration, Anson Chan, is on record as saying that further applications for re-interpretation cannot be ruled out, though it was “not something we will do very frequently".
Mr Qiao’s comments appear to be taking this one step further, by making it clear that the CFA should refer all sensitive constitutional matters to the Standing Committee, thus dramatically reining in the scope of Hong Kong courts to interpret the Basic Law, as set out in the constitution.

The beginning of the end of the rule of law?

Pro-Beijing elements in Hong Kong have also suggested that reinterpretation be invoked more widely. An article in the pro-Beijing Wen Wei Po advocates reinterpreting a total of seven articles of the Basic Law, including Article 39 which entrenches the International Covenant on Civil and Political Rights (ICCPR) in the constitution. This may for the time being be far-fetched. But it is indicative of just how much damage has already been done to judicial independence, to the legal system and the central role it plays both in Hong Kong’s autonomy and the safeguarding of basic rights, and ultimately to the rule of law—and just how vulnerable the system is now to political capriciousness.

A ruling on flag desecration is expected...

Freedom of expression may be the second casualty of reinterpretation. The CFA in October 1999 is to deliberate on a case which is proving also to be sensitive in the context of “one country, two systems"-whether people in Hong Kong are acting within their constitutional rights to desecrate the Chinese national and SAR regional flags.
Hong Kong’s Court of Appeal on March 23rd 1999 overturned the conviction of two men found guilty of defiling both the Chinese national and SAR regional flags (see 1998 Annual Report, pages 14-16). The appellate court, second only to the CFA, concurred with the argument of the defence that section 7 of both the National Flag and National Emblem and Regional Flag and Regional Emblem ordinances, which criminalise the desecration of the respective flags, were an unnecessary restriction on freedom of expression when measured against Article 19 of the ICCPR. Since these sections were inconsistent with the ICCPR, they were therefore also in breach of Section 39 of the Basic Law, the court said, and thus unconstitutional.
The ruling was again one in which the courts—in a number of recent judgments which belie our scepticism last year—have indicated a determination to safeguard basic rights, in this case freedom of expression, and to do so by giving an open-minded and generous interpretation to rights consistent with the ICCPR. It is to be hoped that the CFA will draw its own conclusions in this case, free of political pressure from either Hong Kong or more importantly, Beijing.

...but it may precipitate another constitutional crisis

However, even if this were the case, the ruling may still precipitate another constitutional crisis. As Albert Chan, a member of the committee which advises China on the Basic Law, has noted: “This is a constitutional issue relating to the balance of power between the national government and the SAR government." And the dividing lines are drawn. Critics of the Court of Appeal ruling, mainly pro-Beijing in orientation, see it as an assault on a national law implemented in Hong Kong (the law was adapted from mainland legislation). Legal experts supporting the ruling argue that the laws' adaptation makes them local not national legislation, and that the judgment therefore struck down parts of the Hong Kong ordinances and not their national equivalent—thus issues of constitutionality are not relevant.
The crux of the issue is certain to revolve around how China reacts to a CFA ruling which concurs with that of the Court of Appeal. One pessimistic suggestion has been that Beijing, irritated that the CFA has not learnt its lesson after its humiliating “clarification" (see above), might take more drastic action to restrict the jurisdiction of Hong Kong courts to interpret the Basic Law.

The regression of democracy

Democratic representation has been eroded further...

The past year under review has seen a further erosion of democratic representation and principles in Hong Kong, following a period of significant political regression during the first year after the handover. The importance of a democratic environment for freedom of expression, and vice versa, cannot be overstated. Despite Hong Kong’s other safeguards for freedom of expression, and human rights generally, in the legal system and in constitutional arrangements it is the partial and fragile nature of democracy and the weakness of democratic institutions which pose perhaps the greatest threats to basic rights.
We have seen above how an executive-led government has been able to trample on the rule of law by pushing its motion for reinterpretation through a legislature two-thirds of which is not elected by universal suffrage. We note also that, as democratic representation has decreased and the democratic framework has deteriorated (it is now more difficult for legislators to propose a motion, for example), it has become increasingly difficult to win support in the legislature for any further reforms to laws which could harm freedom of expression.

...making it difficult to win support for reforms

During the past year there have been several significant developments of note. On July 2nd 1998, the first post-handover Legislative Council was sworn in (for a shortened term of two years). This council superseded the Provisional Legislative Council, the body installed by China on July 1st 1997 to replace—for a period of one year after the handover—the legislature elected in 1995 under controversial British reforms. Though an improvement on the provisional council, the current legislature still lacks the representativeness of its 1995 predecessor. The result is that the democratic camp—which is considered to have the greatest degree of support in the community—controls about one-third of the seats in the 60-member body elected in May 1998, compared with about 50% in the 1995 council.
The deliberate cutback in the representation of the democratic camp was achieved by introducing a proportional system for the election of 20 directly elected members of the council, by narrowing the representativeness of many of the 30 seats allocated to functional, largely pro-business constituencies, and by creating a new 400-member electoral college to choose the remaining ten Legislative Council representatives. Functional groups chose the members of the college, ensuring that conservative elements dominated. Indeed, all ten council members chosen by the college have proven to be strong supporters of the government.

New voting mechanisms are designed to frustrate democrats

The weight of the pro-government forces in the legislature is strengthened further by new mechanisms set out in the Basic Law which make it extremely difficult for an individual member to introduce and see through a draft law or motion which goes against government policy:
� First, no member is allowed to introduce a bill relating to public expenditure, political structure or the operation of the government without the permission of the chief executive. Previously, the only bar was the expenditure test.
� Second, a convoluted voting system takes over whenever a legislator puts forward a motion, bill or amendment. In these circumstances, the legislature divides into two houses—the 30 functional constituency representatives on the one hand, and the 20 directly elected members plus the ten councillors chosen by the electoral college, on the other. Each of the two groups must endorse the private member’s initiative for it to succeed. In other words, either one of the two halves has the power to block a bill or a motion. In a few cases, this has led to the absurd situation where a majority of members back a motion, but it fails because one of the blocs votes against it.
The new mechanisms have caused a growing frustration in the democratic camp about its ability to bring about change. It has led in at least one case to filibustering, where a bill setting up 18 new district councils took 14 hours to pass (which it did eventually, without substantial change, in March 1999). Legislators from the democratic camp used every opportunity to express their views, knowing full well that their initiatives would be voted down.

Appointed seats have been reintroduced for district councils...

The bill setting up the new district councils was itself another example of the regression in democracy. The new law has re-introduced appointed seats into the new district councils, which replace the old wholly directly elected district boards. About 20% of seats in the new district councils will be appointed; elections for the remaining 80% or so will take place in November 1999.

...and municipal councils are to be abolished

The government is also proposing to abolish the urban and regional councils. The Urban Council, Hong Kong’s oldest elected body, celebrates its 116th anniversary this year. This body, plus the more recently formed Regional Council, have broad executive responsibilities which include food, hygiene, sports, recreation and culture. By disbanding these municipal bodies the government is in effect proposing to take away a whole layer of popular representation from the political process (both councils have significant elected elements), dramatically worsening Hong Kong’s democratic deficit. Critics also accuse the government of seeking to take over the councils' executive functions. The proposal to abolish the two bodies is expected to go to a vote in the Legislative Council in late 1999.

Law reform

The government’s record on law reform is deplorable T

he government claims in its January 1999 report to the UN Human Rights Committee on the implementation of the International Covenant on Civil and Political Rights (ICCPR) that it has “dealt with" 96% of provisions of laws identified for review to ascertain their consistency with Article 19 of the ICCPR. In our view this is a travesty. We do not again wish to engage the reform debate on the basis of numbers—how many provisions of how many laws have, or have not, been identified, reviewed and changed, or not changed. This we have done in the past to little avail. Our primary concern, as always, is with substance.
The simple fact of the matter is that Hong Kong continues to live—almost a decade since the Hong Kong Bill of Rights was first mooted and more than two decades since the ICCPR was extended to the territory by the UK—with a battery of laws we believe at the very least to be inconsistent with the right to freedom of expression under Article 19 of the ICCPR, if not actually in direct contravention of that right. While reforms have gone ahead in some areas, notably in broadcasting and film censorship laws, there remains on the statute legislation—notably national security laws—which represent the most significant of dangers to freedom of expression. In a society with weak democratic institutions and an executive unconcerned with the rule of law, these present an open invitation to abuse.


National security laws continue to pose a serious threat

The HKJA and ARTICLE 19 have in all our past reports highlighted this repressive legislation, and will not do so again here except to mention them in brief and draw attention to new or prospective developments. The legislation of particular concern is: the Official Secrets Ordinance, which fails to provide public-interest defences; the Emergency Regulations Ordinance, which fails to provide any real checks on when the authorities can declare an emergency; and the Crimes Ordinance, which lays down draconian offences of treason and sedition.
The Crimes Ordinance remains a particular concern, since it will be amended to incorporate two other offences—subversion and sedition—as laid down in Article 23 of the Basic Law. Provisions in the Crimes Ordinance on treason and sedition were liberalised just before the handover, but have never been put into effect. The clause requiring the setting of a commencement date has deliberately not been implemented by the post-handover administration.
The government has now admitted that there will be no further changes to the law until new subversion and secession provisions are enacted. In its report to the UN Human Rights Committee, it reasons that while the changes to the Crimes Ordinance dealt with treason and sedition they did not address either secession or subversion as required under Article 23 of the Basic Law. “We therefore considered it prudent", the report says, “to defer its commencement until legislative proposals had been formulated to give comprehensive legal effect to Article 23." The original, more threatening provisions on treason and sedition therefore continue to apply.

Article 23 offences may be introduced after the 2000 elections

There is no timeframe for the introduction of the subversion and secession offences. Indeed, many observers now believe proposals will not be presented to the Legislative Council until after the next elections, which are scheduled for September 2000. But brought forward they eventually will be, and the question is just how potentially repressive the new provisions will be. The experience with the liberalised treason and sedition amendments does not bode well. The government, however, is aware of the sensitivity of the issue. In its report to the UN, it pledges “extensive public consultation" on these questions. It also notes the proposals “will need to address the concern—expressed by many commentators—that the requirements in Article 23 should not compromise the freedom of expression."

The power to ban messages remains in force

Another area of continuing concern is the government’s failure to scrap the highly dubious section 33 of the Telecommunication Ordinance, which grants the government wide-ranging powers to ban messages, as well as a similar clause in the Post Office Ordinance governing the interception of mail. The government intended to scrap these provisions by enacting a law governing the interception of communications. The Legislative Council endorsed a private member’s bill to this effect in June 1997, but in this case too, the government failed to set a commencement date.
The government says it is still studying this issue, although it has not given any timeframe for action. It said in a statement to the Legislative Council in September 1998 that “[W]e are assessing the impact that the Ordinance (passed by the legislature) could bring to our law enforcement work and have therefore not appointed a commencement date for the Ordinance." It goes on to say that “[W]e are now pressing ahead with a thorough review of the whole issue of regulation of interception of communications...."

The rejection of visas

Prominent Chinese dissidents were refused entry into the SAR...

In April 1999 the government announced that it had denied visas to 11 exiled Chinese dissidents who had been invited to attend events marking the tenth anniversary of the suppression of the 1989 pro-democracy movement in China. Among those blocked were prominent dissidents Wang Dan and Wei Jingsheng, who had both been exiled by the Chinese authorities after serving lengthy jail terms.
The Hong Kong government gave no reasons for refusing the visas, and turned down subsequent appeals. Albert Ho, the secretary of the Hong Kong Alliance in Support of the Patriotic Democratic Movement in China, said: “We are shocked by the blanket rejections. Many of them had visited Hong Kong before 1997....The government will give people the impression it is being a mere puppet if this goes on." The alliance’s chairman, Szeto Wah, said that the act showed the government was “suppressing freedom of speech that had been enjoyed by Hong Kong."

...though the government denied pressure from Beijing

The government denied it was bowing to pressure from China in making its decision. However, the chief executive, Tung Chee-hwa, has on several occasions warned that Hong Kong should not be turned into a base for subverting China. Observers believe this is the real reason for denying entry to prominent Chinese dissidents.

The policing of demonstrations

The policing of demonstrations and the effect this may have on freedom of expression continues to be of concern to the HKJA and ARTICLE 19. This past year, for the first time, the authorities exercised powers under the revised Public Order Ordinance, controversial amendments of which came into effect after the handover (see 1998 Annual Report, pages 18-20), to ban a demonstration. A rally of paper-recyclers, complaining that the government was not supporting their industry, failed to get the necessary “no-objection" letter to stage a rush-hour rally in Hong Kong’s busy Central district. The police claimed the ban was to prevent traffic congestion and, our criticisms of the no-objection requirement notwithstanding, appeared to be reasonable given the ban was lifted when the organisers reduced the scale of the demonstration.

The police continue to show some antipathy towards free speech

The conduct of the police at demonstrations, particularly the handling of protesters during the visits of Chinese leaders, also continues to reveal some antipathy within the police force towards freedom of expression (see 1998 Annual Report, pages 27-28, where we discuss whether the role of the police is becoming politicised). During the past year several demonstrators have been arrested during such protests, and the police have continued to pen protesters in to small, barricaded areas far from sight of visiting leaders, thereby effectively denying the expression of their views to political figures.

Filming protesters, and tailing activists, are among the tactics used

Journalists report also that police video teams documenting demonstrations and their participants remain common, with protests staged by the April 5th Action Group, a radical pro-democracy group, a particular target. At “political rallies" not only are video teams in evidence, but police officers standing nearby record on clipboards the messages and slogans being conveyed. The South China Morning Post has reported how casually-dressed men with walkie-talkies, believed to be plain-clothes police officers, mounted a high-profile tailing of April 5th Action Group member Leung Kwok-hung during President Jiang Zemin’s visit to Hong Kong in July 1998. Next Magazine a few weeks earlier had taken photographs of another poorly disguised attempt to tail Mr Leung—so poorly disguised in fact that it was not clear whether the true aim was intelligence or intimidation.
In October 1998, the South China Morning Post revealed that the protection of the dignity of leaders was a factor in determining how demonstrations should be policed. The newspaper quoted from internal police orders, issued in September 1998, that for the first time create two clear categories of VIP visitors to Hong Kong-"dignitaries", who are entitled to security protection, and “internationally protected persons" (IPPs), who additionally are entitled to protection of their “dignity". The concept of dignity is not defined in the orders, nor the tactics to be employed in the protection of an IPPs “dignity".

Protecting the “dignity" of VIPs is part of police orders

The new orders raise again the possibility that one of the methods employed to protect IPPs' “dignity" could be the muffling of protesters' messages and slogans. We noted in last year’s report how Senior Assistant Commissioner Dick Lee Ming-kwai, on the night of the handover, had ordered Beethoven’s Fifth Symphony to be played over giant loudspeakers so as to drown out the cries of demonstrators shouting “Down with Butcher Li Peng", a reference to the Beijing massacre of 1989. The assistant commissioner’s actions were roundly criticised by the government-appointed Independent Police Complaints Council. However, the latest internal orders seem to indicate that few lessons have been learnt.

Radio Television Hong Kong

Attacks on RTHK’s editorial independence appear to have abatedThe Hong Kong government in its January 1999 report to the UN Human Rights Committee on the implementation of the ICCPR has reaffirmed its policy of upholding RTHK’s editorial independence. In September 1998 RTHK completed and released new guidelines on programme production. The broadcaster said they were designed to codify established editorial practises within the station, and were based on similar codes for public broadcasters in other countries, including the UK. They cover such areas as impartiality and accuracy, and give guidance on sensitive issues including invasion of privacy, defamation, contempt of court and the coverage of demonstrations and public disturbances.
RTHK staff report that the guidelines have not impeded their work, and that they are rarely, if ever, referred to. It therefore seems reasonable to suggest that the guidelines were a defensive action on the part of the administration—a gesture to mollify critics of the broadcaster’s editorial independence who accuse RTHK of anti-government and anti-Beijing biases.

RTHK’s independence remains open to administrative discretion

There have also been no further moves to hive off RTHK from the government, even though—in an effort to save money—the administration is proposing similar moves for other government departments. RTHK at present operates under a “framework agreement" with the secretary for information technology and broadcasting. This document, which was recently renewed for another two years without substantial change, guarantees the broadcaster’s editorial independence. The key fault with the framework agreement, however, is that it is only an administrative mechanism, and thus open to administrative discretion.
The HKJA and ARTICLE 19 have long argued that to secure adequate safeguards for RTHK’s editorial independence (and thus public service broadcasting generally), the government must formalise the broadcaster’s framework agreement through legislation. Had such legislation been in place, current rumours about top-level personnel changes at RTHK, all of them civil-service appointments, and the impact these could have on the broadcaster’s long-established principles of operation and independence, would have concerned observers somewhat less than they have done. At press time, no such changes had taken place.

Monitoring of human rights

Hong Kong’s report on the ICCPR fails to address key human rights issues

China in January 1999 handed the SAR’s report on the post-handover implementation of the International Covenant on Civil and Political Rights (ICCPR) to the United Nations. Hong Kong officials have argued that the 500-paragraph report is the most comprehensive ever put together on the territory’s civil rights record, and that it acknowledges many critical comments from lawyers, politicians and human rights activists. This may be true, but in our view, and that of other observers, the document still fails to give an objective appraisal of Hong Kong’s human rights situation, and contains some factual errors.
Where it deals with freedom of expression under Article 19, the report notes that “[T]he government is committed to maintaining a free press. Its policy is to maintain an environment in which a free and active press can operate under minimum regulation—regulation that does not fetter freedom of expression or editorial independence." The report further claims that 96% of the legislative provisions the government has reviewed for their consistency with article 16 of the Hong Kong Bill of Rights (which mirrors Article 19 of the ICCPR) have been “dealt with". This is true in the most literal sense. However, as we note in the “Law reform" section above, and have argued repeatedly in previous reports, the review process has fallen far short of its obligations.
Hong Kong human rights groups plan to lobby and submit their own reports on the state of civil and political rights to the UN Human Rights Committee (UNHRC), which is expected to hold public hearings on the matter in late 1999. Government officials and representatives of lobby groups are expected to attend those hearings, as they have done on previous occasions.

The government said China did not tamper with the ICCPR report

It is worth noting that both the government’s report on the ICCPR and its report on the International Covenant on Economic, Social and Cultural Rights (ICESCR), published in June 1999, were passed to China before their submission to the UNHRC and their eventual release in Hong Kong. Despite China’s failure to ratify the ICCPR (which it signed in 1998) and the ICESCR (which it signed in 1997), Beijing informed the UN in early 1998 that the Hong Kong government would submit its first post-handover reports on the two covenants (by way of China). Following the submission of the ICCPR report, Secretary for Home Affairs David Lan declared that the central government had not tampered with its contents.
¡@
Access to information

Attitudes towards access to official information continue to deteriorate

Journalists report that during the past year the government’s attitude towards access to information, and towards transparency generally, has continued to deteriorate. The government continues to operate a restrictive administrative code on access to information, which fails to give the public a legal right to seek government documents on matters of public interest. The kind of information the administration classifies as secret is frankly depressing:
� Data on the schooling of new migrants from China (apparently, it is thought, because it could reveal the discriminatory practice of “dumping" mainland children into low-grade schools. On denying the data to a journalist, the Education Department claimed, incredibly, that it did not know what grade its own schools were);
� Information on which old people’s homes have been found guilty of breaching the relevant government code of conduct;
¡E Technical studies for a proposed “city in a city" to be built on reclaimed land in Kowloon. The plan has been widely derided as a disaster, and it is thought that the studies have been withheld because the government made serious errors;
In our last annual report, following two extensive surveys undertaken by the HKJA, we concluded that official attitudes to the disclosure of government-held information had become markedly more conservative since the handover and the assumption to office of Tung Chee-hwa as chief executive. Our findings, we believed, highlighted the need for the government to move quickly to counteract a new culture of executive-led insularity in government and also to enact access to information legislation to give legal effect to the public’s right to official information. With this past year’s further tightening of attitudes, the need for such legislation is now a serious, pressing issue.

The government continues to be rankled by the HKJA’s survey on the access code......and to try and undermine and discredit it

In its January 1999 report to the UN on the implementation of the ICCPR, the government released its own spin on the HKJA’s figures, making clear that its own findings did not tally with those of the HKJA. It argued that by disregarding documents that had not yet been completed or that the departments concerned did not possess, government departments had in fact provided 67% of documents requested by the HKJA. It went on to say that “the nature of the documents requested by the Association is not representative of that normally requested by general members of the public."
The government’s own statistics show that overall more than 88% of all requests for information made since the code was introduced in March 1995 are met in full or in part, and that only 2.3% are declined. Alongside the HKJA’s figures, which are derived from requests for information relating to issues of public interest, and even alongside those figures provided by the government on the HKJA exercise, these overall statistics suggest that many of the public’s requests for official information are routine (as indeed they prove to be under most access to information regimes), and do not cause difficulties for the government. However, the essence of an access to information system which fulfils the public’s right to information in its broadest sense is its ability to process requests which may be highly sensitive—and these generally make up only a small proportion of total requests.
The government’s ability to control official information, and release it at its own discretion, gives it undue influence over opinion-forming in Hong Kong. In the past year this is perhaps best exemplified by the government’s selective disclosure of a half-complete survey which seemed to indicate that, as a result of the Court of Final Appeal’s (CFA) ruling on the right of abode (see above), a wave of 1.67 million mainlanders would flood into Hong Kong over the coming decade. The staggering figure has had a tremendously adverse bearing on public opinion, which the government in turn used to justify its move to seek a re-interpretation of the Basic Law and (in effect) overturn the CFA judgment.

The government has undue influence over opinion-forming

Yet the survey’s findings, incomplete as they are at this stage, are quite clearly misleading. There was little effort to distinguish between first- and second-generation children, the latter (an estimated 980,000) only being eligible for right of abode upon the first generation having come to Hong Kong and lived in the SAR for seven years. The government also withheld key data that many of these potential migrants, even if they were legally entitled to the right of abode, would not wish to come. And it has also refused to provide full details of its calculation that the taxpayer would have to subsidise this influx to the tune of HK$710 billion. The alleged cost contains the assumptions that all 1.67 million migrants will be unemployed over the entire ten-year period; 80% will require and be eligible for public housing; and that, with HK$710 billion being spent, not a single job will be created.
Government spins aside, another related issue is the continuing refusal to open advisory committees to public scrutiny. In February 1998, the HKJA called on the administration to open up five key committees: the Advisory Council on the Environment, the Education Commission, the Broadcasting Authority, the Town Planning Board and the Transport Advisory Committee. All five have since refused to open their proceedings, although some have offered minor concessions. Complaints against broadcasters, for example, are now available on the Internet, and some decisions and minutes of meetings are released. These steps are to be welcomed, although they are still less than would be expected in a modern society.

Privacy: A new danger area?

Privacy is an area in which new threats may be emerging for media freedom. The HKJA has long supported the need to protect an individual’s privacy, and our ethics committee has often criticised media organisations for indiscriminately disclosing details of a personal nature without due regard to privacy. However, over the past year, new moves apparently aimed at protecting privacy have led to growing fears that media freedom may be compromised through well-meaning attempts to bolster privacy protection.
The Hong Kong government enacted the Personal Data (Privacy) Ordinance in August 1995. A privacy commissioner for personal data was appointed one year later, and the law came into force in December 1996. During much of the past two or more years the commissioner has focused on issues such as the use of identity card numbers and consumer credit data. However, it was always inevitable that those who felt their privacy had been violated by media organisations would eventually turn to the privacy commissioner to seek redress. Declining ethical standards in the media (see Section 2) have certainly aided this process.

A photographer may soon need an individual’s consent to take his/her photo in public

One consequence of this new avenue of complaint is that it may soon be inadvisable for a photographer to take a photograph of another individual in a public place without that individual’s express permission. This has come about partly as a result of a case in which the privacy commissioner ruled in October 1998 that it was not fair under the privacy law for a photographer working for Eastweek magazine to take a photograph of a woman in a street without her consent or knowledge. The photograph was published in the magazine in August 1997.
The magazine publisher appealed against the ruling to the Court of First Instance, arguing that the taking of the photograph was fair because, contrary to what the privacy commissioner was alleging, it did involve news-gathering. The case was adjourned until September 1999 following questioning by the judge, Mr Justice Keith, about whether the taking of photographs should be covered by privacy legislation at all. The adjournment has put on hold several other related privacy cases.

A code of practice for photographers may be imminent...

In this connection, the HKJA and ARTICLE 19 are particularly concerned about consideration being given by the privacy commissioner to the introduction of a code of practice designed to provide guidance as to whether photographers, working in public places, were or might potentially be in breach of data privacy principles set out in the law. Under a draft code seen by the HKJA, photographers would not be allowed to take unauthorised shots of people in public places, except in defined circumstances. These include where the individual is a public figure, where he or she has behaved in such a way as to invite the taking of photographs, and where the taking of the photograph is directly related to the reporting of a matter “that is reasonably considered to be of importance to the public".

...but this would unnecessarily restrict media freedom

Although such a code would not have the force of law, anyone who believes that the code’s principles had been breached would be free to complain to the privacy commissioner, who has broad powers to effect redress. These powers extend to searching premises, under a warrant, and bringing civil action for violation of privacy. However, it is our view at this early and formative stage of the privacy debate that the code of practice, and the powers which may be brought to bear to enforce it, are disproportionate to the social need and would unnecessarily restrict media freedom by impairing the ability of photographers to carry out their journalistic duties. While we recognise that privacy issues in the media are increasingly an issue of public concern, it is both dangerous and unhelpful that restrictions be placed on the taking of photographs in public places. This gathering of raw information is critical to a journalist’s task.

The focus, rather, should be on media self-regulation

Rather the focus should be on the publication of photographs, that is when they enter the public domain. This is, and should be in our view, at the editor’s discretion. We continue to believe that freedom of the media operates best within the context of self-regulation, without express restrictions. However, editors have a clear responsibility to act both within the established ethical boundaries of the profession, which give due regard to privacy constraints, and within the framework of the law. To not do so risks bringing professional rebuke, and may even bring litigation.
There are other potential danger areas in privacy also. In May 1998 the Law Reform Commission’s privacy sub-committee, which prompted the enactment of the Personal Data (Privacy) Ordinance, released a report on stalking. The report proposed, not unreasonably, that harassment of a person should be made a criminal offence, and that anyone found guilty be liable to imprisonment for up to two years. The sub-committee proposed three defences in mitigation—that the conduct was pursued for the purpose of preventing or detecting crime; that it was pursued under lawful authority; or that the pursuit of the course of conduct was reasonable in the particular circumstances.
The possible “defences" raise several difficulties, in the view of the HKJA, and may conceivably result in journalists being jailed for pursuing investigative work. In a submission published in August 1998, we expressed strong reservations about the proposals, arguing that the “reasonable in the particular circumstances" defence was inadequate in providing protection to journalists, given that the word “reasonable" is open to wide interpretation in the absence of any guidelines. The HKJA went on to suggest a tightening of the definition of harassment, the possible inclusion of a public-interest defence, and the introduction of a new defence based on the special characteristics of media activities.
The privacy sub-committee is now working on further reports which could have far-reaching effects on the media. They cover civil liability for invasion of privacy, and the regulation of media intrusion. One or more of these reports is set to be released in mid-1999, although the secretary of the Law Reform Commission said in January 1999 that “one of the aspects to be considered is whether some sort of code of conduct should be adopted or should there be any independent statutory body." Such a move would be of great concern to the HKJA .

Section 2
The media

The media remains torn between political and economic pressures

In the year under review, the local media remained torn between political and economic pressures, though the latter seemed to exert a more powerful impact on the overall development of the sector. On the one hand, the media continues to enjoy the freedom to print and broadcast opinions of a critical nature, much as we reported in our 1998 Annual Report. On the other, there are disturbing signals in the air, including a continuing trend towards a market dominated by two newspaper groups, and the increasing tendency of some publications to resort to sensationalism to boost market share or simply to survive in an ever more competitive marketplace. This has spawned a debate about media ethics, and whether more concrete steps should be taken to regulate media activities. This in itself could pose a threat to freedom of expression.

Self-censorship remains a threat...

Self-censorship is still a threat to media freedom, but probably no more than we reported in our 1998 publication. We continue to hear reports that certain publications or broadcasters have played down sensitive issues concerning dissident or separatist activities in China. For example, a prominent Chinese dissident, Wang Dan, reported during a visit to Taipei in March 1999 that some Hong Kong editors, in discussing possible articles, would “ask me to shy away from stuff that is too sensitive politically." We were also told that a television station had cut back to just one episode its original plan to broadcast a six-part series on Tibet. However, some observers see the broadcasting of even a single episode, which included excerpts from an interview with the Dalai Lama, as positive.
There were instances also of sensitive news being played down. Little coverage was given, for example, to the detention of a Taiwanese journalist in August 1998 in China’s sensitive Muslim region, Xinjiang. The journalist was accused of breaching national security laws, but was released by the Chinese authorities 24 hours after being detained. There was also only moderate coverage of the release from prison in February 1999 of mainland journalist, Gao Yu. Ms Gao was released on medical parole after serving most of a six-year jail term for allegedly divulging state secrets to Hong Kong publications.

...but some publications take a strong line

However, it should also be noted that the Hong Kong print media does continue to report quite extensively on Chinese dissident activities, and regularly carries reports issued by a Hong Kong-based group, the Information Centre of Human Rights and Democratic Movement in China, which often breaks news about China’s opposition, labour and dissident movements. Some newspapers have also continued to be fiercely critical of the policies of the SAR and Chinese governments. The Apple Daily, the Hong Kong Economic Journal and the South China Morning Post, for example, were each highly critical of moves by the SAR government to ask the NPC Standing Committee to re-interpret provisions in the Basic Law on the right of abode (see section 1). Other newspapers either backed the government or took a middle-of-the-road approach to the controversy.
The media also gave extensive coverage to the tenth anniversary of the suppression of the 1989 pro-democracy movement in China. Coverage had been slipping over the past few years, but the special significance of this year’s anniversary prompted newspapers and broadcasters to devote more space and time to analysis of the event. Many organisations also gave prominent coverage to the June 4th candle-light vigil in Victoria Park, which attracted a higher-than-expected turnout (70,000, organisers claim), and the decision by the government to deny visas to 11 exiled mainland dissidents who had been invited to participate in anniversary events (see section 1).
On the mainland itself, where Hong Kong newspapers and broadcasters place considerable emphasis on covering news and current-affairs developments, the activities of journalists continue to be hampered by the media restrictions imposed by mainland authorities in October 1989, shortly after the suppression of the pro-democracy movement (see 1993 and 1994 reports for a full description of the regulations). Under these regulations, journalists working for Hong Kong media organisations have to apply for permission to cover specified events on the mainland. The regulations continue to be used on an ad hoc basis to block coverage by organisations and individuals considered by Beijing to be “unfriendly", including the Apple Daily and its sister publication, Next Magazine, or to prevent coverage of an issue China prefers not to be covered.

Mainland regulations threaten Hong Kong journalists

In this latter context, the regulations were invoked in June 1999 in an effort to block reporting on a matter of vital interest to the Hong Kong public, namely the government’s move to seek an interpretation of the Basic Law (see Section 1). Without permission many local journalists travelled to Beijing to cover the progress of three Hong Kong students hoping to deliver a petition to the NPC Standing Committee against interpretation. Security officers in Beijing detained eleven journalists and seized their film and videotapes. The journalists were released after signing confessions. However, no attempt was made to expel the journalists, who continued their media activities in the capital.
Security officers also barred journalists from covering a meeting of the Basic Law Committee, which was responsible for discussing and forwarding a report to the NPC Standing Committee to help it decide on the question of interpretation. A Hong Kong member of the Basic Law Committee, lawyer Maria Tam, initially agreed to meet journalists on a regular basis, but she withdrew the invitation after security officers intervened. The chief spokesman for the Hong Kong government, Stephen Lam, responded by saying that journalists must abide by local regulations while working in China.

Threats to media diversity

The duopoly in the printed media strengthens...

We have reported before the tendency towards a duopoly in the influential Chinese-language newspaper industry shared by Apple Daily and the Oriental Daily News, by far the largest circulation newspapers in Hong Kong. This has been complicated further by the launch of a new broadsheet, The Sun, by one of the two dominant groups, the Oriental Press Group, owner of the Oriental Daily News. The launch signalled the start of a new price war, with all the dangers that poses for the survival of marginal newspapers. It should be noted, though, that no major publication has folded during the year under review.

...as a new price war is launched

The original price war was prompted by the launch of Apple Daily in June 1995, following which there were two more rounds of competitive price-cutting before the launch of The Sun, in March 1999, prompted the latest and fourth round. During the latest round, Apple Daily lowered its newstand price from HK$5 to HK$3, to prevent The Sun, which was first selling at HK$2 and later at HK$3 per copy, from taking away its readers. The Oriental Daily News found it necessary to follow suit and reduced its cover price from HK$4 to HK$3 per copy. Another mass-oriented newspaper, Sing Pao Daily News, also cut its retail price, albeit to coincide with its 60th anniversary. Two other newspapers of a similar nature, Tin Tin Daily and the Hong Kong Daily News, refrained from lowering their prices, apparently because any such move would involve significant financial losses. They instead gave out gifts to loyal readers and vowed to improve their contents.
Other Chinese-language newspapers, including the Hong Kong Economic Journal, Hong Kong Economic Times, Ming Pao and Sing Tao Daily, kept out of the price war altogether, as they have done since the launch of Apple Daily. The two English-language newspapers, the South China Morning Post and Hongkong Standard, were also not affected.
According to British experience, it usually takes seven weeks or more for readers to become used to a new newspaper. On this basis, analysts estimated that the price war triggered by the launching of The Sun in March would last for at least two months. They may not have been far off. In mid-June, signs of a cease-fire were in the air. Apple Daily increased its price back to HK$5, as has the Oriental Daily News. The Sun’s price has remained constant at HK$3. Whether this presages the end of the price war is unclear.

The effect on media diversity remains uncertain

Assessing the impact of this latest price war on the newspaper sector, and specifically on media plurality and diversity, is difficult at this stage. It is uncertain whether the new entrant, The Sun, for example, has been able to coax readers away from Apple Daily, or from its sister publication, the Oriental Daily News, or from other publications with weaker circulations. What is certain, however, is that newspapers, including the above market leaders, will have lost money by cutting their prices. The former publisher of Apple Daily, Loh Chan, told a conference in late May 1999 that Apple Daily had lost HK$20 million in the month after the price war broke out.
Comparable figures are not available for the Oriental Press Group. However, its 1998 financial results showed a move into the red. In the half-year up to the end of September 1998, the group reported an operating loss of HK$13.3 million, compared with a profit of HK$145.6 million for the same period in 1997. The group attributed the decline to investment in preparing The Sun, a price cut for the Oriental Daily News in April 1998, and a reduction in advertising revenue, which has affected all newspapers during the current economic downturn.

The media reports losses...

It is worth noting that substantial operating losses were also reported by four other listed newspaper publishers. Over the same six-month period, the Sing Tao Group lost HK$62.2 million, the Hong Kong Daily News HK$37.1 million, the owner of Tin Tin Daily News HK$28.5 million, and Ming Pao Enterprise HK$5.9 million. Intensified competition resulting from the price war will probably lead to further losses.
However, there was a silver lining to the launch of The Sun. It created 700 jobs for reporters, editors, photographers and graphic designers at a time of general recession in the industry. The move was much welcomed by the media industry, which had witnessed the closure of several newspapers over the previous year.

...but there were no major newspaper closures

However, while there were no substantial closures during the year under review, some of The Sun’s competitors did reduce their workforces in a bid to control costs. According to Loh Chan, Apple Daily laid off 100 people, most of them junior staff earning relatively low salaries of around HK$10,000 a month. Several other publications and broadcasters also sacked staff, cut or froze salaries, or scrapped supplements, in a bid to contain costs.
Pro-Beijing newspapers also had to face up to the impact of the economic downturn. The three major publications (Ta Kung Pao, Wen Wei Po and the Hong Kong Commercial Daily) were reported to have considered a merger. However, the authorities in Beijing opposed the move, according to the reports, fearing that the newspapers would lose their unique characteristics. They were instead urged to find ways to cut costs.
A few minor publications folded, including Asia Magazine, which was published by the South China Morning Post in conjunction with three regional newspapers. In the electronic media, the biggest setback was the decision by the Taiwan owners of China Television News to relocate their headquarters from Hong Kong to Taiwan. This move, in February 1999, resulted in the redundancy of 150 media workers, and followed the station’s failure to make any inroads into the China market.
The most uncertain consequence of both the price war and the economic downturn is the effect these factors will have on media diversity, which is so vital to the retention of press freedom. If these trends force more publications to close, it could mean fewer voices in the marketplace and a shrinking of media diversity. However, it should be noted in this context that the two market leaders, Oriental Daily News and Apple Daily, represent radically different voices.
Before the current price war started, Oriental Daily News and Apple Daily together commanded more than 75% of the market. The remaining 25% was shared by about ten Chinese-language dailies and two English dailies. According to the 1998 AC Nielson-SRG Media Index Hong Kong General Report, the Oriental Daily News commanded an average daily readership of 2.1 million, compared with 1.9m for Apple Daily. Laying far behind in third place was Sing Pao with 335,000 readers. These figures apply to the period from July 1997 to June 1998.
A comparison by circulation is not possible because the Oriental Press Group is not a member of the Hong Kong Audit Bureau of Circulation (ABC). The ABC figures for the second half of 1998 shows that Apple Daily had a daily circulation of just over 402,000, followed by the South China Morning Post, with 111,000. The Oriental Press Group claimed a maximum circulation of 650,000 for the month of November 1998.
The emergence of The Sun tilted the market balance further. Newspapers not belonging to the two big camps were being marginalised. Some analysts have predicted that a few money-losing titles are likely to disappear because of ever-dwindling readerships. If that turns out to be the case, there will be fewer channels to air public views. This could well be detrimental to press freedom.

Media ownership changes

The Sing Tao media group changes hands...

The one significant ownership change in the year under review affected the Sing Tao group, which publishes the Sing Tao Daily and the Hongkong Standard and holds a minority stake in the Tin Tin Daily News. We noted in our 1998 report that a take-over bid by a pro-Beijing businessman, Cha Chi-ming, had collapsed. We further asked whether the owner of Sing Tao Holdings, Sally Aw Sian, would seek another “red capitalist", who would be willing to invest in her newspaper.
A sale has since been secured, but not to a “red capitalist". In April 1999, shareholders of Sing Tao Holdings approved a HK$524 million deal allowing the investment bank, Lazard Asia, to take over the group from Ms Aw. This move effectively ended the Aw family’s 60-year involvement in Hong Kong’s newspaper history.
The banking group had to beat off a rival consortium (comprising two Dublin-listed investment funds—China Enterprise Development Fund and Investment Company of China—plus US property tycoon Sam Zell) to win control of Sing Tao. But in the end, it was the involvement of the managing director of Hong Kong Tobacco, Charles Ho Tsu-kwok, who helped clinch the deal. Mr Ho was Ms Aw’s biggest creditor, and as part of the deal, he undertook to drop bankruptcy proceedings against Ms Aw upon completion of Lazard’s purchase agreement. Sally Aw lost her 50.04% stake in Sing Tao Holdings, but was allowed to remain a consultant for six years, earning HK$9 million annually. She will also receive a HK$58 million loan to help repay her debts, and be involved in a profit-sharing arrangement.
Ms Aw lost control of Sing Tao after making a series of questionable investments. She had been on the verge of bankruptcy when the Asian financial crisis squeezed out easy credit for Asian tycoons. Her downfall was accelerated by a scandal involving falsified circulation figures for the English-language daily, the Hongkong Standard. She was named as a co-conspirator, but never charged. In January 1999, three serving or former Hongkong Standard executives were found guilty of falsifying circulation figures and sentenced to jail terms of between four and six months.

...but its effect remains uncertain

Following the take-over of Sing Tao Holdings, questions were asked about Lazard Asia’s plans for its newspapers, and whether there would be any role for Pearson, the British conglomerate that publishes the Financial Times. Pearson has a 50% stake in Lazard Brothers, which is the arm of the investment bank that owns Lazard Asia. Lazard Asia’s chief executive officer, Patrick Cheung Din-youn, said the group should concentrate on its core business of newspapers and publishing. Stanislaus Tsao Kwang-ngo, formerly a senior executive with ATV, was appointed interim chief operating officer of Sing Tao Holdings. Three senior journalists were also appointed to top editorial positions in the group. However, there are no indications yet of any changes to the format or contents of either the Sing Tao Daily or the Hongkong Standard.
In a related development, Sing Tao Holdings sold 32% of its stake in Culturecom, which owns the Tin Tin Daily News. The sale, in November 1998, left the group with a shareholding of 11%. Analysts believed the sale was related to Ms Aw’s financial problems.

The electronic media

The government decides to open up the TV market...

The most important issue in the year under review has been the government announcement in December 1998 to open up the television market and to introduce digital TV services. The secretary for information technology and broadcasting, K.C. Kwong, said the overall aim of the plan was to speed up technology transfer, attract new investments, stimulate the growth of broadcasting and related industries and create new employment opportunities. He said the move would also widen the choice of viewers and enhance Hong Kong’s position as a leading broadcasting hub in the region.
In particular, the government announced that it would not limit the number of free-to-air licenses to be issued. Currently, TVB and ATV operate four TV channels with territory-wide coverage. The government said a fifth channel was not feasible at the moment due to spectrum constraints. However, it would consider applications for new licences transmitted through other technically feasible means such as general and direct-to-home satellites.
Officials also revealed that a steering committee would be set up to co-ordinate technical trials by TVB and ATV for digital terrestrial television broadcasts. The two stations will bear all costs and make the outcome available to the industry and the public. The government expects to choose a standard for digital TV in the year 2000.
It was also decided that fixed telecommunications network services, which provide fixed telephone services, would be allowed to carry television services and cable TV networks for the delivery of various telecommunications services. Officials say these measures will allow cross-fertilisation between the telecommunications and broadcasting markets, with the ultimate aim of total convergence. In practical terms, the cable operator, Hong Kong Cable (formerly Wharf Cable) will have to open up its broadband network to allow interconnection with other telecommunications and television networks. Effectively, Hong Kong Cable will have to compete with the dominant telecommunications network, Cable & Wireless HKT.

...and anti-competitive measures will be introduced

These changes will be included in a new omnibus broadcasting bill, which is scheduled to be introduced into the Legislative Council in 1999. The bill will also include provisions guarding against abuse by a dominant licensee, through controls on predatory pricing, price discrimination, tying arrangements, and discrimination in the supply of services to competitors. However, exclusive broadcasts and contracts for employees and artists, which are commonly accepted practises in Hong Kong, will be allowed.
Further, cross-media ownership restrictions will continue to apply to domestic free-to-air and pay TV services, to avoid conflict of interest and a build-up of control by a single media operator. However, in a change to the existing law, programme suppliers and companies which transmit sound or television material inside or outside Hong Kong will be allowed to tie up with broadcasters.
In a further development in May 1999, the government approved a three-year licence renewal for ATV and TVB. Officials say a short-term renewal has been approved to allow time for the development of a longer-term policy on digital TV.

The pressure for self-regulation

Another disturbing trend in the year under review has been the move towards greater sensationalism in the media, as the dominant groups tried to increase market share. Journalists found it increasingly difficult to maintain a high standard of media ethics, especially under the conditions of economic recession and severe competition.

Sections of the media resort to sensationalism...

As we noted above, the trend began in June 1995, with the launch of Apple Daily, and the bitter circulation war that followed. Competition forced the mass-oriented newspapers to produce ever more sensationalist crime and entertainment reports. There were gory photographs of suicide, crime and traffic accident victims, as well as purported Internet pictures of female students changing in their dormitory rooms. There was also sensationalist reporting of what many observers considered to be a non-story—a reported suicide attempt by pop superstar Leon Lai. This story turned out to be completely fictitious, but it did not prevent some newspapers from devoting several pages to trivia about Mr Lai’s life, including transcripts of some of the singer’s telephone conversations.

...bringing into question ethical standards

Concern over questionable ethical practices came to the forefront in October 1998, when newspapers splashed stories about the sexual exploits of a man called Chan Kin-hong. He was photographed in bed with prostitutes in the Chinese town of Dongguan, just days after his wife murdered their two children and then jumped to her death. In one case, money changed hands in exchange for permission to take pictures of Chan in bed with the prostitutes. The newspaper in question, Apple Daily, subsequently published a front-page apology for its actions. This was a first for Hong Kong, although some observers saw it as a publicity gimmick.
Media malpractices were not confined to newspapers and magazines. The electronic media was equally at fault. Complaints to the government’s Television and Entertainment Licensing Authority rose 10% in 1998, compared with the previous year. The majority of complaints focused on two issues—extensive coverage of Chan Kin-hong’s exploits in so-called “infotainment" programmes, and the use of scantily-clad women to promote beauty pageants. The Broadcasting Authority fined the two terrestrial stations, ATV and TVB, a total of HK$150,000 over their coverage of the Chan Kin-hong case.
This growing trend towards sensationalism has prompted a backlash in certain quarters. Social groups started discussing the issue. One—a group called the Society for Truth and Light—was formed with the specific mission of pressuring the media to change its ways and persuading the public to boycott publications singled out for particular criticism. Legislators also started to debate the issue.

Public opinion polls question the media’s credibility

Sensationalist practises prompted the public to question the credibility of the media. A survey conducted by the University of Hong Kong in January 1999 showed that 41% of respondents thought the media was irresponsible in its reporting, compared with about 29% in September 1998. The HKJA conducted a survey of its own members, finding that almost 80% of respondents thought ethical standards were worse than a year before. They were particularly worried about sensational or disgusting photographs, too much sex and exaggerated reports. They also believed that commercial pressures and competition were the main reasons for declining ethical standards.
The government started exerting indirect pressure on the issue, while maintaining that it would not interfere in the free running of the media. The chief executive, Tung Chee-hwa, called on the media to shoulder more social responsibilities, when he gave a speech to a media group in November 1998. Political parties also took up the issue in the Legislative Council. Meetings were held with media groups in November 1998 and April 1999.
The HKJA proposed the creation of a body called the media ethics forum, which would comprise representatives of the public who are interested in media matters, and who would want to promote better media ethics. It would act as a pressure group and a centre for education on the media. Several exploratory meetings were held with interested individuals, but little progress was made in setting up a formal group.
Another media group, the News Executives Association, proposed the creation of a media council comprising only professionals, and said a few months later that it was drafting a code of ethics for its members. This would supplement the HKJA’s code, and the union’s work in considering public complaints about the performance of the media. It should be noted that all media groups who have been involved in meetings with legislative councillors have opposed any government role in this process.

Any form of media policing would be unwelcome

The HKJA remains concerned that pressure could grow for the media to be “policed", if the sensationalist trend continues. This could involve the creation of a press or media council, which could in turn open the door to government interference, for example through the creation of a statutory organisation policing the industry. Many media observers argue that this would be most unwelcome, in particular as there are insufficient democratic and judicial safeguards in place to guarantee freedom of expression.
Another by-product of declining ethical standards might well be a drop in support for the media if the government enacts legislation limiting press freedom. The test might come when the government proposes legislation outlawing treason, sedition, subversion and secession (see section 1). Media professionals have for several years expressed concern about the dangers such legislation could pose to freedom of expression. A profession without strong public support may well find itself unable to win such a battle.

Violence against the media

A leading commentator is attacked

In August 1998, one of Hong Kong’s most outspoken talk-show hosts, Albert Cheng King-hon, was seriously injured in an attack by two assailants in the grounds of Commercial Radio, for whom he hosts a regular morning programme. Mr Cheng suffered deep chop wounds, which he later admitted could have killed him. The police made 17 arrests, but they failed to press charges or establish any motives for the attack. The assault, which had a traumatic effect throughout the profession, prompted condemnation from all media groups in Hong Kong. There had been media speculation also that the attack was a reprisal for views expressed by Mr Cheng on his programme. Mr Cheng has now resumed his job.
This has not been the first case of violence against the media. In December 1995, the owner of Apple Daily, Jimmy Lai, was injured in a robbery at his home. Some analysts linked the incident to the price war which had erupted following the launch of his newspaper in June 1995. In May 1996, the publisher of Surprise Weekly, Leung Tin-wai, had his left forearm chopped off shortly after his magazine was launched. Neither case has been solved.

The increasing use of libel suits

The past few years have seen more individuals resorting to legal action to settle disputes with the media. For example, a high-profile lawyer and commentator, Paul Tse Wai-chun, successfully sued talk-show host Albert Cheng King-hon and his co-host in a case that raised serious concerns in the media about the effectiveness of the “fair comment" defence in defamation suits.
At the same time, there has been an increase in the number of libel suits within and between the media. In February 1999, the Oriental Daily News carried a report which revealed that its owner, the Oriental Press Group, had been involved in a total of 51 suits against publications, broadcasters, media organisations and media workers since 1995, some of them still ongoing. The actions had involved more than HK$24 million in legal costs for the group. The report noted 13 cases against the Next Media group, owned by Jimmy Lai, nine against the Ming Pao Group, five against the Hong Kong Economic Journal and three against Radio Television Hong Kong (RTHK), among others.
Perhaps the most notable of the actions involving RTHK concerned aspects of a Media Watch programme broadcast in March 1995. The Court of Appeal, overturning the decision of a lower court, found that both RTHK and the programme presenter, Claudia Mo, were liable for defamation in relation to comments made by Ms Mo about the nature of libel suits brought against the media by the Oriental Press Group. The case is set to go before the Court of Final Appeal. RTHK’s lawyer, Robert Tang, had previously argued in court that the threat of libel action was an issue of great public importance since it could affect freedom of expression, and could deter the media from voicing criticism on controversial matters of public interest.
The HKJA and the Hong Kong Press Photographers' Association are both currently involved in separate libel actions brought by the Oriental Press Group. Both cases relate to the contents of press releases issued in June 1998 following a scuffle between a manager working for the Oriental Press Group and a photographer working with the Ming Pao Weekly magazine. The photographer was subsequently sent to hospital with a dislocated shoulder, and the manager charged with assault occasioning actual bodily harm. A magistrate in October 1998 found the manager not guilty, following which the Oriental Press Group brought a number of cases against those who had spoken out in support of the photographer. This included the HKJA and the Press Photographers' Association. Under legal restraint, the HKJA is unable to comment any further at this time.

Contempt of court proceedings

An editor goes to jail for contempt of court

In June 1999 the Court of Final Appeal denied permission to the former chief editor of the Oriental Daily News, Wong Yeung-ng, to have his appeal heard against conviction for contempt of court. This ended his battle against a four-month prison term, which was imposed in June 1998. Both Mr Wong and the Oriental Press Group were found guilty of criminal contempt in connection with a campaign against the judiciary and a three-day paparazzi watch against a High Court judge in January 1998.
In making his ruling, the Court of Final Appeal judge, Mr Justice Litton, said that the four-month jail term “appears extremely lenient". He went on to say that where the person responsible “goes way beyond reasoned criticism of the judicial system and acts in bad faith, as the appellant has in this case, the guarantee of free speech cannot protect him from punishment."
The Oriental Press Group, in a statement, regretted the Court of Final Appeal decision. It went on to say: “We think this case happened because the Oriental Press Group cannot get justice in various cases and thus has such a response. We are deeply sad because of this case, which has constituted damage to freedom of speech."








Correction. The 1998 Annual Report stated that Lee Yee, the chief editor of the now-defunct magazine The Nineties, had joined the Apple Daily as an advisor. In fact he became a columnist for the newspaper.

ARTICLE 19, INTERNATIONAL CENTRE AGAINST CENSORSHIP

ARTICLE 19 takes its name and mandate from Article 19 of the Universal Declaration of Human Rights which proclaims the fundamental right to freedom of expression. ARTICLE 19 works impartially and systematically to identify and oppose censorship in its many forms, to defend victims of censorship and to promote strengthened national and international standards for the protection of freedom of expression.
ARTICLE 19 monitors individual countries' compliance with international standards protecting freedom of expression, and regularly makes submissions to inter-governmental organizations such as the United Nations Human Rights Commission and Committee and the European Court of Human Rights. ARTICLE 19 has an international membership.
International board
Zeinab Badawi, Chair; Geoffrey Bindman, Honorary Treasurer; Peter Baehr; Kevin Boyle; Param Cumaraswamy; Salah El-Din Hafez; Paul Hoffman; Cushrow Irani; Jodi Kollapen; Daisy Li Yuet-wah; Goenawan Mohamad.
Executive Director: Andrew Puddephatt
ARTICLE 19, International Centre Against Censorship
Lancaster House
33 Islington High Street
London N1 9LH
United Kingdom
tel +44 171 278 9292 e-mail article19@gn.apc.org
fax +44 171 713 1356
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HONG KONG JOURNALISTS ASSOCIATION

The Hong Kong Journalists Association (HKJA) is the only industry-wide union of journalists in Hong Kong. It has more than 800 active members.
The HKJA promotes the right to freedom of expression and actively focuses on a range of press freedom and ethics concerns. Its trade union activities include issues of pay, labour rights and disputes, health and safety, and training.
Executive Committee (1999-2000)
Mak Yin-ting, Chair; Cliff Bale; Chan Yuen-man; Fung Wai-kong; Charles Goddard; Carol Pui-yee Lai; Stanley Leung Kam-hung; Daisy Li Yuet-wah; Gren Manuel.
Executive Secretary: Ada Ma Wai-man
Hong Kong Journalists Association
Flat A, 15/Fl
Henfa Commercial Building
348-350 Lockhart Road
Wanchai
Hong Kong
tel +852 2591 0692 e-mail hkja@hk.super.net.
fax +852 2572 7329 internet www.freeway.org.hk/hkja/
ISBN 1 902598 12 1