Recently, the Tang Lin-ling case has sparked off much public outcry. Not only did Ms. Tang take pictures in the courtroom and upload them on Wechat Moments, but also when she was asked to explain her act, she proudly remarked that I would take photos whenever I liked, I would even take selfies with you (the judge) if I wanted to. Subsequently, the High Court charged and convicted her criminal contempt of court based on taking photos and sentenced her 7 days of imprisonment. She was repatriated from Hong Kong right after she served her sentence.
In fact, there has long been regulations for photography in the courtroom. According to Section 7 of Summary Offences Ordinance (Cap. 228), no one is allowed to take photos in the court building. In line with such regulations, signs of no photography are clearly held both inside and outside the courtroom. Nonetheless, the recent incidents demonstrated that the public do not take this regulation seriously and even the Judiciary takes a lenient approach to settle similar incident. For example, prior to the Tang Lin-ling case, a Mainland tourist took pictures in the courtroom and uploaded the photos on Wechat, but the court did not take the behavior seriously. It only required the said tourist to delete those photos taken and leave the court. Moreover, the media discovered that some PRC travel sites have published a guide to teach people how to take pictures inside the courtroom of Hong Kong court. These override the current regulations and tarnish the court’s solemnity.
A. Practice direction and circular on use of mobile phones and other devices in courtrooms
In response to the prevalent courtroom photography incident, the High Court has promulgated practice direction on 15th June 2018 to strengthen the restriction on bringing and using devices which contains photography functions. The practice direction includes:
- Regardless of whether the court is in session, all general court users entering a courtroom where a jury proceeding is held must switched off all devices with photo-taking and/or video-recording capacity and put them into bags or pockets;
- The court may authorize any relevant officials to search and inspect general court users for the compliance of the practice direction;
- The restriction of using mobile phones and other devices may also be extended to cover other individual proceedings, if appropriate; and
- Non-compliance with the practice direction may result in being charged with criminal contempt of court or under the head of section 7 of the Summary Offences Ordinance.
In addition, the Law Society of Hong Kong also issued circular on 16th July 2018 regarding the same matter, in particular:
- The Judiciary would make public announcement reminding the court users the restriction on photo-taking in the courtroom;
- The Judiciary has put up more notices and signs regarding prohibition of photo-taking inside the courtroom and the court building;
- The Judiciary would remind court users, both verbally and in written notice, the prohibition of photo-taking in court;
- The Judiciary has strengthened the security personnel manpower to monitor the court process; and
- The legal personnel may apply to the Judiciary through fax to be exempted from the above restriction. The said legal personnel must wear an identification badge inside the courtroom.
B. Criminal contempt of court
The verdict of Tang Lin-ling case highlights the Judiciary’s emphasis on no photography in the courtroom. Not only the Judiciary promulgate new practice direction, but also for the very first time convicting a person with criminal contempt of court by the act of photo-taking. Criminal Contempt of Court is a common law offence, which would generally mean any person who willfully conducted any act or spoke any words, which disrupt the administration of justice, and such acts or words are neither casual, accidental nor unintentional. Therefore, criminal contempt of court covers a wide scope, including but not limited to:
- Disruptive behavior on the court proceedings or insulting behavior against the judge or the judicial officer;
- Witnesses refusal to be sworn;
- Publishing libel expression outside court;
- Publishing reports which would affect the fairness of trial during trial process; and
- Interrupting the execution of court order etc.
Depending on the seriousness of each case, the court may impose fines or imprisonment with reference to the precedents.
Apart from common law, section 99 of the Magistrates Ordinance (Cap. 227) and section 20 of the District Court Ordinance (Cap. 336) provides that on summary conviction, the court can punish the offender who contempt the court, and may impose to a fine of HK$10,000 and sentence of imprisonment of 6 months and 2 years respectively.
C. Reasons for prohibiting photo-taking in courtroom
There are sounding reasons to attach criminal liability on photo-taking behavior in the courtroom. The most prominent reason is to protect the administration of justice. In the Regina v Vincent D case in 2004, Lord Aikens mentioned how photo-taking in the courtroom would affect the fairness of a trial:
“Intimidation of juries and witnesses is a growing problem generally in criminal cases. Recently there have even been physical attacks on prosecuting counsel in a case. A person could use photographs of members of the jury or a witness or advocates or even a judge in order to try to intimidate them or to take other reprisals. Witnesses who are only seen on a screen or who are meant to be known only by an initial could possibly be identified. The anonymity of dock officers or policemen who are involved in a case could be compromised if a photograph is taken and is used to identify them. It is clear, therefore, that illegal photography in court has the potential gravely to prejudice the administration of criminal justice.”
Apart from that, the prohibition can also protect the victims and their families from further unnecessary pressure. Like in the case of Solicitor General v Cox in 2006, the judged ruled that even if the defendant was not intending to hamper the administration of justice, it could bring long-lasting harm to the families and the victim. Therefore the court must take the behavior seriously.
The Tang Lin-ling case was said to be escalated to country level. This is because Ms. Tang argued that the court in Mainland China would allow taking photos in court and live-recording the trial to demonstrate transparency of the judicial process. However, the Mainland Judiciary also has relevant regulations restricting photo-taking in the courtroom. According to section 17 of Court Rules of People’s Courts of the People’s Republic of China (Revised in 2016) (中華人民共和國人民法院法庭規則), anyone should not take photographs, record in the forms of audio or video, or use mobile telecommunication device to spread the trial process. Section 19 further provides judges with the power to give warning, impose admonitions, order the person violating the rules to leave the courtroom and instruct judicial police to forcibly take the said person out of the courtroom. The court may further temporarily seize the device from the said person and delete the content if appropriate. Hence, although the scope of restriction in Mainland China is less broad, and the punishment is less serious, the rule in Chinese court demonstrates that both Hong Kong and China prohibit against anyone to take photographs or record in the courtroom.
Upon the verdict of Tang Lin-ling case and the promulgation of the new Practice Direction, the Hong Kong court would have a clear guideline to handle photo-taking incidents in the courtroom seriously. The public shall strictly observe the Direction to prevent breaking the law.
(This article is only for reference and cannot be relied upon as legal advice or opinion in any event. Should you have further enquiries, please consult relevant legal professional for legal advice.)
