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Tuesday, Sep 29, 2020

Hong Kong’s Apple Daily taking legal action after police raid on offices as government adviser says journalists’ desks should be considered ‘private area’

Editor-in-chief Ryan Law says they decided to seek an interim injunction order as ‘journalistic materials’ were included in documents seized by police. Executive councillor and barrister Ronny Tong says police have right to enter office but desks and drawers are ‘privately managed areas’

Apple Daily will seek an interim injunction order in relation to a police raid on the newspaper’s offices, as a top government adviser and lawyers also questioned the force’s sweeping search powers.

The action by the tabloid-style newspaper came a day after the arrest of its founder Jimmy Lai Chee-ying and six others linked to the media outlet under the national security law, in the most high-profile operation since the legislation was imposed by Beijing six weeks ago.

Amid an outcry sparked by the raid’s implications for press freedom, the daily’s editor-in-chief Ryan Law Wai-kwong, told the Post they decided to seek an interim injunction order as “journalistic materials were included in the documents of Apple Daily Charitable Foundation seized by police”.

Without giving details about the proposed interim injunction, he said lawyers had already applied on Monday night for seized materials stored on hard drives, including articles, photos and video footage of news reports relating to the foundation, to be sealed.

At least 30 boxes of documents and three hard drives from various departments were seized in the nine-hour search, Apple Daily reported on Tuesday.

On a radio programme, Law also questioned the legality of the operation, as police rejected his requests – as one of the key people in charge of the offices – to find out the scope of the warrant during the raid.

“I also asked [police] to hold back the operation until lawyers arrived and read the order. But they refused to do so,” he said.

The search began at around 10am and the paper’s legal representatives only arrived about an hour later.

Video footage showed officers briefly showing the search warrant to a security guard at the entrance of the Tseung Kwan O offices as about 200 officers entered on Monday morning. Officers were seen flipping through documents on various desks of journalists during the search.

Police later said the offices of some of those arrested were on the same floor as the editorial department, but maintained they did not pry into journalists’ work as they did an “initial screening” to determine what constituted editorial materials.
But Ronny Tong Ka-wah, a barrister and member of city leader Carrie Lam Cheng Yuet-ngor’s Executive Council, said desks should be considered private. “[Police] have the right to enter the office area, but for individual workers’ desks and drawers, these are privately managed areas,” he said.

“If police officers wish to open someone’s private drawer, they should seek approval from the owner of the drawer, as well as his or her acceptance that the search warrant’s power covers the area of the private drawer.”

Section 50(7) of the Police Force Ordinance empowers officers to enter premises, search any person with a warrant granted by a magistrate but does not authorise them to search for or seize “material which is known or suspected to be journalistic material”, unless they make applications to higher courts.

“Journalistic material” is defined as “any material acquired or created for the purposes of journalism”, according to Section 82 of the Interpretation and General Clauses Ordinance.

Opposition lawmaker and lawyer James To Kun-sun believed officers had exceeded the power of the warrant in examining journalists’ materials, and said if disputes happened, “the item in question should be sealed up and be taken to the court, which will then make a decision”.

Lawyers also questioned other police practices during the search. Officers, as shown in footage, cordoned off the whole floor where the editorial department was located during their search of Lai’s office. Staff were initially told to stop live broadcasting the operation or risk “getting into trouble” for obstructing officers.

Simon Young Ngai-man, associate law dean at the University of Hong Kong and a barrister, was worried that the police search would have a direct impact on freedom of the press, which was protected under Article 27 of the Basic Law, the city’s mini-constitution.

“One would think that any search of the offices of any established media will trigger such protection, particularly when the operations and newsroom of an established newspaper are interrupted and journalists are unable to perform their work,” he told the Post.

Barrister Anson Wong Yu-yat said a golden rule to judge the appropriateness of a search was whether the actions officers took were “reasonably necessary”.

“Were staff members attempting to destroy relevant evidence or obstruct the police operation? If not, barring them from filming or returning to their own seats could be deemed unnecessary,” he said.

But he said there was a small chance for the media outlet to successfully challenge the validity of the search or seek any remedy in its latest legal actions.

Eric Cheung Tat-ming, principal law lecturer at the University of Hong Kong, said the presence of legal representatives during the search was important to help police differentiate whether the documents were editorial materials.

“Lawyers have the right to raise objections immediately if officers take away documents they regard as editorial materials,” he said. “Supervision at a reasonable range could prevent potential disputes over the planting of evidence or abuse of search powers.”

Chief Superintendent Kwok Ka-chuen told a radio programme the warrant had been shown “multiple times” when police entered the premises, and again when lawyers arrived.

“As it was a relatively sudden and confidential operation, and the editor-in-chief only arrived at a later time, it was impossible that during a police operation we would wait for a particular person to arrive before operations could be carried out,” he said.

In Hong Kong, previous search and seizure operations by law enforcement bodies had sparked controversy. In 2004, 14 Independent Commission Against Corruption search warrants were executed against seven newspapers and the offices or homes of several journalists.

Justice Michael Hartmann, then of the Court of First Instance, ruled in favour of Sing Tao Daily which challenged the validity of the search warrants. In his ruling, he placed much emphasis on the need to protect the confidentiality of journalistic sources and the importance of safeguarding freedom of the press.




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