XN000022-1987-03-11 — Page 11

WEDNESDAY, MARCH 11, 1987

NEED TO SAFEGUARD OVERALL PUBLIC INTEREST

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THE HON CHEN SHOU-LUM SAID TODAY (WEDNESDAY) THAT ANY HINDERANCE OR CONTROL ON FREEDOM OF EXPRESSION WAS UNDESIRABLE, BUT THERE HAD TO BE A BASELINE TO UNDERSCORE THE PROFESSIONAL AND SOCIAL RESPONSIBILITY OF ANY PERSON BEFORE THEY SPREAD A PIECE OF NEWS.

MR CHEN WAS SPEAKING IN SUPPORT OF THE NEW SECTION 27 PROPOSED IN THE PUBLIC ORDER (AMENDMENT) BILL 1986 DURING THE DEBATE ON THE BILL IN THE LEGISLATIVE COUNCIL.

HE SAID HE HAD NO HESITATION TO ACKNOWLEDGE THE PUBLIC'S RIGHT TO KNOW AND THE CRUCIAL ROLE PLAYED BY THE MEDIA IN REPORTING THE TRUTH.

+ BUT FOR AN IMPORTANT ISSUE SUCH AS PUBLICATION OF FALSE NEWS WHICH MAY CAUSE PUBLIC DISTURBANCE, A BALANCE HAS TO BE STRUCK IN ORDER TO SAFEGUARD THE OVERALL PUBLIC INTEREST.

+IN MY VIEW, THE BALANCE SHOULD BE TILTED IN FAVOUR OF THE MAINTENANCE OF PUBLIC CONFIDENCE, HE SAID.

MR CHEN SAID HE HAD FULL FAITH IN THE IMPARTIALITY OF THE HONG KONG LEGAL SYSTEM AND THE COMMON LAW PRINCIPLE OF +PRESUMED INNOCENCE UNTIL PROVEN GUILTY+. HOWEVER, HE BELIEVED THAT THIS PRINCIPLE SHOULD BE FLEXIBLY AND SENSIBLY APPLIED.

+THE RATIONALE FOR PLACING THE BURDEN OF PROOF ON THE DEFENCE IS THAT IN MANY CASES WHERE THE INGREDIENTS OF THE OFFENCE ARE LARGELY WITHIN THE PERSONAL KNOWLEDGE OF THE ACCUSED, IT WILL BE ALMOST IMPOSSIBLE FOR THE PROSECUTION TO ESTABLISH EVIDENCE TO PROVE THE GUILT, HE SAID.

TO FOLLOW THE

+

PRINCIPLE OF +PRESUMED INNOCENCE+ WOULD IN SUCH CASES, NULLIFY THE DETERRENT EFFECT OF THE LAW, HE ADDED.

IN THE CASE OF THE NEW SECTION 27, MR CHEN SAID HE FIRMLY BELIEVED THAT THERE WERE ENOUGH JUSTIFICATION FOR A DEPARTURE FROM THE PRINCIPLE OF +PRESUMED INNOCENCE+.

IN PRACTICE, HE EXPLAINED, BEFORE A PERSON COULD BE CHARGED, THE PROSECUTION WOULD HAVE TO PROVE THREE POINTS OF FACTS, NAMELY THAT THE NEWS WAS FALSE, THAT IT WAS LIKELY TO CAUSE DISTURBANCES TO PUBLIC ORDER, AND THAT IT WAS ACTUALLY PUBLISHED.

+GIVEN THESE INGREDIENTS, I THINK IT IS FAIR TO PLACE ON THE DEFENDANT THE BURDEN OF PROOF THAT HE HAS REASONABLE GROUND FOR BELIEVING THE NEWS WAS TRUE, HE SAID.

/+HAVING SAID