HKSAR v. CHAN CHI CHUEN RAYMOND

HCCP 473/2021

[2021] HKCFI 2997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO 473 OF 2021

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REASONS FOR DECISION

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1.  This is an application for bail in relation to the Chief Magistrate’s refusal of bail in relation to a charge of “Conspiracy to commit subversion” contrary to Article 22(3) of the National Security Law[1] (“NSL”) and sections 159A and 159C of the Crimes Ordinance, Cap 200.

2.  In brief, the assertion of the Respondent is that this was a massive and well-organised scheme by the Applicant and 46 others to achieve a common criminal purpose to undermine the “proper functioning of the Legislative Council so as to paralyse the operations of the HKSAR government, eventually compelling the Chief Executive of HKSAR to resign”.  The Respondent further submitted that despite the public statement of the Government that the “organization, planning or participating in the ‘35+’ Primaries”[2] and the statement on the 14 July 2020 by the Liaison Office of the Central People’s Government in HKSAR that the Primaries are illegal as having fallen foul of the NSL, the Applicant and others still carried on with their scheme. 

3.  It is submitted by the Respondent that had the Election not been postponed due to public health concerns, the conspiracy would have been carried out to fruition.  If granted bail it is of concern that sufficient grounds exist for not believing that the Applicant will not continue to commit acts endangering national security.[3]　

4.  The applicable principle as reiterated by the CFA judgment in HKSAR v Lai Chee Ying[4] at paragraph 70(b) was:

“NSL 42(2) creates a specific exception to the HKSAR rules and principles governing the grant and refusal of bail, and imports a stringent threshold requirement for bail applications.”

5.  The CFA judgment also elucidated that in applying NSL 42(2), the judge must first decide if there are sufficient grounds for believing that the suspect or defendant will not continue to commit acts endangering national security (“the prohibited acts”) and in doing so the “judge should consider everything that appears to the court to be relevant to making that decision including the possible imposition of appropriate bail conditions and materials which would not be admissible as evidence at the trial”.[5]

Applicant’s Submission

6.  The Applicant was arrested together with 46 others and charged with one charge of “Conspiracy to commit subversion”, contrary to Article 22(3) of the NSL and sections 159A and 159C of the Crimes Ordinance, Cap 200.  He was refused bail by the learned Chief Magistrate on 1 March 2021 and is seeking for review against the decision.

7.  Mr Derek Chan SC submitted on the Applicant’s behalf that the Applicant should be granted bail as sufficient grounds exist for believing that the Applicant will not continue to commit acts endangering national security if bail is granted. 

8.  Mr Chan SC prayed in aid the fact of the Applicant’s record of service in the Legislative Council (“LegCo”), and that after his arrest he had resigned from the political party he had belonged to.  It is also unlikely that the Applicant would abscond since he is permanently rooted in Hong Kong.  And with the appropriate bail conditions that will also ensure that he will not continue to commit acts endangering national security nor will he abscond if bail is granted.

9.  In support of his argument,  Mr Chan SC not only pointed to the almost 100% attendance rate of the Applicant as a LegCo member, and that he had also lent his support to motions or bills proposed by the Government by voting “yes”[6].

10.  Also worth noting was the fact that the former President of LegCo, Mr Andrew Leung Kwan-yuen, in July 2018, had publicly described the Applicant, in a press interview, as a hard-working legislator, and had always asked constructive questions during the LegCo meetings.[7]  .

11.  Also significantly, Mr Chan SC referred to a letter from …. …. …. …. … … … …….. ……… .. … ….. ……… ……. ….. …. … …. .. ….. .. …. ………. … ……. ………. .. …. … … ….. … …..           …… ……… …… … … … …… …………… …… ………… ……… ….  … …   .       

12.  .. …. ………. .. ….. .. … ……. .. .. …. …. ……… …….. ……… ……. …… ………. …….. …. …… ….. ……. .. ……….. …… ……… . …. …. …. ……. .. ……….. ……… ………. … …….. … … …….. .. ……… .. …….. ………… …… … .. … ……. .. … …. …. …. …. ……… … …….. … ….. ………… ………. .. …… .. … ……. …….. ….. …. .. ……. ……. …….. .. …… ………. …….. … …… … .. ……. ……. ……… .. …. ….. … ………. [8]

13.  Also, as a sign that the Applicant was not viewed as totally anti-government, he was not one of those disqualified by the Returning Officer and in fact was invited to remain in the provisional LegCo in August 2020 when the LegCo election was cancelled. 

14.  Therefore, Mr Chan SC submitted that the above are important factors which would assist the Court when conducting its “predictive and evaluative exercise” when considering bail.

15.  Also in the Applicant’s long record of service to the community, not only did he promote LGBT welfare, he also participated in other social issues, and one recent example could be seen in his promotion of the influenza vaccination programme as far back as 2017.[9]

16.  Mr Chan SC therefore submitted that the above mentioned factors would assist in the Court assessing whether the Applicant poses a risk to national security.

17.  Mr Chan SC does not avoid the fact that the Applicant may have used strong words politically towards the end of his political career.  However, this should be considered against the background of his action as a relatively “moderate and a constructive legislator” who has worked with the Government on many occasions.  

18.  Subsequent to his arrest, the Applicant has resigned from all his political posts and also he deactivated his social media accounts.

19.  On a personal note, Mr Chan SC points to the fact that the Applicant has his roots in Hong Kong, and although his father had passed away, his mother is still in Hong Kong and living in an elderly home.  The Applicant has no foreign passport or right of abode in any foreign country. 

Respondent’s Submission

20.  Mr Lo for the Respondent, submitted that from the videos[10] taken on 26 June 2020 and 28 June 2020, the Applicant was determined to veto the budget should he be elected into LegCo.  He called for resistance, both on the LegCo front and on the international front, and in Video C, he referred to being at the “frontline” of the social movement and that he would help the fugitives:

“…我都有去到最前線，都有食催淚彈。當然我--我唔係話，我即係做得要可--當然可以做得更加多喇，但係我覺得我喺譬如誒支援喇，被捕支援喇，或者受傷支援喇，或者即使有啲我唔能夠講得好多嘅誒流亡海外嘅支援喇，我都會做。…”

21.  Mr Lo also submitted that the Applicant had visited Taiwan in 2020 with others in his political party and the group had called for political asylum for Hong Kong people.  During the visit, a flag displaying the words “光復香港 時代革命” was shown.

22.  Therefore, Mr Lo submitted that the Court cannot believe that the Applicant if granted bail, would not continue to commit acts endangering national security. 

Discussion

23.  Firstly, I must state that the court in considering bail, has to look at the individual circumstances of each particular applicant.  While it may be helpful for counsel to refer to other applicants involved in the same case as to their success in being given bail, it is ultimately for the Court to make the evaluation and assessment based on the individual applicant’s background and conduct in the past, whether he, if granted bail, would not continue to commit acts endangering national security.

24.  Secondly, it is worth noting that while the argument for lifting of reporting restriction may be superficially attractive.  However, the Court has a duty to ensure that what is said at the preliminary stage in the bail application does not hamper the ultimate handling of the case by counsel for the Applicant in the trial.  It is often the case that between the bail application and the time for trial, the applicant’s case may have gone through many counsel’s hands, and the counsel who is chosen to represent the applicant at trial may have his own strategy in defending the applicant.  He may at that time be hampered by what had been said in the bail application by a different counsel representing the applicant.  That is exactly what I meant by the Court having to protect the integrity of the future proceedings.

25.  I have tried in my brief reasons for each Applicant that had been handed down to give an overview of what had been said during the application, leaving out matters which may be controversial, so that the members of the public, if they should wish to, can read the reasons and get an informed idea as to what was basically said during the bail application.

26.  In my assessment and evaluation, I do take into account as the Court of Final Appeal had said in HKSAR v Lai Chee Ying, everything including matters of public record and assertions, which may not be of public record, including the applicant’s past performance, and conduct, and the bail conditions offered, to make my “predictive and evaluative exercise” as Anthea Pang J (as she then was) said in the case of HKSAR v Lai Chee Ying[11].

27.  Having considered the Applicant’s past performance, as a Legislator in the LegCo, his almost 100% participation in matters of the Council, being named by the former President of the LegCo, Mr Leung, as being the most diligent Legislator, and his past cooperation with the Government, as per the affidavit of           [12] mentioned above, and taking into account, also the electioneering rhetoric that Mr Lo had referred to towards to end of the Applicant’s political career, and weighing everything that had been said in the scale, I believe that with the conditions imposed for bail that the Applicant will not continue to commit acts endangering national security if bail is granted.  So the Applicant has successfully crossed the first threshold. 

28.  In considering the second threshold, Mr Lo submitted that there is a risk of reoffending and a risk of absconding, and therefore failure to surrender to custody at the appointed time. 

29.  Mr Lo submitted that the Applicant had made connection in the past with the Taiwanese political party, and therefore his risk of absconding with assistance from this group would be high.

30.  On the other hand, Mr Chan SC pointed out that the Applicant has his home in Hong Kong, his aging mother is in an elderly home and his fiancé is also in Hong Kong, and together with the stringent bail conditions imposed, there would be no likelihood of the Applicant reoffending or absconding.  Also, the Applicant has a clear record in Hong Kong.

31.  I am persuaded that with the stringent bail conditions imposed, that the Applicant will surrender to custody at the appointed time. 

32.  I therefore granted bail in the terms which I have already announced.