SECRETARY FOR JUSTICE v. CHEUNG HO SUM

HCCP 116/2021

[2021] HKCFI 875

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO. 116 OF 2021

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REASONS FOR DECISION

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1.  This is an application to review the Chief Magistrate’s granting of bail on 4 March 2021 in relation to a charge “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 Applicant is that this was a massive and well-organised scheme by the Respondent and 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 Applicant 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 Respondent and others still carried on with their scheme. 

3.  It is submitted by the Applicant that had the Election not been postponed due to public health concerns, the conspiracy would have been carried out to fruition.  That if granted bail it is of concern that sufficient grounds exist for not believing that the Respondent 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]

Assessment

6.  Ms Yang submitted that the Respondent not only participated in the Primaries, he also played in an important role as he was one of three persons who drafted the Online Declaration, briefly called “抗爭派立場聲明書”.  This Online Declaration was also published on the Facebook page of the Respondent.  Furthermore, on 19 June 2020, he urged the candidates of the Primaries to sign the Online Declaration and criticised the members of the Neigbourhood and Worker’s Service Centre (街工) for refusing to sign the Online Declaration.[6]

7.  Apart from the election pamphlets attached to the Respondent’s Nomination Form, the Respondent also, on the 24 June 2020, published a post on his Facebook page entitled “攬炒=畫面唔靚?”[7]. Where among other inflammatory words, the Respondent had written:

“現時香港就係中共手上嘅人質，要求攬炒，就係話畀全世界聽，制裁中共呢個綁匪唔好留手，唔好因為香港呢個人質而有任何顧慮。因為唯有解決個綁匪，人質先可能自由。…

只要本土派喺民間選舉得票率夠高，就可以堂堂正正地代表香港走上國際舞台，作為民意代表向各國傳遞香港人嘅抗爭意志。希望每一位香港人都唔好放棄真正自由選擇嘅機會。”      

8.  The Respondent further repeated his “laam chau” idea in the election forum on 28 June 2020[8]. The Respondent subsequently won the Primaries and submitted the Legislative Council (“LegCo”) nomination form to participate in the LegCo election. Also seized from the Respondent’s premises was an election pamphlet[9], where among other inflammatory words, the Respondent also said:

“… 淪陷的香港、香港政治，需要的是反抗，是不妥協的藝術。…

… 我將不惜一切代價，帶領香港重光。”

9.  Ms Yang therefore submitted that this is a person who is “determined and resolute” as described in Anthea Pang J’s judgment in HKSAR v Lai Chee Ying[10], where at paragraph 21 she said the following:

“21. …Likewise, one who is determined and resolute may be more readily disposed to committing the prohibited acts than one who is merely drifting along and lacks such enthusiasm. …”

10.  Ms Yang therefore submitted that the Respondent was certainly not only determined and resolute, he was also vocal and outspoken throughout. 

11.  Mr Lok on behalf of the Respondent submitted that the Respondent is now a changed man, he is now married, his wife is pregnant, and he has applied for a PhD programme in the Chinese University of Hong Kong, and he will resign as a District Councillor.  Mr Lok also produced a letter from a Professor in the Hong Kong Baptist University, stating that the Respondent is an excellent student, and therefore the chances of his re-offending or continuing to offend against the NSL is minimal, if not zero.

12.  Mr Lok also said that the learned Chief Magistrate being an experienced Magistrate, must have considered everything before making the decision, and this Court should be slow in interfering with his decision. Mr Lok also submitted that the Respondent had done much to better the welfare of the community he served as a District Councillor, and so there was no reason for him not to be able to pass the first threshold.  And in relation to the second threshold, under the Criminal Procedure Ordinance, Cap 221, he is most unlikely to re-offend or to abscond, as he has not done so ever since he was on police bail, he has kept to the terms of the bail and has not done anything to indicate that he would do anything to re-offend.  Therefore, he is entitled to bail.

13.  I have considered all the materials before me and most importantly is the fact that the Respondent was, as Ms Yang pointed out, determined and resolute in his actions in advancing the agenda for mutual destruction.  Therefore, in making my predictive and evaluative exercise, I cannot say that there are “sufficient grounds for believing that the Respondent will not continue to commit acts endangering national security” if bail is granted. 

14.  So the application is allowed and the bail of the Respondent is revoked.