SECRETARY FOR JUSTICE v. LEE YUE SHUN

HCCP 120/2021

[2021] HKCFI 919

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO. 120 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 being a member of the Civic Party, had participated in the Primaries, and according to the announcement of the Civic Party, the Party as a whole had signed the Online Declaration.  On the 19 June 2020, the Respondent submitted his Primaries Nomination Form and ran for the Primaries.  However, he failed to secure sufficient votes. 

7.  However, on the 30 July 2020 when 3 candidates were officially disqualified, the Respondent submitted his Legislative Council (“LegCo”) nomination form for the Hong Kong Island constituency as part of the agreement, as Ms Yang submitted, this was part of their common criminal purpose in the conspiracy.  Therefore, the Applicant believed that the Respondent would continue to commit offences against the NSL if granted bail. Furthermore, should he succeed in crossing the first threshold, under the second threshold, the Applicant maintained that there is a risk of his absconding and re-offending.        

8.  Mr Choy SC on behalf of the Respondent submitted that, the Respondent was a District Councillor since only 2019, and therefore he has no local or international profile which is demonstrated by the fact that he only got about 2% of the votes in the Primaries. In fact when the Respondent lost in the Primaries, he declared that he would continue to work for the District Council.[6]

9.  Mr Choy SC therefore submitted that the election pamphlet accompanying his Primaries nomination was in fact just a Civic Party pledge, and not the Respondent’s individual pledge. And the appeal to the international communities was to keep track, and not to ask for assistance.  So Mr Choy SC submitted that it really indicated that the Respondent belonged to the more moderate group of young persons propelled by events to try to get into LegCo.        

10.  I have considered all the materials placed before me, including counsel’s oral and written arguments and also the affirmations in support.  I am satisfied that the Respondent will not continue to offend against the NSL if granted bail.  I can see from his short time as a District Councillor that he had helped the community and in doing so had also co-operated with several government departments.

11.  I also accept ever since his loss in the Primaries, apart from filling in the nomination form for the LegCo election, he has not said or done anything in relation to the original agreement. Therefore, I am of the view that he had successfully crossed the first threshold. 

12.  And considering his rights to bail under the Criminal Procedure Ordinance, Cap 221, I am satisfied that the original terms imposed by the learned Chief Magistrate for bail would be sufficient.  Therefore, I endorse the bail terms as imposed by the learned Chief Magistrate.    

13.  So the application is refused and bail is granted to the Respondent on the same terms as imposed by the learned Chief Magistrate.