SECRETARY FOR JUSTICE v. CHUI CHI KIN

HCCP 126/2021

[2021] HKCFI 969

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO 126 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 “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]

The Arguments

6.  Mr Lee, appearing on behalf of the Applicant, submitted that the Applicant had a strong background of community service and it is not in his character to continue to commit acts against national security.  Mr Lee also noted that even after the Applicant’s original arrest, he continued to discharge his duty to the community.  Mr Lee said that after the Applicant lost in the Primaries he ceased to be politically active and the Applicant would undertake if granted bail, not to post anything on the internet of a political nature.      

7.  Mr Lo argued that in spite of his loss in the Primaries, the Applicant submitted the Legislative Council nomination form[6] on 31 July 2020 after 3 candidates were officially disqualified the day before.  Therefore, Mr Lo asserted that this was part of the election scheme to replace the candidates who had been disqualified in order to pursue the common purpose of the conspiracy. 

8.  Mr Lo also submitted that from the Applicant’s computer were found Enclosures 9 and 10 and the relevant paragraphs can be found in paragraphs 32-34 of Mr Lo’s written submissions which demonstrated a determination to carry out the election scheme. 

9.  Mr Lo also played Video C to the Court, which had been downloaded from the Applicant’s personal YouTube channel and this video had been uploaded to his channel on 3 July 2020 after the enactment of the NSL in Hong Kong.  This video was filled with misleading and false news, for example, claiming that a large contingent of military vehicles of the People’s Liberation Army had been sent onto the streets of Hong Kong from the Mainland and the vehicles were equipped with signal jammers in order to block or obstruct the freedom of the press and communication in Hong Kong.  And that this was the forerunner of an upcoming large scale military operation on a par with the June 4^th movement.  Mr Lo, therefore, submitted that from Video C, one can see that the Applicant was making unfounded assertions using emotive and antagonizing language, even after the enactment of the NSL, obviously with a view to causing fear and inciting hatred.  So there is a real and substantial risk that the Applicant if granted bail will continue to commit acts endangering national security. 

10.  Mr Lee in his reply pointed out that there were altogether 9 episodes in Video C and most episodes concern social problems and that the view count for the episode was very low, thus it was not viewed by many people.

11.  I have to make an evaluative and predictive assessment of all the materials before me, what is ofmost concern is the rhetoric which is contained in the episode pointed out by Mr Lo in Video C, and not wishing to taint the integrity of the forthcoming trial, I can only say that on making my predictive assessment and evaluation, there are insufficient grounds for believing that the Applicant will not continue to commit acts endangering national security if bail is granted.  As Anthea Pang J in HKSAR v Lai Chee Ying[7] had said at paragraph 21:

“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. …”

I can do no better than to adopt those words of Anthea Pang J.

12.  So the Applicant had failed to pass the first threshold as laid down by the Court of Final Appeal and so his bail application is refused.