HKSAR v. LAI CHEE YING

HCCP 738/2020

[2021] HKCFI 448

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 738 OF 2020

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REASONS FOR DECISION

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The Application

1.  This is an application to review[1] the Chief Magistrate’s refusal on 12 December 2020 of the Applicant’s bail in relation to a charge of “collusion with a foreign country or with external elements to endanger national security”,contrary to Article 29(4) of the National Security Law (“NSL”)[2].  I am not going to repeat the background of the case because one could readily get the particulars from Alex Lee J’s “Reasons for Ruling” in HCCP 727 and 738 of 2020[3] and the judgment of the Court of Final Appeal (“the CFA”) in HKSAR v Lai Chee Ying[4](“the CFA Judgment”).  

2.  I refused the Applicant’s bail at the end of the hearing on 18 February 2021, saying that I would give my brief reasons in due course.  This I now do. 

3.  As raised during the hearing, there are reporting restrictions on bail proceedings under section 9P of the Criminal Procedure Ordinance, Cap. 221(“CPO”).  Unless it appears to the court that the interests of public justice otherwise require, a report may only cover those matters set out in section 9P(2).  This is primarily for the protection of an applicant and the integrity of the trial which is going to take place.  For the same reason, it is usually the court’s practice to only provide brief reasons orally at the end of the bail hearing and that the materials relied on by the parties as well as the arguments put forth are seldom reproduced in writing. 

4.  However, given the history of these proceedings, I consider that, in the interests of public justice, I should set out in writing the following matters which are pertinent to my decision. It is my assessment that what is set out below would not run the risk of causing any prejudice to the Applicant, nor of affecting the integrity of the future trial. 

The Applicable Principles

5.  Article 42(2) of the NSL provides that:

“No bail shall be granted to a criminal suspect or defendant unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security.”

6.  At paragraph 70(b) of the CFA Judgment, it was reiterated that:

“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.”

7.  Further, it was pointed out that in applying NSL 42(2), the judge must first decide whether there are sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security (“the prohibited acts”). 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”.  It was also noted that “it may in particular cases be helpful to have regard to factors such as those set out in CPO 9G(2) in connection with the “sufficient grounds” question.”[5]

The Materials and Parties’ Respective Arguments

8.  For the purposes of this hearing, two further affirmations from Senior Inspector M F Lo which were referred to at the hearing as the Third Affirmation and the Fourth Affirmation were filed by the Respondent.  Put very briefly, the Third Affirmation mainly relates to certain financial transactions in which the Applicant is said to have been involved.  In respect of the Fourth Affirmation, matters which are said to relate to the Applicant’s latest arrest on 16 February 2021 in connection with another allegation under the NSL were put before the court. 

9.  As for the Applicant, there are fresh affidavits dealing with the offer of additional bail conditions, including the termination of internet service in the Applicant’s home premises and the regulation of visitors in terms of the number of people and the duration per visit. 

10.  In the course of this hearing, Mr Wong, SC, puts much emphasis on the following:

(1)     the present charge laid against the Applicant under NSL 29(4) and the alleged acts, that is, acts done in the public domain, are material considerations when making the assessment of whether there are sufficient grounds to believe that the Applicant will not continue to commit acts endangering national security (“the assessment”), not any fanciful or ungrounded claims or assertions made by the Respondent;

(2)     the concern that the Applicant may continue to use the social platform or the internet for the publication of such public statements could be adequately addressed by imposing stringent tailor-made bail conditions;

(3)     there are no credible or trustworthy materials before the court to support the Respondent’s case that there are insufficient grounds to believe that the Applicant will not continue to commit the prohibited acts;

(4)     the Applicant’s political ideology, connections, or financial means, even if any, does not, per se, constitute any offence and is therefore irrelevant to the assessment;

(5)     the illogicality of suggesting that the Applicant would continue to commit the prohibited acts when he knows full well the danger involved; and

(6)     the illogicality of suggesting that the Applicant would instruct others to act on his behalf if, as alleged by the Respondent, it is the Applicant himself, and not any other person, who has the necessary influence required to carry out the prohibited acts. 

11.  On the other hand, the Respondent relies, inter alia, on the resources and the connections the Applicant is said to have as well as the matters referred to in the Third Affirmation and the Fourth Affirmation to say that there are insufficient grounds for believing that the Applicant will not continue to commit the prohibited acts if bail is granted to him.  Further, the Respondent contends that the bail conditions offered would not be sufficient preventive measures given the nature of the prohibited acts and the different modes through which the prohibited acts could be committed. The Respondent also highlights the practical difficulties involved in enforcing the bail terms. 

12.  At one stage, Mr Wong takes issue with the Respondent’s use of the terms “elimination of risk” or “serious scrutiny” in their written submissions for Mr Wong reiterates that all that was said in the CFA Judgment is “a stringent threshold”.  On this matter, while it is unfortunate that such terms were employed by the Respondent, it is clear to me, and not disputed by the parties, that the anchor is NSL 42(2) and that the correct approach is the one laid down in the CFA Judgment[6].

The Assessment

13.  As pointed out in the CFA Judgment[7], all bail decisions “involve a risk assessment looking to the future”. 

14.  In this case, the major dividing line between the parties, as is evident from the submissions made, is what to make of the materials before me.  The next matter on which the parties differ is the effectiveness of the bail conditions offered.  Finally, the significance of the Applicant’s personal background, resources and connections is another matter which the parties could not agree. 

15.  In respect of the first matter, Mr Wong, in his submissions, suggests that little or no weight should be attached to the Third Affirmation and the Fourth Affirmation, adopting a “so what” argument as he puts it. 

16.  On the question of whether a case is made out for the grant of bail under NSL 42(2), the CFA Judgment refers to the consideration of “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”[8] whereas CPO 9N(e) speaks in terms of “any other materials or representations which it considers credible or trustworthy in the circumstances”. 

17.  No matter what the description is, I am of the view that the materials before me are of such a quality which warrant consideration and could not simply be ignored.  Clearly, whether the materials include hearsay evidence, or whether the co-conspirator rule applies, is not a matter which concerns me when making the current evaluation.  No one suggests otherwise at the hearing. 

18.  Therefore, while it is not possible, nor appropriate, for me to make any detailed assessment of the materials at this stage, I do not agree with Mr Wong that little or no weight should be attached to them. 

19.  Turning to the present charge[9] which is premised upon the Applicant’s publication of statements in the public domain, in my view, that is only part, not the whole nor the most significant part, of the relevant background in this case.  Thus, in making the assessment, consideration is not to be restricted to the likelihood and feasibility of a repetition of such identical or similar acts forming the basis of the charge.  Plainly, the CFA does not so limit the ambit and “acts endangering national security” in the context of NSL 42(2) is construed as referring to “acts of that nature capable of constituting an offence under the NSL or the laws of the HKSAR safeguarding national security”[10](emphasis added). 

20.  When this second matter is examined in its proper context, it is apparent that the Applicant’s undertaking (in not making any public statement or not attending any interview, etc.) on which Mr Wong puts emphasis is but just one of the considerations in the assessment because the question is not only about the alleged commission of the NSL 29(4) acts but any of the prohibited acts. 

21.  In respect of the third and final matter, while it is entirely correct for Mr Wong to say that one’s financial might, political ideology, and associations are not, per se, suggestive of the commission of any offence, it could not be gainsaid that such are relevant matters in the assessment.  For instance, it may be more difficult for one with limited means to organise the prohibited acts than one with the financial means. 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.  A loner may not be as efficient and effective in carrying out the prohibited acts when compared with one having connections and means. 

22.  Lest there be any misunderstanding, as already mentioned, I have not made, nor is it appropriate for me to make, any finding as to whether the Applicant has or has not actually conducted himself in the way alleged by the Respondent, but matters like an applicant’s background, associations, community ties and financial position are clearly relevant considerations in making the assessment[11].

23.  Lastly, I do not agree that there are the illogicalities suggested by Mr Wong.  Matters should not be considered in isolation.  As argued by the Respondent, there are different ways of committing the prohibited acts. If one was determined, the foreseeable danger of being discovered might not be a bar to action.  In the end, what the court has to do is to carry out “a predictive and evaluative exercise”[12] having taken into account all the relevant matters. 

Conclusion

24.  As announced at the end of the hearing, the Applicant’s application is refused.  Having considered all the relevant matters, including the materials before me, parties’ respective submissions, as well as the bail conditions offered, I am not satisfied that there are sufficient grounds for believing that the Applicant will not continue to commit acts endangering national security if bail is granted to him.