TAM TAK CHI v. HKSAR

HCMP 3118, 3119, 3120 & 3121/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 3118 OF 2014

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(HEARD TOGETHER)

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D E C I S I O N

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1. The nature and background of these applications are clear on the papers. The term “Extra Condition” will be adopted in this decision to denote the magistrate’s order that the applicants shall not enter a designated area in Mong Kok except when on transport or in transit. The magistrate had indicated in the bail form that such a condition was necessary to secure that the applicants would not “commit an offence while on bail”.

Statutory Framework

2. Section 9D(2)(b) of the CPO provides that conditions may be imposed which “appear to the court to be necessary to secure that the person admitted to bail will not commit an offence while on bail”. Section 9D(3)(b)(v) of the same ordinance provides that the court may make it a condition that the person admitted to bail “shall not enter any place or premises as the court may specify.”

3. Sections 9N(a), 9N(d) and 9N(e) provide that in any bail proceedings, the court may “make inquiries of and concerning the person being the subject of those proceedings”, “take into consideration any relevant matters agreed upon by the informant or prosecutor and the person being the subject of those proceedings or his counsel” and “receive and take into account any other material or representation which it considers credible or trustworthy in the circumstances.” 

4. In Part IA of the CPO, there is no provision on the taking of “evidence” except section 9N(c) whose relevance is confined to the “proof” of an exhausted list of circumstances concerning the person pending bail – whether he has previous convictions; whether he is charged with and awaiting trial on another offence; and whether he has a history of absconding.  “Evidence” may also be admitted to show the circumstances of a present offence particularly as they relate to the likelihood of that person to be convicted of that offence.

5. Insofar as it is immediately relevant to the core contention of these applications, that is the statutory framework.  A similar scheme was considered in the English case of R v Mansfield Justices ex parte Sharkey [1985] 1 QB 613.  Paragraph 8(1) of Schedule 1 to the Bail Act 1976 provides that where a defendant is granted bail, no conditions shall be imposed unless “it appears to the court that it is necessary to do so” for the purpose of preventing the occurrence of a number of events one of which is that the defendant would “commit an offence while on bail”.  (pages 623G–624F, & 625C–D of the judgment)  That is language familiar to Hong Kong lawyers. 

6. The Divisional Court comprising Lord Lane CJ and Stuart-Smith and Leggatt JJ observed that (pages 625D‑626C):

“…. the question the justices should ask themselves is a simple one: ‘Is this condition necessary for the prevention of the commission of an offence by the defendant when on bail?’ They are not obliged to have substantial grounds. It is enough if they perceive a real and not a fanciful risk of an offence being committed. This section 3(6) and paragraph 8 give the court a wide discretion to inquire whether the condition is necessary.

…….

It is conceded that there is no requirement for formal evidence to be given: see In re Moles [1981] Crim LR 170. It was for example sufficient for the facts to be related to the justices at secondhand by a police officer.

The nub of the problem is how far, if at all, the justices were entitled to have regard to what was described by counsel as the matrix of events which brought these defendants before the court. The answer in our judgment is that they were certainly entitled to use their knowledge of events at local collieries during the preceding weeks, because it was only on the basis of that knowledge, inter alia, that they could properly reach a conclusion as to the necessity of imposing a condition ….” (emphasis added)

Applying It

7. Clearly, the magistrate was entitled to have regard to the broader context in which the arrests of Messrs Tam, Cheung, Shum and Lo came about.  Case law confirms that he had a wide discretion under section 9N(e) to rely on material of whatever provenance for so long as it is “credible or trustworthy”.  Mr Pun for the applicants does not disagree on the scope of that discretion. 

8. The broader context just mentioned was made up of the following facts and features (most would say they are common knowledge):

(a) the blockades in Mong Kok were part of the Occupation Campaign (佔領運動).  The Occupation Campaign was and is persisting.

(b) removing the blockades in Mong Kok did not stop the protests in that area.  Mong Kok remains one of the action points of the Occupation Campaign.

(c) from the very night of the execution of the first injunction on 25 November, sporadic protests have spread to an area much larger than that of the original blockades in Mong Kok.

9. Such was the background confronting the magistrate.  There has been no change since the date the magistrate admitted the applicants to bail.  There is therefore no merit in the submissions that:

(a)   since both the injunctions in Mong Kok have been duly executed, the risk of their obstruction, hence the risk of the applicants committing a fresh offence, is non-existent.

(b)   the area designated in the Extra Condition far exceeds the area of the original blockades.  Its effect, at least in respect of the applicants, is to widen the scope of the two Mong Kok injunctions that were granted under civil proceedings.

In being narrowly focused on the injunctions, these submissions have become artificial and divorced from the underlying issues that gave rise to the injunctions.  Those issues pre‑existed and were irrespective of the question of injunction.

The Individuals

10. All four of the applicants are of good character.  They are well educated.  The written allegations that had been filed against them were however brief but categorical. 

11. For example, Messrs Tam, Cheung and Shum are said to have refused police request to leave and give way to the clearing up pursuant to the second injunction.  This took place after more than an hour of on-site announcements of the terms of the court order by bailiffs.  In fact, their refusal to leave (hence obstruction) took place after some “struggles” had broken out between plaintiffs and occupiers and police assistance had to be summoned.

12. Mr Lo is alleged to have kicked a police sergeant for no reason.  This took place whilst the sergeant was “conducting crowd management”.  The time (11.06 pm), date (25 November) and place (Changsha Street) of its happening put Mr Lo in the midst of the scenes that erupted on the night of the first injunction.

13. These are materials or representations that could be properly received under section 9N(e).  They show the first three applicants’ committed position to take their cause to the street and the fourth applicant’s likely disposition to violence.  There is no requirement at this stage for the prosecution case to be shown to be strong.  These materials alone are enough to give rise to the perception that there is a real risk of a fresh offence being committed.  Ready examples are those under the Public Order Ordinance.  The fact that Mr Shum is a leading and unrelenting figure in the Occupation Campaign buttresses the point.  I also take into account Mr Tam’s video clip which Mr Hui for the respondent has drawn to my attention.  Its content can fairly be understood as a call to others to congregate in the Mong Kok area.

Whether Condition Necessary

14. I repeat what the Divisional Court said in Mansfield Justices (ibid):

“the question the justices should ask themselves is a simple one: ‘Is this condition necessary for the prevention of the commission of an offence by the defendant when on bail?’ They are not obliged to have substantial grounds. It is enough if they perceive a real and not a fanciful risk of an offence being committed.”

15. Obviously, for the Lordships, “necessary” in the present context means there is a real risk.  The word does not carry any meaning that goes beyond that equation.  If there is a real risk of a fresh offence then there is need for a condition.  The remaining question is one of proportionality.

16. Irrespective of Mr Pun’s query on the size of the area designated in the Extra Condition, I am satisfied that it is justified in that both its length and width are approximate to the portions of Nathan Road and Argyle Street that form the subject matter of the injunctions.  The significance of this approximation is that incidents have spread from the enjoined road surfaces so that amongst the 212 arrests made since 25 November, as many as 190 were effected within the designated area (figures by Mr Hui).  The problem we now face is of a scale completely different from that in Gillespie-Gray v Police NZAR [2010] 206.

17. Given the wholly exceptional situation that is ongoing, I am satisfied that the Extra Condition should stand.  The volatility of the situation requires an order that is clear and not easily given to argument over the true meaning of its terms. Notwithstanding the fact that various rights of the applicants would be engaged, by which I mean those under the Bill of Rights and Basic Law, I am also satisfied that their interference is minimal.  Mr Pun has fairly conceded that there is in fact no real and/or pressing need for any of the applicants to enter the designated area except when on transport or in transit. 

Duty to Give Reasons

18. Criticisms have been made about the magistrate’s failure to give reasons in imposing the Extra Condition.  Since I do not exercise appellate jurisdiction, but am obliged to review the matter afresh in these applications (HKSAR v Siu Yat Leung [2002] 2 HKLRD 147), it is unnecessary for me to deal with this complaint.  Suffice it to say that in any matter, reasons, if not already clear from the records, must always be given, though not necessarily to the standard of perfection (R v Sheppard 162 CCC (3d) 298).

Disposal

19. The applications are dismissed.