HKSAR v. MA CHUN MAN

HCCP 711/2020

[2020] HKCFI 3132

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 711 OF 2020

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REASONS FOR RULING

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Introduction

1.  On 15 December 2020, I dismissed the Applicant’s application for bail pending trial and said that reasons for the decision would be handed down in due course.  This, I now do.

Factual background

2.  The Applicant is charged with one charge of incitement to secession, contrary to Articles 20 & 21 of the Law of the People’s Republic of China (“PRC”) on Safeguarding National Security in the Hong Kong Special Administrative Region (“HKSAR”) in Schedule to the Promulgation of the National Law 2020 (“NSL”).  It is alleged that the Applicant, between 15 August 2020 and 22 November 2020, in Hong Kong, incited other persons to organise, plan, commit or participate in acts, whether or not by force or threat of force, with a view to committing secession or undermining national unification, namely separating the HKSAR from the PRC or altering by unlawful means the legal status of the HKSAR.

3.  The charge is based on a series of 19 incidents which took place between 15 August 2020 and 22 November 2020.  It is alleged that in that 3-months’ time, the Applicant had persistently chanted slogans and displayed placards advocating for independence of Hong Kong.  Notably, some of the slogans he chanted included: “民族自強 香港獨立 香港人建國” (Ethnic Enhancement, Hong Kong Independence, Hong Kong People to Establish Our State); “光復香港 時代革命” (Liberate Hong Kong, Revolution of Our Times); “香港獨立 唯一出路” (Hong Kong Independence, The Only Way Out); “全民勇武” (All People be Valiant); and “武裝起義” (Armed Revolt).  It is said that on many occasions, some people in the vicinity responded to the Applicant’s slogans by chanting along.

4.  The prosecution also says that over the same period, the Applicant had been interviewed on several occasions by some online media in which, among other things:

(a)     he reiterated that his demand was the independence of Hong Kong and that discussing and advocating that was a civil right;

(b)     he urged the public to come out and gather together to chant slogans on the 8th, 15th, 21st, 22nd and 31st of every month to promote the will of independence and to spread that idea in every primary school, secondary school and university in order to make more people believe that independence was the only way out and was feasible and to mull over the next “Revolution of Our Times”;

(c)     he explained what he meant by “Liberate Hong Kong, Revolution of Our Times” in that the former means “recapturing the sovereignty of Hong Kong from the PRC and establishing a Republic of Hong Kong” and the latter means “a revolution that overthrows” the present regime and “makes independence come true”; and

(d)     he advocated that the “revolution” has started and asked the public to prepare for the fight.  He said that their present strength was not sufficient and there was a need to “sow more seeds”.  That was the reason why he insisted on doing what he did.

The prosecution says that all those interviews were captured by videos, posted on the Internet and were widely circulated. 

5.  It should also be noted that out of the 19 incidents, the Applicant was arrested 6 times for offences of “sedition” or “incitement to secession” before he was eventually charged.  He had said that the NSL “is but an ornament” and he asked people to “be bold to trample the legal bottom line and come out to stage protest”.

The proceedings below

6.  The Applicant first appeared in court on 24 November 2020 before the Chief Magistrate sitting at West Kowloon Magistracy.  No plea was taken and the case was adjourned to 10 February 2021 for mention.  On the same occasion, the learned magistrate refused the Applicant bail as he considered that there were substantial grounds for believing that the Applicant would commit an offence whilst on bail: see s9G(1)(b), Criminal Procedure Ordinance (“CPO”), Cap 221.  As a result of that refusal, the Applicant seeks a bail review before this court: see s9J, CPO^[1].

The present application

7.  Mr Harris, SC (and with him, Mr Lam), counsel for the Applicant, makes the following submissions in support of the bail review:

(i)     There is now a much reduced risk of “re-offending”.  The court is told that the Applicant has changed his previous position in the lower court where he refused to give an undertaking not to repeat pro-independence slogans or expressions of view.  Now, the Applicant is willing to give such an undertaking which is to be pledged with stringent terms including substantial amounts of cash and cash surety, reporting condition, curfew and travel restriction, if bail is granted.

(ii)     There is not a likelihood of conviction.  It is submitted that Articles 20 & 21, NSL, correctly interpreted in a way consistently with the Basic Law (“BL”), does not criminalize “peaceful advocacy of secessionist ideas” of which the Applicant was accused. Reference is made to Handywside v the United Kingdom^[2] (cited with approval in Leung Kwok Hung & Others v HKSAR^[3]) and Boucher v R^[4].

(iii)     There is not a likelihood of a lengthy sentence. It is submitted that if the facts of this case amount to an offence at all, it is of a relative minor nature which would call only for a short-term imprisonment or a community service order.  Reference is made to the penalty provisions in NSL 21 & 64.  Moreover, as the prosecution has indicated the District Court as the likely venue, it is estimated that the trial would be unlikely to commence until the second half of 2021.  Hence, injustice may be resulted if the Applicant’s detention period exceeds his eventual sentence. 

8.  Mr Chau (and with him, Ms Chan) for respondent opposes the application and submits that there are substantial grounds for believing that the Applicant would commit an offence whilst on bail and fail to surrender to custody: s9G, CPO. 

Legal Principles

9.  The legal principles applicable to a bail review under s9J, CPO are well-known and have been summarized in HKSAR v Vu Thang Duong^[5]and HKSAR v Wong Chi-fung^[6].  As regards bail applications for accused charged for offences under the NSL, the relevant legal principles have been considered in Tong Ying Kit v HKSAR^[7] and HKSAR v Tong Ying Kit^[8].  I am not going to repeat those.

Consideration

As to (2): The interpretation of NSL

10.  Purely for the sake of convenience, I would like to first consider Mr Harris’s submission on (2) above which is about the interpretation of NSL 20 & 21 in the light of the BL.  Since this point has been raised by counsel, it is only right for this court to explain why the Applicant’s submissions are not accepted which results in the refusal of his application.  However, this court will be guarded not to express any definite view on the elements of the offences as created by the two articles.  Firstly, what this court is asked to decide is only whether bail should be granted to the Applicant in the face of the attendant risks.  Matters pertaining to the trial should be left to the trial court.  Secondly, parties have submitted briefly on this topic and this court does not have the benefit of any thorough research from counsel.  Therefore, what this court is going to say below is bound to be preliminary in nature and should not be taken to have any influence on the trial court whatsoever. 

11.  The likelihood of conviction is relevant as regards whether the Applicant would be a flight risk.  Furthermore, if what the Applicant is alleged to have done would not in law amount to an offence at all, then there would not be any evidential basis for the prosecution to say that he would commit an offence whilst on bail. 

12.  This court accepts that in the present case concerns the Applicant’s right and freedom guaranteed under BL 27 is engaged:

“Article 27

Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.”

13.  Moreover, Article 16 of the Hong Kong Bill of Rights (“BOR”)^[9], which provides for the freedom of opinion and expression, is also pertinent.  As pointed out by the Court of Final Appeal in Comilang Milagros Tecson v Director of Immigration^[10], our courts have consistently held that by enacting Hong Kong Bill of Rights Ordinance (“HKBORO”), Cap 383, the fundamental rights guaranteed by the BOR set out in Part II of the Ordinance, have not merely been incorporated domestically but, by virtue of BL 39, incorporated as part of the BL and given constitutional effect.  This is the consequence of BL 39(2) which protects the rights and freedoms of Hong Kong residents against restrictions which “contravene the provisions of the preceding paragraph of this Article”, such provisions being for present purposes the ICCPR as applied to Hong Kong and incorporated via HKBORO.  See also HKSAR v Ng Kung Siu^[11] where it is held that BOR 16, dealing with freedom of expression, is incorporated into the BL by virtue of BL 39. 

14.  As regards the construction of the BL, it is now firmly established that the court adopts, under the common law, a purposive approach.  In particular, the courts should give a generous interpretation to the rights guaranteed by Chapter III of the BL whilst restrictions to them should be narrowly interpreted: Gurung Kesh Bahadur v Director of Immigration^[12].

15.  As regards the NSL, the divisional court in Tong Ying Kit v HKSAR, ante, has recently held that this national law which is made applicable to Hong Kong^[13] ought to be construed and applied, so far as reasonably possible, in a manner which is consistent with the protection of fundamental rights entrenched by the BL and BOR.  Besides, the divisional court holds that as far as Hong Kong courts are concerned, we should continue to adopt the common law approach in the construction of the National Security Law.  Whilst I appreciate that Tong Ying Kit v HKSAR is about NSL 42, I can see no reason why the same rationale should not also be employed in the interpreting of NSL 20 & 21 or indeed the rest of the articles in the NSL.  In particular, it is noted that in NSL 4^[14] there is not only an explicit reference to the rights and freedoms constitutionally guaranteed by the BL, but also a stated intention of the Standing Committee of the National People’s Congress (“NPCSC”) that those rights and freedoms shall be available to people charged with offences regarding national security.  As NSL 4 is one of the articles in Chapter I which contains the General Principles of the NSL, it goes without saying that the General Principles (including NSL 4) shall inform the interpretation of the NSL as a coherent whole.

16.  However, the following judgment by Poon JA (as he then was) in the Court of Appeal in Comilang Milagros Tecson v Director of Immigration^[15], which precisely summarises the governing principles of the purposive approach, bears repetition:

“66. It is now firmly established that in construing the BL, the court adopts, under the common law, a purposive approach. In particular, for the provisions in Chapter III concerning fundamental rights and freedoms, the court gives them a generous interpretation. However, it does not mean that the court will construe the BL provisions in vacuum: Santosh Thewe & Another v Director of Immigration [2000] 1 HKLRD 717, per Stock J (as Stock NPJ then was) at p 721D-G, quoting Secretary for Justice v Oriental Press Group Ltd & Others [1998] 2 HKLRD 123, per Chan CJHC and Keith J (as their Lordships were) at p 164J-165B. In adopting the purposive approach, the court must have regard to the language of the text in the light of the relevant context and purpose with, where necessary, the assistance of internal and external aids to interpretation. As Li CJ explained in his seminal judgment on the common law approach to interpretation of the BL in Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211 at pp 223-225 :

(1) Subject to any binding interpretation by the National People’s Congress Standing Committee, in interpreting a particular provision of the BL, the court construes the language of the text to ascertain the legislative intent as expressed in the language objectively.

(2) The court does not construe the language in isolation. It considers the language used in the text in the light of its context and purpose. Put another way, the court ascertains the meaning borne by the language when considered in light of its context and purpose.

(3) Whilst in interpreting the provisions in question, the court must avoid a literal, technical, narrow or rigid approach, it cannot give the language a meaning which the language cannot bear.

(4) There are two kinds of aids to interpretation: internal and external aids. As its name suggest, the internal aids are derived from what it is found within the BL, including provisions in the BL other than the one in question and the Preamble. External aids are external materials which throw light on the context or purpose of the BL or its particular provisions. Such external materials, generally speaking, include the Joint Declaration, the Explanations on the BL (draft) given at the National People’s Congress on 28 March 1990 shortly before its adoption on 4 April 1990, the state of domestic legislation at that time and the time of the Joint Declaration, materials brought into existence prior to or contemporaneous with the enactment of the BL, although it only came into effect on 1 July 1997. (The list of external materials is of course not exhaustive.)

67. It is further well settled that the context and purpose are to be identified and considered in the first instance and are not merely at some later stage when ambiguity may be thought to arise after a “natural and ordinary meaning” of the text has been identified: Vallejos v Commissioner of Registration (2013) 16 HKCFAR 45, per Ma CJ at [77], quoting Sir Anthony Mason NPJ in HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574.”

(Emphasis supplied)

17.  In my view, the external aids to the interpretation of the NSL would include, but not limited to, the “Decision of the National People’s Congress on Establishing and Improving the Legal System and Enforcement Mechanisms for the Hong Kong Special Administrative Region to Safeguard National Security”, where the background leading to the enactment and implement of the NSL is given as follows:

“The [Third Session of the Thirteenth NPC] considered that the risks for national security in the Hong Kong Special Administrative Region (HKSAR) have become notable in recent years. Various unlawful activities such as advocacy for “Hong Kong independence” as well as acts of secession, violence and terrorism, etc have seriously jeopardised national sovereignty, unity and territorial integrity. Certain foreign or external forces have flagrantly interfered in Hong Kong’s affairs and utilised Hong Kong to carry out activities endangering national security. To safeguard national sovereignty, security and development interests, uphold and improve the “one country, two systems” regime, safeguard the long-term prosperity and stability of Hong Kong, and safeguard the legitimate rights and interests of Hong Kong residents, …”

18.  Bearing all of the aforesaid in mind, I now turn to NSL 20 & 21.  The first thing to note is that these two articles are contained in Part 1, Chapter III of the NSL titled “Offences and Penalties”.  Chapter III is divided into six parts:

Part 1[16]  -    Secession

Part 2[17] -    Subversion

Part 3[18] -    Terrorist Activities

Part 4[19] -    Collusion with a Foreign Country or with External Elements to Endanger National Security

Part 5[20] -    Other Provisions on Penalty

Part 6[21] -    Scope of Application

For the present purpose, it is also pertinent to note that “secession” and “subversion” are newly created offences in Hong Kong and none of them are Common Law offences, although the latter is a statutory offence in some common law jurisdictions^[22].

19.  NSL 20 & 21 read as follows^[23]:

“Article 20^[24] A person who organises, plans, commits or participates in any of the following acts, whether or not by force or threat of force, with a view to committing secession or undermining national unification shall be guilty of an offence:

(1) separating the Hong Kong Special Administrative Region or any other part of the People’s Republic of China from the People’s Republic of China;

(2) altering by unlawful means the legal status of the Hog Kong Special Administrative Region or of any other part of the People’s Republic of China; or

(3) surrendering the Hong Kong Special Administrative Region or any other part of the People’s Republic of China to a foreign country.

…

(Emphasis supplied)

Article 21^[25]      A person who incites, assists in, abets or provides pecuniary or other financial assistance or property for the commission by other persons of the offence under Article 20 of this Law shall be guilty of an offence.  …”

20.  With respect, I am not inclined to accept Mr Harris’s submission that “not by force” in the phrase “whether or not by force or threat of force” in NSL 20, correctly interpreted consistently with the BL, refers to “non-violent acts that are both unlawful and unacceptable, such as certain terrorist act(s)” and “other serious unlawful acts”.  My reasons are as follows. 

21.  Firstly, in my view by a natural reading of NSL 20, the phrase “whether or not by force or threat of force” clearly refers to the acts described by sub-paragraphs (1) - (3) which follows.  This is made all the more clear when NSL 20 (secession) and NSL 22^[26] (subversion) are put in juxtaposition: 

Article 20	Article 21
A person who organises, plans, commits or participates in any of the following acts,	A person who organises, plans, commits or participates in any of the following acts
whether or not by force or threat of force,	by force or threat of force or other unlawful means
with a view to committing secession or undermining national unification	with a view to subverting the State power
shall be guilty of an offence:	shall be guilty of an offence:
(1)    …   (2)    …; or (3)    ...	(1)    … (2)   … (3)    …; or (4)   ...

From the above, it can be seen that the two articles have the same structure.  Moreover, the phrase “by force or threat of force or other unlawful means” in NSL 20 clearly refers to its sub-paragraphs (1) - (3), just like the phrase “by force or threat of force or other unlawful means” in NSL 22 clearly qualifies its sub-paragraphs (1) - (4).  By a comparison of the two articles, there is a highly arguable case that the acts prohibited in sub-paragraphs (1) - (3) of NSL 20 do not require violence as an element. 

22.  On the other hand, Mr Harris’s suggested interpretation of NSL 20 seems objectionable in that it puts a strained meaning of the phrase “whether or not by force or threat of force” by reading words into the article which are not there.  Besides, his suggested interpretation is ambiguously disjunctive in that the “not by force” part and the “by force” part of the same phrase are artificially severed in such a way that each part applies to different activities.  The criteria which, Mr Harris suggests, should be employed to determine when the absence of “force” would not prevent the criminalization of a secession act, namely whether the act in question is both “unlawful and unacceptable”, is so imprecise that it is capable of leading to great conceptual uncertainty and practicable difficulties. The principle of legal certainty, however, requires reasonably clear boundaries to be set so that people know how to conduct their activities accordingly.   

23.  As to Mr Harris’s suggestion that “not by force” component of the phrase under consideration would include “other serious unlawful acts” such as hacking or attacking of computers operated by authorities or institutions concerning national security”, I have difficulties seeing that as the purpose of NSL 20.  If Mr Harris were right, then NSL 24^[27], which is specifically enacted to deal with the types of situation which Mr Harris has in mind, would be rendered largely redundant. 

24.  Based on the above, I am not inclined to accept Mr Harris’s suggested construction of NSL 20, as it is not borne out by a natural meaning of the text.  It is also inconsistent with other articles contained in Chapter III of the NSL. 

25.  Secondly, I am not inclined to accept that Mr Harris’s suggested interpretation is warranted by a consideration of the BL and BOR:

(i)     the courts have consistently recognized BL1[28] & 12[29] as the very foundation of the HKSAR and it is in this context that the BL should be construed: see eg, Ng Ka Ling & Ors v Director of Immigration[30].  In this context, NSL 2 says the same[31]; and

(ii)     the freedom of speech and freedom of expression as provided in BL 27 and BOR 16 are not absolute rights and can be subject to restrictions: see HKSAR v Ng Kung Siu, ante, where the Court of Final Appeal says that, “The implementation of the principle of “one country, two systems” is a matter of fundamental importance, as is the reinforcement of national unity and territorial integrity.”[32] Moreover, BOR 16 expressly provides that the exercise of the rights carries with it “special duties and responsibilities”.  In this regards, the European Court of Human Rights in Handyside v The United Kingdom, ante, which was a case about restricting the freedom of expression for the protection of morals, says the same.  The main issue in here is really about whether the restriction imposed by NSL 20 on the rights and freedoms concerned can meet the requirements of legal certainty and necessity in terms of national security.  However, in view of (i) above and the background leading to the enactment of the NSL, in my view NSL 20 is, at the very least, not indefensible. 

26.  I have not ignored the reliance of Mr Harris on “The Johannesburg Principles on National Security, Freedom of Expression and the Access to Information”^[33] which are concerned with the protection of the freedom of expression and information in the area of national security.  Useful as they are as a benchmark, the Johannesburg Principles do not belong to any international covenants and are not binding on the HKSAR.  Without looking into the merits of the argument about the Johannesburg Principles in any details, I note that there are provisions in that document which are at variance with the common law principles applicable in Hong Kong.^[34]  

27.  Furthermore, for the sake of argument, even assuming that Mr Harris was right in this regard, it would not assist the Applicant in the present case.  I do not think that it is accurate to say that “[t]here is no allegation that the Defendant did anything other than shout slogans and express his opinions”.  Based on what the Applicant is alleged to have repeatedly spoken in his various interviews with the media, which for obvious reasons this court will not go into details, there is an arguable case that the Applicant had gone too far even according to the test suggested by Mr Harris.  If the Applicant meant what he is alleged to have said, then the chanting of slogans like“全民勇武” (All People be Valiant) and “武裝起義” (Armed Revolt) is apparently not a “peaceful exercise of the right to freedom of expression”^[35] or a “mere publicity”^[36].

28.  Thirdly, with respect, the reliance by Mr Harris on Boucher v R, ante, which was about seditious libel, seems misplaced.  As aforesaid, the offence of “secession” is a newly created statutory offence which has no Common Law root and is different from “sedition”.  Therefore, I do not think it is helpful to use a comparison of the two offence as an interpretation tool for NSL 20. 

29.  Moreover, issue can be taken as to whether Boucher’s case stands for the narrow proposition, as Mr Harris submits, that sedition “must be based on a specific intention to incite violence”.  In my view, it is arguable that it is also a seditious intent to create a public disturbance or disorder against established authority.^[37]

30.  In short, based on the limited material before me, I am unable to accept Mr Harris’s submission that there is not a likelihood of conviction.

As to (1): Undertaking

31.  Mr Harris proposes to ameliorate the concern about the “risk of re-offending” by the Applicant giving an undertaking not to repeat the alleged conducts. 

32.  This court would not eliminate the giving of a similar undertaking as a means to satisfy the requirement of NSL 42(2)^[38] for the granting of bail in an appropriate case. 

33.  However, this is simply not appropriate in view of the multiplicity and frequency for the incidents in question.  As pointed out by Mr Chau, the Applicant had already been arrested 6 times for kindred offences namely, once for “unlawful assembly”, once for “inciting an unlawful assembly”, once for “incitement to secession” and thrice for “seditious intention” before the last one on 22 November 2020 when he was arrested for the present offence.  Moreover, for 5 out of the 6 occasions when he was granted police bail, he repeated the same or similar conduct almost immediately upon release.  His speeches also appear to become more radical over time. Notably, there is also material to show that on 3 November 2020 he told an online media publicly that,

“Anyway, even if I were arrested today, I would still show up after I have been released. Even if I were detained for 3 or 5 years, I would do the same after I have been released.”

In the present circumstances, it is difficult for this court to accept that the Applicant would abide by his undertaking.

As to (2): Likely sentence

34.  There is yet to be any decided cases on sentencing of NSL offences and it is difficult to foresee, in case of a conviction, what the Applicant’s sentence is likely to be. In view of the multiplicity and frequency of the incidents concerned, a custodial sentence can be expected.  However, it seems that the Applicant’s case is not the most serious of its type and therefore is unlikely to fall within the “not less than 5 years” category.  The point is supported by the indication of the Respondent that the likely venue of the trial is the District Court. 

35.  Whether the sentence, in case of conviction, would be in terms of months or years would depend on the evidence and mitigation factors.  Doing the best I can at this stage, I am not satisfied that the sentence would be as short as 3 months as Mr Harris submits.

36.  Nevertheless, if the trial dates cannot be fixed in the near future, it may eventually come to a stage when it could be unjust to detain the Applicant any longer before trial. Bearing in mind that the next mention day in the magistrates’ court for the Applicant’s case is on 10 February 2021 and that the prosecution is mandated to ensure that the case is handled in a timely manner: NSL 42(1), I would expect trials dates to be fixed in or about mid-April 2021.  If that does not happen, the Applicant may then consider re-applying for a second bail review.  However, if and when that arises, the result of the second bail review would depend on the state of the affairs at the time. 

Conclusion

37.  Having considered all the grounds put forward by Mr Harris, for the reasons given above, I consider that bail should not be granted to the Applicant.  Therefore, I refuse his present application for bail review.