SECRETARY FOR JUSTICE v. PANG CHEUK KEI

HCCP 111/2021

[2021] HKCFI 850

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO. 111 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.  It is argued by Ms Yang on behalf of the Applicant that the Respondent had confirmed his agreement with the online declaration when he published the Online Declaration in his Facebook page on 10 June 2020 prior to submitting the Primaries Nomination Form.  On 29 June 2020 when the Respondent attended the election forum[6], he was adamant that upon being elected to Legislative Council, he would continue to fight against the Government and help in “支援街頭抗爭”. Furthermore, pamphlets seized from the Respondent’s election campaign had advocated the agenda of “mutual destruction”. [7] Therefore Ms Yang pointed that all the above shown the determination of the Respondent to be readily disposed to committing the prohibited acts under the NSL. 

7.  Ms Lo submitted that all that was said by the Respondent was pure “election rhetoric”.  After the Respondent lost in the Primaries, he did not attend the press conference, nor did he participate in any manner whatsoever, after the Primaries, and he, after graduation from the University of Hong Kong, had set up several businesses, one of them being an outfit called “Youth Business Alliance” which in fact recommended to the young people that there is great potential and opportunities in the Greater Bay Area. And so Ms Lo submitted that, rather than working against the Mainland, he was advocating that young people should seek their future in the Greater Bay Area.

8.  Ms Lo also submitted that the Respondent, as a District Councilor, had co-operated with the Government, to benefit to the residents in his constituencies in 2020 as evidence in Enclosure 3 attached to her submission.  And it is clear from the Facebook of the Respondent that he has no strong political influence. 

9.  I have to make a predictive evaluation from all the materials before me.  While it is true that there were some strong words, or as Ms Lo pointed out, rhetoric, coming from the Respondent.  In truth, the past conduct of the Respondent, together with his work to the community, and his business plan for the young people as Ms Lo pointed out, had shown that he is not “anti-Mainland”.

10.  So having evaluated all the materials before me, the submissions, both oral and written of both counsel, I am satisfied that there are sufficient grounds for believing that the Respondent will not continue to commit acts endangering national security if bail is granted.  So therefore, the Respondent has successfully passed the first threshold. 

11.  In relation to the second threshold, I have to decide whether the Respondent may not surrender to the custody as the Court may appoint.  As Ms Yang had put forward the factors of the risk of absconding and the risk of re-offending, I am satisfied that the condition for bail which was imposed by the learned Chief Magistrate would ensure that the Respondent will surrender to custody as the Court may appoint.

12.  Therefore, I will impose the same conditions that had been imposed by the learned Chief Magistrate.