HKSAR v. FUNG WAI KONG

HCCP 678/2021

[2022] HKCFI 1017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO 678 OF 2021

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REASONS FOR DECISION

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1.  The Applicant, together with 9 others and 3 companies related to Apple Daily, are charged with the following conspiracies:

(1)  One count of “conspiracy to commit collusion with a foreign country or with external elements to endanger national security”, contrary to the National Security Law[1] (“NSL”) Article 29(4) and sections 159A and 159C of the Crimes Ordinance, Cap 200.

(2)  An additional count of “conspiracy to print, publish, sell, offer for sale, distribute, display and/or produce seditious publications”, contrary to section 10(1)(c), and sections 159A and 159C of the Crimes Ordinance, Cap 200.

2.  The Applicant’s bail application was refused by the learned Chief Magistrate and I am informed that the prosecution is ready to proceed with the committal to the Court of First Instance.    

3.  The allegation of the Respondent in the case is that the Applicant wrote articles for publication in Apple Daily, using the pseudonym of “Lo Fung” (盧峯).  For example, in an article on 12 September 2019, it was alleged that: “… The public will be on tenterhooks all the time, not knowing when they will be badly beaten by unidentified people (possibly off duty police officers) with batons and trapped in a MTR station for hours without medical attention.” 

4.  From May 2020, Apple Daily started operating a free online English version of their articles and content.  The Respondent alleged that the English version was directed at non-Chinese speaking people. 

5.  On 10 June 2020, the Applicant, having resigned in 2013, re-joined Apple Daily as the “English Edition Managing Editor – General News / Management”.  The Respondent alleged, inter alia, on 18 July 2020, in an article in the digital English version[2] under the title “Will U.S. sanction Carrie Lam?”.  It was suggested in the article that the U.S. sanction could include “freezing assets and denying entrance to the country, sanctioning banks that provide services to them is one of the options”.

6.  On 12 October 2020, Article 16 at Annex B of Enclosure 5, the article read:

“Japan, Australia, and other Western countries will soon need to take a side and act on technology embargo against China. The concerted sanction will mean more than putting a stop on China’s economic and technological growth. Many of China’s military and social control apparatus rely on components and technology imported from the United States or other countries; …”

7.  The above are just some of the examples that had been listed in the annexures submitted by the Respondent.  I do not need to expand further on this, as articles in the document bundle enclosed with the Respondent’s submission speak for themselves.

8.  The Respondent further alleged that the Apple Daily suspended operations on 24 June 2021.  In the period leading up to its closure, the Respondent has listed out in paragraph 18 of their submission the various acts that was imposed by the U.S. in the form of sanctions against the PRC and the HKSAR government. 

9.  It has also been pointed out by the Respondent that after the Apple Daily closed its operation on 24 June 2021, the Applicant was arrested on 27 June 2021 at the HK International Airport before he boarded the plane to London.

10.  The Respondent objected to the bail on the basis that the Applicant cannot succeed in overcoming the first threshold that laid down by the CFA in the case of HKSAR v Lai Chee Ying[3], as the Court had no sufficient grounds for believing that the Applicant will not commit acts endangering national security if granted bail.  For he had shown himself to be determined and resolute in his position as the Managing Editor of the English Edition, and the consistent role he took in writing articles under the pseudonym of “Lo Fung” (盧峯).   

11.  Clearly also as shown by foreign interest in the demise of Apple Daily, Mr Chau submitted that the influence of the Applicant as Managing Editor was a powerful one, and therefore, he would have the means to continue to commit acts endangering national security.

12.  Mr Cheung on behalf of the Applicant, submitted that the Applicant although arrested at the airport, had in fact bought a return ticket as he was planning to write a book, as asserted in the emails which he exchanged with someone called Mr Alan Tayler.  He was planning to resign from Apple Daily in June 2021 and he had an agreement with an officer in Apple Daily that the three months’ notice would be waived. 

13.  He therefore, was going to the UK to talk about the coming publication of his book.  The ticket that he was travelling on was a return ticket returning to Hong Kong on 30 August.  So, it clearly showed that the Applicant was not intending to abscond.     

14.  Mr Cheung suggested that the Applicant had earlier resigned from Apple Daily because of differences in opinion and he later re-joined in June 2020 as Managing Editor of the English Apple Daily digital version. 

15.  Mr Cheung submitted that the readership of the English version was low.  The Applicant had no control over the articles that were published in the digital version, as it is decided by the editorial board.  He is merely a conduit for those articles. 

16.  This was to me illogical because as I said to Mr Cheung, why would the Applicant be paid over $100,000 a month, merely as a conduit for articles decided by the editorial board, which has to be published on the Apple Daily English version, to which Mr Cheung had no satisfactory answer.   

17.  Many character references were submitted by Mr Cheung, which showed that the Applicant was a respected writer, and had commanded respect within his profession.  I have no doubt about that.

18.  However, as Mr Chau pointed out, as the Apple Daily was still an ongoing publication in Taiwan, and because of the influence of the Applicant over the years, it would be easy for him to continue to publish seditious articles using the Taiwan platform. 

19.  Having read the documents supplied by both the Applicant and the Respondent, I have come to the conclusion, therefore, that I am not satisfied that if bail is granted, the Applicant will not continue to commit acts endangering national security.  So, he had failed to overcome the first threshold.

20.  I, as for most cases involving NSL in the bail applications, I am more reticent about what should be said in my reasons for refusing bail, because as I have said many times before, that I do not wish to taint the future proceedings that the Applicant will face.   

21.  Finally, I will point out here that as for the additional count of “conspiracy print, publish, sell, offer for sale, distribute, display and/or produce seditious publications”, contrary to section 10(1)(c), and sections 159A and 159C of the Crimes Ordinance, Cap 200, as Mr Chau submitted, it is now settled that the offence is subject to NSL Article 42(2) in consideration of bail.[4]