SECRETARY FOR JUSTICE v. SZE TAK LOY

HCCP 115/2021

[2021] HKCFI 900

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO. 115 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.  Ms Yang submitted that the Applicant participated in the Primaries and signed the Online Declaration, and he being the chairman of ADPL Party, had used strong words against the Hong Kong Government.  With his influence, it is submitted by Ms Yang that his acts and words may continue to endanger national security and therefore the bail should be refused.      

7.  Mr Leung submitted that what the Respondent had said as pointed out by Ms Yang in her written submissions were merely electioneering rhetoric. After he failed to gain enough votes in the Primaries, the Respondent have not said anything further. In fact, Mr Leung pointed out that after the Primaries, he focused all his energy on his service as the District Councillor, and was of great service to the community during the COVID-19 emergency. As evidenced by the letters from some members from his community, which is exhibited to the Affirmation of the Respondent[6]. From his record as a District Councillor, it was obvious that he had at various times co-operated with the government over community affairs.  Furthermore, he is not a man of wealth, and that taking everything into consideration, Mr Leung submitted that the Respondent can satisfied the Court that he would not continue to offend against the NSL if granted bail.      

8.  On the second threshold, Mr Leung submitted that the Respondent has a clear record, he is not a wealthy man, his roots are permanently in Hong Kong, and so his risk of absconding or re-offending is not high.  With the bail conditions which the learned Chief Magistrate had deemed sufficient, that would prevent him from not surrendering to custody as the Court may appoint. 

9.  Having considered all the materials before me, including counsel’s submissions, both oral and written, 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 to him. 

10.  Having considered the second threshold, I accept that the terms and bail conditions as imposed by the learned Chief Magistrate would be sufficient to ensure that the Respondent will surrender himself to custody as the Court may appoint. 

11.  So I endorse the bail conditions as imposed by the learned Chief Magistrate.  The application is therefore refused and bail is granted to the Respondent on the same terms as imposed by the learned Chief Magistrate.