SECRETARY FOR JUSTICE v. TAM MAN HO JEREMY JANSEN

HCCP 114/2021

[2021] HKCFI 791

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO. 114 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 apart from the Respondent joining the Primaries, the Respondent had also attended a press conference on the 25 March 2020[6] where he pointed out that apart from using the veto power as a Legislative Council (“LegCo”) member, to veto the budget and ultimately force the Chief Executive to resign, he would continue to veto, no matter who took over as Chief Executive, until the five demands are met. 

7.  Ms Yang submitted that the Respondent was one of five signatories of a letter addressed to the United States Senate and United States House of Representatives dated 2 September 2019, where they urged that the passage of the Hong Kong Human Rights and Democracy Act 2019 should be passed, which was detrimental to the Government of Hong Kong and its citizens.  Ms Yang submitted that all the Applicant’s facebook pages also showed his strong conviction and enthusiasm to undermine the Hong Kong Government. 

8.  Mr Choy SC argued that the letter referred to by Ms Yang to the United States Senate, was prior to the NSL and that since the Respondent’s resignation from LegCo, he was no longer in politics and would be devoting his time to his family. Mr Choy SC submitted an affirmation made by the assistant of the Respondent, Miss Nip, attaching emails from the United States Consulate in Hong Kong, addressed to the Respondent dated 25 September 2020, 8 December 2020 and 17 February 2021, inviting the Respondent to meet the Consul General for coffee.  Mr Choy SC said that the Respondent never replied to these invitations. 

9.  Mr Choy SC further submitted that the Respondent had bought property in China, and that he was not, as he puts it, a “laam chau” person, and that he is working very hard in operating his restaurant and would have no time to do anything detrimental to the interest of Hong Kong.  

10.  In reply, Ms Yang submitted that the last email the Respondent received from the United States Consulate, actually invited the Respondent to “catch up”.  And Ms Yang submitted that, therefore, despite his resignation from Legco, and purported departure from politics, he was still a man of interest to foreign powers. 

11.  As Anthea Pang J had stated in the case of HKSAR v Lai Chee Ying[7], it is “a predictive and evaluative exercise” that one had to do when considering the first threshold as stipulated by the Court of Final Appeal in dealing with bail application under the NSL.  It is not an easy exercise and the Court had to take into account all the materials, including materials that may not be admissible as evidence at trial, to make an evaluation as to whether the Respondent will continue to commit offences under the NSL.  There is no doubt the Respondent was key signatory of the letter to United States Congress and his influence is evidenced by many invitations to meet the United States Counsel.    

12.  Having considered all the materials before me, including counsels’ submissions, both written and oral, I am satisfied that there are no sufficient grounds for believing that the Respondent will not continue to commit acts endangering national security if bail is granted. 

13.  So the application of the Applicant is allowed and bail is revoked.