HKSAR v. CHEUNG KIM HUNG

HCCP 418/2021

[2021] HKCFI 3372

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 418 OF 2021

(ON APPEAL FROM WKCC 2379 OF 2021)

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REASONS FOR DECISION

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Application

1.  This is an application for bail upon the Chief Magistrate’s[1] refusal of bail in relation to one charge of “Conspiracy to Commit Collusion with a foreign country or with external elements to endanger national security”, contrary to Article 29(4) of the National Security Law (the “NSL”) and sections 159A and 159C of the Crimes Ordinance (Cap 200).

2.  According to NSL Article 29, a person who commits an offence of a grave nature shall be sentenced to life imprisonment or fixed‑term imprisonment of not less than ten years.

3.  I refused the Applicant’s bail at the end of the hearing on 5 November 2021, saying that I would give my brief reasons in due course.  This I now do.

The Respondents case against the Applicant

4.  In brief, the Respondents case is that between 1 July 2020 and 3 April 2021 (both dates inclusive), the Applicant together with Mr Lai Chee-ying (“Mr Lai”), Mr Law Wai Kwong (“Mr Law”) and other persons including three corporate defendants namely, Apple Daily Limited, Apple Daily Printing Limited and AD Internet Limited conspired to commit collusion that is to request a foreign country or an institution, organisation or individual outside the mainland, Hong Kong, and Macao of the People’s Republic of China, to impose sanctions or blockade, or engage in other hostile activities against the Hong Kong Special Administrative Region or the People’s Republic of China (“the Purpose”).

5.  The Respondent alleged the offending materials were that:

(a)  Apple Daily (a local newspaper) had been publishing articles in paper and digital versions for the Purpose.

(b)  Since May 2020, Apple Daily commenced operating a free online English version for the Purpose.

(c)  Apple Daily’s digital version has been used by Mr Lai to host live interview sessions under the title “Live Chat with Jimmy Lai” for the Purpose.  These live interviews were recorded and made available on the YouTube channel and the social media platforms of Apple Daily.

6.  The Applicant has been the director of the three corporate defendants since 1 February 2018.  He was also the representative of the proprietor and publisher of Apple Daily’s paper version (i.e. Apple Daily Limited) since 8 June 2016.  The Applicant was appointed as Deputy Chief Executive Officer of Next Digital Limited in October 2017 and he became an Executive Director and Chief Executive Officer of Next Digital Limited in February 2018.  He was also the Publisher of Apple Daily, and he had been the Chief Executive Officer‑Publishing since June 2016 to oversee the operation in newspapers and magazines of Next Digital Limited in both Hong Kong and Taiwan.

7.  The Applicant, by reason of holding various positions in the group of companies known as the “Next Digital Group” which ran the Apple Daily, has thereby conspired with three subsidiaries of the Next Digital Group, Mr Lai, Mr Law and others to commit collusion with a foreign country or with external elements to endanger national security contrary to the NSL.

8.  By reason of the Applicant’s various positions and the articles, posted and published, the Applicant has in furtherance of the conspiracy:-

(a)  actively participated and was involved in setting the editorial policies and overseeing the day-to-day practice of Apple Daily;

(b)  authorised and directed the publishing and posting of the allegedly offending materials;

(c)  had an active role in setting Apple Daily’s editorial policy;

(d)  supervised the publication of the Chinese editorial articles in both paper and digital versions;

(e)  directed the choosing of authors in writing editorial articles and the content of editorial articles with specific themes.

9.  In the premises, the Respondent asserts that the Applicant has conspired with Mr Lai and others to use Apple Daily (both its paper and digital versions) as the platform or vehicle to publish and/or post the allegedly offending materials to request foreign parties to impose sanctions or blockade, or engage in hostile activities against the PRC or the HKSAR.

10.  The Respondent further contends that consequent to the said alleged conspiracy, legislations, sanctions and other hostile activities against the PRC and the HKSAR were introduced in the United States and other countries.

The Applicants submission

11.  Mr Jose Maurelett SC leading Ms Rosa Lee submitted on behalf of the Applicant, the Respondent’s case against the Applicant was solely based on his employment and management role in the Next Digital Group.  There is no allegation that the Applicant was involved in the alleged conspiracy in his personal capacity nor indeed any other capacity.

12.  There is no allegation or evidence that the Applicant has personally nor in any other capacity shared, distributed or circulated any of the allegedly offending materials by any means, whether on social media or otherwise.  There is no allegation or evidence that the Applicant himself has any political or foreign connections.  There is no allegation or evidence that the Applicant has held any political belief or agenda or had a history of publishing materials endangering national security.  The Applicant’s involvement in the alleged conspiracy was solely inferred from his senior positions in the Next Digital Group.

13.  In the premises, apart from the Applicant’s positions in the Next Digital Group, there is no other allegation or evidence linking the Applicant to any alleged acts endangering national security.

14.  The Applicant himself denies his position held involved editorial or publication responsibilities.  On the contrary his job duties focused on high-level strategic planning, budgeting, finance and general business operation of the entire Next Digital Group.

15.  The Next Digital Group adhered to the principle of editorial independence such that senior management (including the Applicant) was not involved in approving any of the articles or videos published in Apple Daily. Moreover there was no evidence that the Applicant was involved in the drafting, editing, reviewing or approving of any of the alleged offending materials and none were written, hosted or created by the Applicant.

16.  More importantly, the Next Digital Group has already permanently shut down the business of Apple Daily newspaper and Next Magazine.  There has since been no publication by Apple Daily (both paper and digital).  The Applicant has also resigned from all his positions in the Next Digital Group.  In such circumstances, it is simply impossible for the Applicant to commit any alleged (or similar) act to endanger national security through the Next Digital Group or Apple Daily.

17.  Even broadening the analysis to look at any “acts endangering national security” unconnected to Apple Daily, there are also sufficient grounds to believe that the Applicant would not commit any such acts for reasons explained above.

18.  There is also no allegation or evidence that the Applicant has the motive, influence, resources or connection (political, international or otherwise) to carry out any act endangering national security.  In such circumstances, there are simply no materials on which this Court could base to conclude that the Applicant will continue to commit acts endangering national security.

Respondents submissions

19.  Mr Andy Lo and Ms Crystal Chan on behalf of the Respondent objected to the Applicant’s bail on the ground that the Court does not have sufficient grounds for believing that the Applicant will not continue to commit acts endangering national security and that bail should be refused.  I have incorporated them into the below three main grounds.

20.  The first is that the Applicant has established, and is still maintaining, a strong tie with the subsidiaries of Next Digital Limited, which are based in Taiwan.  The Applicant remains a director in these Taiwanese Companies.  The Applicant, has supervised and managed Next Digital Limited’s business operations (including magazine, newspaper and online news platform) in Taiwan, established the connection, association and influence to gain access to a readily available platform.  One can access the platform via the web to its Taiwan portal and the Taiwan company has considerable capital of about $141 million.

21.  Even after the promulgation of the NSL in Hong Kong, Apple Online (Taiwan) posted articles for making unfounded allegations against the HKSAR Government and the Hong Kong Police repeatedly.  The present case is concerned with a conspiracy with other persons to commit collusion with a foreign country or external elements to endanger national security, which, by its very nature, can be committed covertly and secretly.  Therefore the risk and ability of the Applicant continuing to commit acts endangering national security is real and substantial.

22.  Secondly, further, in pursuance of the conspiracy, not all the co-conspirators have to execute the plan himself.  This is the case here.  As clearly shown in the facts of the present case, the Applicant has assumed a senior position who authorized, directed and supervised the others to publish and post articles and videos by Apple Daily in its paper and digital versions.  Mr Lo, submitted each was performing a different function.  The Applicant does not have to be the one that post messages on social platforms.  However, he assumed a senior position who authorized, directed and supervised others to publish and post articles.

23.  Thirdly, the Applicant’s (and the co-conspirators’) have a close association with the USA and foreign political groups as evidenced by their prompt reactions condemning law enforcement actions against the Applicant and the condemnation of NSL and enforcement actions against Apple Daily[2].

The Assessment

24.  Article 42(2) of the NSL provides that:-

“When applying the laws in force in the Hong Kong Special Administrative Region concerning matters such as the detention and time limit for trial, the law enforcement and judicial authorities of the Region shall ensure that cases concerning offence endangering national security are handled in a fair and timely manner so as to effectively prevent, suppress and impose punishment for such offence.

No bail shall be granted to a criminal suspect or defendant unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security.”

25.  The construction of Article 42(2) of the NSL was considered by the Court of Final Appeal in HKSAR v Lai Chee Ying (2021) 24 HKCFAR 33.  At paragraph 57 of the CFA judgment all bail decisions involve a risk assessment looking to the future.

26.  In applying Lai Chee Ying (CFA), Pang J (as Her Ladyship then was) in HKSAR v Lai Chee Ying HCCP 738/2020, [2021] HKCFI 448 pointed out that what the Court has to do is to carry out “a predictive and evaluative exercise” on all the available evidence before the court, which include matters which are not admissible as evidence.

27.  In making my assessment, I have taken into my consideration all the relevant matters before me, including such matters as the Applicant’s background, his associations, community ties and financial position.

Conclusion

28.  Having considered all the relevant matters, including the materials before me, the parties’ submissions, as well as the bail conditions offered, I am not satisfied that there are sufficient grounds for believing that the Applicant will not continue to commit acts endangering national security if bail is granted to him.  For those reasons at the end of hearing I announced that the Applicant’s bail application was refused.