HKSAR v. CHOW HANG TUNG AND OTHERS

HCMA 99/2023

[2024] HKCFI 553

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appeal against Conviction and Sentence)

MAGISTRACY APPEAL NO 99 OF 2023

(ON APPEAL FROM WKCC 3633 OF 2021)

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J U D G M E N T

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Background

1.  At A1, A2 and A3 (“the Appellants”), together with two others [1] were jointly charged with the offence of “Failing to comply with notice to provide information” [2]. They were convicted on 4 March 2023 after trial before Mr Peter Law, Principal Magistrate (“the Magistrate”). On 11 March 2023, each of them was sentenced to 4½ months’ imprisonment.

2.  The Appellants appeal against with conviction and sentence.

3.  The particulars of the offence state:

“CHOW Hang-tung, TANG Ngok-kwan, … and TSUI Hon-kwong, on the 8^th day of September, 2021, being an office-bearer of Hong Kong Alliance in Support of Patriotic Democratic Movements of China in Hong Kong, or a person managing or assisting in the management of the said organization in Hong Kong, who has been served with a notice under section 3(1)(b) of Schedule 5 to the Implementation Rules for Article 43 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (Instrument A406A), failed to comply with the said notice.”

The Facts

4.  The Hong Kong Alliance in Support of Patriotic Democratic Movements of China [3](“HKA”) was incorporated in 1989 as a company under the Companies Ordinance. At the material time, D1 was the vice-chairperson while A2 and A5 were committee members of the HKA.

5.  Pursuant to section 3(1) of Schedule 5 to the IR, on 25 August 2021 the Commissioner of Police (“CP”) issued and served notices on the Appellants and others requiring for some specified information in writing with supporting documents within 14 days, i.e. on or before 7 September 2021(“the Notices”).

6.  Before the expiration of the prescribed period, the Appellants held a press conference announcing their non-compliance and subsequently presented an open letter to the CP on 7 September 2021, the last day of the prescribed period, to show their dogged determination of non-compliance.

7.  Most of the facts were not in dispute at trial. The essence of the trial was basically about the legitimacy of the Notices.

The relevant NSL provisions

8.  Article 43 of the NSL confers on the law enforcement authorities the power to take certain measures when handling cases concerning offence endangering national security. The Chief Executive is authorized, in conjunction with the Committee for Safeguarding National Security of the HKSAR (“CSNS”) to make Implementation Rules (“IR”) for the purpose of applying the said measures.

9.  Section 3(3) of Schedule 5 [4] to the IR provides:

“3. Regulation of foreign or Taiwan agents

(1) If the Commissioner of Police reasonably believes that it is necessary to issue the requirement for the prevention and investigation of an offence endangering national security, the Commissioner may from time to time, with the approval of the Secretary for Security, by written notice served on a foreign agent or Taiwan agent, require the agent to provide the Commissioner with the following information within the specified period in the specified way –

…

(b) if the agent is an organization –

(i) the personal particulars of the staff of the organization in Hong Kong, and of the members of the organization in Hong Kong (including name, age, type and number of identification document, occupation and residential address);

(ii) the activities of the organization in Hong Kong;

(iii) the assets, income, sources of income, and expenditure of the organization in Hong Kong.”

…

(3) If a foreign agent or Taiwan agent is an organization –

(a) the obligations imposed on the agent by subsection (1)(b) is binding on every office-bearer in Hong Kong, and on every person managing or assisting in the management of the organization in Hong Kong, if the office-bearer or person has been served with the notice under subsection (1); and

(b) if the agent fails to comply with a notice served under subsection (1)(b), every office-bearer and person who is mentioned in paragraph (a) and who has been served with the notice commits an offence and is liable on conviction on indictment to a fine of $100,000 and to imprisonment for 6 months unless the office-bearer or person establishes to the satisfaction of the court that the office-bearer or person has failed to comply with the notice for reasons beyond the office-bearer’s or person’s control.”

10.  “Foreign agent” and “foreign political organization” are defined in section 1 of Schedule 5:

“ foreign agent (外國代理人)—

(a) means a person who carries on activities in Hong Kong, and—

(i) is directly or indirectly directed, directly or indirectly supervised, directly or indirectly controlled, employed, subsidized or funded by a foreign government or foreign political organization, or accepts monetary or non-monetary rewards from a foreign government or foreign political organization; and

(ii) carries on all or part of the person’s activities for the benefit of a foreign government or foreign political organization; but

(b) does not include a diplomatic agent, a consular officer, or an employee of a consular post, who is entitled to privileges and immunities in Hong Kong in accordance with the laws of Hong Kong, or any other person or body that is entitled to privileges and immunities in Hong Kong in accordance with the laws of Hong Kong;

foreign political organization (外國政治性組織)—

(a) means—

(i) a political party outside the territory of the People’s Republic of China;

(ii) any other organization outside the territory of the People’s Republic of China that pursues political ends; but

(b) does not include a political organization that does not carry on activities (including activities carried on through another person) in Hong Kong;”

The Notice

11.  The Notices issued to the Appellants contain the following detail:

“ According to the police investigation, the Commissioner of Police has reasonable grounds to believe that the “Hong Kong Alliance” is a “foreign agent” specified in Section 1 of Schedule 5. Under Section 3(1) of Schedule 5, as the Commissioner of Police reasonably believes that it is necessary to issue the requirement of this notice for the prevention and investigation of an offence endangering national security, the Commissioner, with the approval of the Secretary for Security, by this notice served on the “Hong Kong Alliance”, requires the “Hong Kong Alliance” to provide the Commissioner with the following information in writing, together with relevant supporting documents, within 14 days:

(1) For the staff members in Hong Kong and the members in Hong Kong since the establishment of the “Hong Kong Alliance”, that is, the following persons:

(i) directors,

(ii) standing committee members (and)

(iii) full-time staff members,

their personal information, including name, date of birth, type and number of the identification document, contact phone number, residential address, position and employment period shall be provided;

(2) For the activities held in Hong Kong by the “Hong Kong Alliance” from 2014 to present, involving the following organizations or person [regardless of the organizations or person participating in the activities as joint organizers, co-organizers, sponsors or attendees, and including the activities conducted by contracting with the places outside Hong Kong with the use of the communication technology]:

(i) “New School for Democracy” established in Hong Kong,

(ii) “China Human Rights Lawyers Concern Group”,

(iii) political parties outside the territory of the People’s Republic of China or in Taiwan or other organizations outside the territory of the People’s Republic of China or in Taiwan that pursue political ends and/or their branches in Hong Kong, including “Federation for a Democratic China”, “Asia Democracy Network”, “New School for Democracy”, “The National Endowment for Democracy” and the organizations that receive money from “The National Endowment for Democracy” [including “National Democratic Institute”, “International Republican Institute”, “Solidarity Center” and “Center for International Private Enterprise”],

(and)

(iv) Mark Herman SIMON [5],

Information on the activities concerned, including name, purpose, date, time and place of the activity, details of the person-in-charge, source of fund and breakdown of the expenditure, and all records of contacting the aforesaid organizations or person for organizing, holding, sponsoring or attending the aforesaid activities [including the electronic communication records] shall be provided;

(3) Minutes of the following meetings that the “Hong Kong Alliance” convened in Hong Kong from 2014 to present [including the meetings with the places outside Hong Kong by communication technology] shall be provided:

(i) board meetings and standing committee meetings,

(ii) meetings with political parties outside the territory of the People’s Republic of China or in Taiwan or other organizations outside the territory of the People’s Republic of China or in Taiwan that pursue political ends and/or their branches in Hong Kong [including “Federation for a Democratic China”], (and)

(iii) meetings with Mark Herman SIMON;

(4) The assets, revenue, sources of revenue and expenditure of the “Hong Kong Alliance” in Hong Kong from 2014 to present shall be provided, that is;

(i) details of account(s) directly or indirectly held with the local bank(s) currently or previously, including the account number, the account holder and/or the ultimate beneficial owner,

(ii) details of the assets like the property, vehicle(s), stock(s), etc., in Hong Kong directly or indirectly held currently or previously,

(iii) all transactions and money dealing, including reason, purpose, date, amount, the bank account and the account book(s) involved, with “New School for Democracy” [whether it was established in Taiwan or Hong Kong or other places]; “China Human Rights Lawyers Concern Group”; “Federation for a Democratic China”; “Asia Democracy Network”; “The National Endowment for Democracy”; and the organizations that receive money from “The National Endowment for Democracy” [including “National Democratic Institute”, International Republican Institute”, “Solidarity Center” and “Center for International Private Enterprise”]; Mark Herman SIMON; and political parties outside the territory of the People’s Republic of China or in Taiwan or other organizations outside the territory of the People’s Republic of China or in Taiwan that pursue political ends and/or their branches in Hong Kong, (and)

(iv) reason and purpose of CHOW Hang-tung, the vice-chairperson of the “Hong Kong Alliance”, receiving some HK$3,000 from “Asia Democracy Network” on 4^th February 2021 shall be provided.”

Grounds of Appeal against Conviction

12.  Mr Philip Dykes SC [6], for the Appellants, raised a total of 6 grounds in the Perfected Grounds of Appeal against Conviction:

(1)  No finding of the essential condition precedent to the Notice.

(2)  Legality of the Notice: conflation the issues of reasonable belief and necessity.

(3)  Public Interest Immunity (“PII”) causing unfair trial.

(4)  Material irregularity of PW1’s oral testimony – exclusion of relevant evidence.

(5)  Legality of the Notice – ultra vires.

(6)  Legality of the Notice – retrospectivity.

13.  The 6 grounds are restructured as the following 4 principal heads of appeal in the Submissions for the Appellants:

(1)  Main issue of statutory interpretation – whether section 3(1)(b) of Schedule 5 to the IR requires the prosecution to prove as a fact that HKA was a foreign agent within the meaning of those words in section 1 of Schedule 5 (Ground 1).

(2)  Evidence – whether there was evidence to support the Magistrate’s finding that:

(a)  HKA was a foreign agent in section 1 of Schedule 5 (Ground 1); and

(b)  Factual matters alleged in exhibit P20(1)[7], the recommendation which the CP relied upon to justify serving the Notices to the Appellants (“Recommendation”), existed (Ground 2).

(3)  Fair Trial – whether the Magistrate’s (i) rulings on PII claims of the prosecution and (ii) permission for PW1 [8] to choose not to answer any question put to him by the A1 had or may have deprived the Appellants of their right to a fair trial (Grounds 3 and 4).

(4)  Legality of the Notices – whether the Notices conformed with the requirements of section 3(1)(b) of Schedule 5 (Ground 2) or were ultra vires (Ground 5) or of retrospective effect (Ground 6).

Legality of the Notices

14.  In his preliminary determination, the Magistrate ruled, as a matter of law, the defence was not barred from challenging the legality of the Notices given that there was no existing mechanism for licensing nor registration of foreign agent, and the norm was all entities were without obligation to disclose their composition, activities or means unless by stipulation [9]. He also ruled that the prosecution needed not prove the subject organization was as a matter of fact a foreign agent [10].

15.  As the issues raised by the Appellants engaged the proper construction of the elements of the offence, it would be incumbent upon me to revisit the Magistrate’s preliminary ruling on whether it is open to the defence to challenge the legality of the Notices in the context of Schedule 5 to the IR in a criminal trial before consideration of the different heads raised by the Appellants. In any event I am bound to revisit this issue afresh given the rehearing nature of the Appellants proceedings.

16.  On behalf of the Respondent, Mr Ivan Cheung, ADPP (Ag) [11], submits that the legality of the Notice is not open to be challenged by way of defence in criminal proceedings. Judicial review is clearly the more appropriate process for such matters to be dealt with. A Notice which on its face complied with the requirement under section 3(1) of Schedule 5 and clearly directed at the prevention and investigation of offence(s) endangering national security should be presumed to have been validly issued and to continue in force unless and until it is quashed on judicial review or in other proceedings. That is particularly so when the regime under Schedule 5 is consistent with human rights and fundamental freedoms being duly considered as part of the legislative process. The Appellants were under a legal obligation to comply with the Notice as long as it was valid on its face at the material time.

17.  Mr Cheung contends that it can’t possibly be the legislative intent to allow a person to disregard a duly served Schedule 5 Notice which remains valid on its face, then to wait to challenge its underlying merits in criminal proceedings if a charge is laid against him, and to demand disclosure of the underlying and/or going investigative information or materials and the evaluations of the CP/ the Secretary for Security thereon. He says the legality is not an element of the offence and it does not fall upon the court to adjudicate upon the same. To construe otherwise, the purpose of issuing the written notices would be wholly defeated, and the aims or objectives of regulating foreign agents under Schedule 5 could never be possibly or effectively implemented.

18.  In respect of this matter, I have had regard to the recent judgment of the Court of Final Appeal in HKSA v Chow Hang Tung [12]. In that case, the respondent was charged with “inciting others to knowingly take part in an unauthorised assembly”. At trial, the respondent sought to challenge the legality of a prohibition order issued by the CP to prohibit an intended public meeting on 4 June 2021. The respondent was convicted after trial by the Magistrate who decided that it was not open to her to challenge the validity of the prohibition by way of defence during the criminal trial, holding that such a challenge should have been dealt with by way of judicial review. The issue to be considered in this appeal the Court of Final Appeal considered whether and on what basis an accused may raise a collateral challenge to the legality of an administrative act or order as a defence in criminal proceedings.

19.  In his judgment which was agreed by Fik PJ and Gleeson NPJ, Ribeiro PJ considered the situation where the person seeking to mount a collateral attack questioning the lawfulness of an administrative order by way of criminal defence is the very person against whom that order was specifically directed as intended by the statute pursuant to which the order was made (the “same person” cases) and said [13],

“123. In same person cases, the order sought to be impugned is, in accordance with the legislative purpose of the enabling statute, directed distinctively at the individual or individuals concerned (and not generally at members of the public or members of a class of individuals) requiring them to comply with the order. Such individuals must realise that they will face prosecution if the order is contravened. If aggrieved by the order, it is reasonable to expect those persons to challenge it by an available appeal procedure and/or by judicial review. Where such a challenge has been unsuccessful (or not resorted to) and they go ahead with contravening the order, the authorities show that an attempt by them to mount a collateral attack against the order’s legality by way of defence in a consequent prosecution is generally held to be precluded as a matter of statutory construction.

124. For example, in R v Wicks, [14] a local planning authority had served an enforcement order on the defendant requiring him to remove certain parts of a building erected in breach of planning control. The defendant appealed to the Secretary of State without success but persisted in failing to comply with the notice. When prosecuted, he sought to challenge the enforcement order on the basis that it had been issued in bad faith and motivated by immaterial considerations. Lord Hoffmann noted the “same person” aspect of the case, observing:

“As Keene J. said in the Court of Appeal, the owner has been served with the notice and knows that he has to challenge it or comply with it. His position is quite different from that of a person who has contravened a byelaw, who may not have heard of the byelaw until he contravened it.” [15]

…

127. Boddington was therefore not a “same person” case and the appellant was not precluded from raising a collateral attack challenging the vires of the byelaw by way of defence, although that challenge was held to be unsuccessful.

128. An example of a “same person” approach in our courts is HKSAR v The Incorporated Owners of No 10 Bonham Strand. [16] The defendants there failed to comply with a Fire Services Department direction specifically requiring them to install a sprinkler system in their premises and did not seek to challenge that direction until they were prosecuted and convicted before the Magistrate for such failure. They sought to argue on appeal that it was an unreasonable direction because the premises were so small. McMahon J held that that argument was not open to them, stating: “... unlike the position in Boddington’s case where the defendant was unaware of the particular order or law until or shortly before he committed and was charged with the offence” the defendant was given ample time by the Ordinance and direction issued to challenge the direction in the High Court which was a more appropriate forum. [17]

…

130. The same person cases may juridically be explained on the basis of statutory construction. It is held in such cases that the legislative intent is for such individuals to have recourse to the means made available to challenge the orders which had been explicitly directed against them rather than to launch collateral attacks in subsequent criminal proceedings. As Lord Hoffmann put it, one must “challenge it or comply with it”. For the reasons developed below, constitutional challenges are not susceptible to exclusion by way of such statutory construction. But, as later explained, that does not mean that the prospects of success of a constitutional challenge in same person cases are likely to be any greater.”

20.  Chief Justice Cheung delivered a separate judgment holding that whether a collateral challenge may be mounted in a criminal court is a matter of statutory construction of the relevant legislation: “ultimately, the issue is one of statutory construction, depending on the context and purpose of the legislation, the wording used and other relevant considerations. … the legislature may have good reasons for so legislating in particular situations, and where that is the case, the court must construe the statutory provisions accordingly.” [18]

21.  Chief Justice Cheung also reiterated that statutory language should be construed in light of its context and purpose [19]:

“ The general principles on statutory interpretation are well established. As was summarised in HKSAR v Chan Chun Kit [20]:

10. The rules of statutory construction are well established. Words are construed in their context and purpose. They are given their natural and ordinary meaning with context and purpose to be considered alongside the expressed wording from the start, and not merely at some later stage when an ambiguity is thought to arise. A purposive and contextual interpretation does not mean that one can disregard the actual words used in a statute. Rather, the court is to ascertain the intention of the legislature as expressed in the language of the statute. As has been repeatedly pointed out, one cannot give a provision a meaning which the language of the statute, understood in the light of its context and purpose, cannot bear.

11. Context here is to be taken in its widest sense and includes other statutory provisions and the general law. The purpose of a statutory provision may be evident from the provision itself, the recommendation of a report such as that published by the Law Reform Commission, the explanatory memorandum to the relevant bill or a statement by the responsible official of the government in relation to that bill in the Legislative Council. It may also be relevant in any given case to look at the history of the provision concerned.”

22.  I have had taken the following matters into account in my determination of this matter:

(1)  The “same person” exception is applicable to the present case and provides a basis for excluding a collateral attack. The Notices were specifically directed at the Appellants who had clear and ample opportunity to challenge their legality. The Appellants were well aware of the consequence that they might be prosecuted for non-compliance with the requirement. They may always apply for judicial review against it. As a matter of fact, D3 filed an application for leave to apply for judicial review just before the deadline for compliance with the Notice served on him. I was informed at the hearing that the Appellants chose not to proceed with the application subsequently. Certainly this is not the case that the Appellants had had no opportunity to challenge the Notices until they were prosecuted.

(2)  The interests of national security have always been important proper issue that require serious consideration and addressing.

(3)  The IR is intended to provide an effective administrative procedure to facilitate implementation of the NSL, in particular Article 43(5). As such, the measures under Schedule 5 must be responsive and efficient. Article 43(5) provides:

“(5) requiring a political organisation of a foreign country or outside the mainland, Hong Kong, and Macao of the People’s Republic of China, or an agent of authorities or a political organisation of a foreign country or outside the mainland, Hong Kong, and Macao of the People’s Republic of China, to provide information;”

(4)  To put NSL43 into effect, the clear intent of the legislative body (in the case of IR, the Chief Executive, in conjunction with the Committee for Safeguarding National Security in the HKSAR) is to confer upon the CP wide powers to investigate into the offences endangering national security. In particular, in the case of territorial investigation, such powers must be given a wide ambit so as to give full use and effect to the same for the purposes of resolutely safeguarding national security and opposing external interference.

(5)  It cannot possibly be the legislative intent to have the underlying merits and / or information of the ongoing investigation requiring the CP / Secretary of Security which form the basis of the CP / Secretary of Security’s decision be examined in a criminal trial.

(6)  Taking into account the nature of the information in support of the Notice and the likelihood of confidential / privileged materials involved, it cannot possibly be the legislative intent to have the validity of the Notices determined by way of collateral challenging in a busy magistrates court.  It would be more appropriate to have the matter dealt with before the superior court by way of judicial review.

23.  For the above reasons, I conclude that upon the true construction of section 3 (3) of Schedule 5, the IR merely requires a Notice which appears to be valid on its face and has not been quashed by judicial review. The legality of the Notices is not an element of the offence that is open to challenge by way of a defence in the criminal proceedings.

Head 1

24.  By Head 1 Mr Dykes submits that the Magistrate erred in holding that the prosecution needed not to prove that HKA was a foreign agent within the definition at section 1 of Schedule 5 as an element of the offence, thereby failing to ascertain the legislative purpose that the CP can only serve a Notice on a body if it is in fact a foreign agent, and the obligation of its office-bearers to comply with the Notice arises only if the body is in fact a foreign agent.

25.  The Magistrate decided as a preliminary ruling relating to the elements of the offence that the Prosecution was not required to prove that the HKA was a foreign agent. Having identified the legislative intent of the IR was to provide an effective administrative procedure to facilitate the implementation of the NSL, in particular Article 43(5) NSL, he said [21]:

“31. I have the following observations:

(1) It is clear that measures taken under Sch. 5 are meant to be responsive and effective, which is the purpose of NSL 3.

(2) To set up a foreign agent or any associate with it is not an offence. There is no mandatory scheme or mechanism for setting up a foreign agent. It can even be as simple as registered as a company. As for an individual, there is also no requirement for registration.

(3) There is no mechanism or scheme for setting up a foreign agent, nor is there any list thereof.

(4) A foreign agent is inevitably associated with overseas connections. To seek information, assistance from foreign authorities is unavoidable but, that would also be delayed with unexpected difficulties and even be unfeasible under the current climate. The lawmakers were well aware of that situation and the difficulties.

(5) Sch. 5 measure is comparatively less stringent than Sch. 7 for reasons that:

(i) At a more peripheral stage.

(ii) Less severe on the maximum penalties upon violation.

(iii) More simplified in procedure.

32. From the above observations, I conclude that:

a) Lesser severity of the measure should be proportionate to lesser stringency of the threshold.

b) The overall purpose of Sch. 5 is an effective measure for prevention and investigation of matters relating to national security. To be effective, the measure must be responsive and efficient.

c) There is a deliberate silence on the threshold requirement for identification of a foreign agent; obviously the rule‑makers were minded to create some flexibility for the Commissioner to exercise his professional judgment at that juncture, regardless of the strict rules of evidence, the burden and standard required in a criminal trial.

d) Identifying the foreign agent is the entry to and also part and parcel of the long process of effective prevention and investigation. Looking into the background and the purpose of the promulgation coupled with the deliberate silence on the threshold requirement; it is clear that the lawmakers and the rule-makers were not intended to create the proof of foreign agent as a matter of fact be an element of the offence upon non-compliance.

e) Prevention and investigation is a state of surmise, the threshold must be relatively low, even not requiring prima facie proof.

33. I rule that as a matter of law:

(1) The concept of foreign agent is the conclusion of an administrative decision at that juncture, not an essential constituent element that the prosecution has to prove at the trial.

(2) The prosecution need not prove the subject organisation was as a matter of fact a foreign agent.”

26.  In this case the CP adopted the threshold of “ reasonable grounds to belief” [22] for identification of the target recipient, and said [23]:

“87. Having regard to the nature, purpose, necessities and to strike a balance between the measures and the rights concerned; the decision to adopt the threshold of “reasonable grounds to believe” can hardly be criticized.

88. With their backgrounds, political aims, activities and nexus with both locals and non-locals throughout the years, suffice to say is that “… the Commissioner of Police has reasonable grounds to believe that the ‘Hong Kong Alliance’ is a foreign agent’…”  was the correct approach.”

27.  It is to be noted that from the evidence before him, the “ HKA was set up in 1989 and had been carrying out non-stop political activities mainly circulating around the June 4 incident throughout the years. Most of their activities were nexus of interactions with local and non-local organizations and people.” 

28.  I agree with the Magistrates that a “foreign agent” is not an element of the offence that has to be proved by the Prosecution to the requisite standard. One cannot lose sight of the basic fact that the office is one of failing to comply with the Notice as required. Schedule 5 is a specific scheme directed against “Collusion with a foreign country or with extend elements to endanger national in relation to the HKSAR” [24], it cannot be the legislative intent to improve any requirement of criminal standard before the police can be allowed to take adjective measure stipulated in Schedule 5. To rule otherwise would be contrary to all the intend and purpose of the NSL.

29.  My view that the prosecution needs not prove the person or organization is as a fact a foreign agent is reinforced by the similar provision in section 2 of Schedule 5 which relates to the require of similar information from a foreign political organization or Taiwan political organization by way of a Notice. Obviously, it is unreasonable to require the CD to be able to prove as a fact to the criminal standard that the said organization is a foreign or Taiwan political organization before a Notice can be issued. Likewise, the same rationale should apply concerning the issue of the section 3 notice.

30.  For the above reasons I agree the Magistrate that the prosecution not required to prove as a matter of fact that HKA was a foreign agent.

Elements of the Offence

31.  In light of my ruling (1) it is not open to the defence to challenge the legality of the Notice; and (2) whether HKA was in fact a foreign agent is not an element of the offence. The elements of the offence under section 3(3)(b) of Schedule 5 to the IR should read:

(1)  The Notice was valid on its face;

(2)  The Notice was duly served on the Appellants;

(3)  The Appellants were office-bearers or person managing or assisting in the management of the HKA in Hong Kong; and

(4)  The Appellants failed to comply with the Notices without exercising due diligence and the failure was not for reasons be beyond their controls.

32.  The Respondent seeks to uphold the Magistrate’s ruling. It is submitted that in light of the context and purpose of the NSL and the IR, it would be illogical and absurd to require criminal proof as a fact that the HKA was in fact a foreign agent.

33.  The focus should be whether from the underlying informant the CP has the sufficient belief at the time that it was necessary to prevent or investigate offences endangering national security.

Head 2

34.  By Head 2 Mr Dykes complaints that the prosecution adduced no evaluable evidence to show that HKA had any form of relationship with any identifiable foreign government/political organization, or it carried on its activities for the benefit of any identifiable foreign government/political organization, as required by section 1(a) of Schedule 5. Mr Dykes further submits that A1’s evidence that HKA’s relationship with foreign organizations did not make it a foreign agent.

35.  Given my earlier rulings, the Appellants were precluded from raising a collateral attack on the legality of the Notices, and the HCA as a matter of fact was a foreign agent is not an element of the offence, I do not see how the matters complain could have any bearing on the safety of the Appellants’ convictions.

36.  As to A1’s evidence about the HKA’s relationship with foreign organizations, this matter has no relevance to any necessary element of the offence and is not an issue this Court is concerned with.

Head 3

37.  By this Head Mr Dkyes contends that the Magistrate erred in ruling that the Appellants could have a fair trial despite the redactions of Exhibits P19(1)  and P20(1). It is also alleged that the Magistrate erred in permitting PW1, the chief prosecution witness, to choose not to answer any question put to him by A1, thereby the Appellants did not have a fair trial.

38.  It is evident from the following passages throughout the course of the tria, the Magistrates had kept the disclosure and the development of the trial under review from time to time to ensure the fairness of the trial [25]:

“ Interest Immunity and Legal Professional Privilege

11. The prosecution claimed Public Interest Immunity (PII) mainly on the grounds that the disclosure would jeopardise the ongoing investigation.

12. The investigation report and the recommendations (see attachments [1] and [2]) were not solely targeted at HKA, but also related to ongoing investigation into other organizations and persons (the other targets).

13. I have gone through all materials including the supporting affirmation of the Chief Secretary. I followed the steps laid down in HKSAR v Nyab Amin . My ruling on PII was not final, I have monitored the developments throughout the trial and review when necessary to fit the best interest of the Defence.

14. The investigation is large-scale and still ongoing. National security is utmost importance to public interest. Leaking of secret information, such as identities, strategies and interim investigation results of others would definitely seriously jeopardise the ongoing investigation.

15. The key defence is the legality of the Notice, after the preliminary rulings, to prove as a matter of fact the subject organization was a foreign agent is not required.

16. I ordered a redaction on:

i. The identities of entities/person are subject to ongoing investigation;

ii. All acts, activities, roles and interim investigation results which could be reasonably be regarded as leading to the leaking of the identities;

iii. All information relating to ongoing investigation, but not related to HKA and the Defendants;

in order to minimize the risk of any sidetrack strategy leading to reasonably guessing as to the identities of the targets; especially the exact amount or details of monetary transactions. After balancing, I deployed some safeguards, only to disclose the figures in number of digits.

17. The focus is on the factual nexus involvement leading to the triggering of the measure rather than the identities of others. I do not see the non-disclosure of materials, other than which related to HKA and the Defendants would undermine a fair trial.

18. The PII is based on the said direction, I came to the view that the anonymity with limited disclosure of some factual nexus be sufficient for purpose of conducting the defence case and ensuring a fair trial. I am satisfied there is no possible detriment or disadvantage of any kind or degree to the Defence.

19. As to the legal advice given by the Department of Justice, it is protected by Legal Professional Privilege.”

39.  On the request of the Appellants, I had some gone through the unredacted PII materials to consider whether the PII claim was correctly maintained by the prosecution. Suffice to say that having read the materials, I am of the view that they were properly redacted and their non-disclosure would not have caused any unfairness to the Appellants.

40.  I have had the advantage of checking the matters PW1 declined to answer against the information obtained from the unredacted materials. It is also evident from the transcript that the Magistrate had diligently engaged in the proceedings to facilitate A1 in obtaining the information she sought to obtain provided it was disclosable. I am satisfied that the fairness of the trial was not prejudiced by PW1’s failure to answer questions covered by PII.

Head 4

41.  By this Head Mr Dykes raises issue with the information to be sought under the Notices. All of those matters had either been raised before and considered by the Magistrate at trial or in the earlier part of this judgment:

(1)  Legality of the Notices – already dealt with.

(2)  Notices being ultra virus – information sought placed impossible burdens on the Appellants, should not included documents.

42.  I agree with the analysis and the rulings of the Magistrate on the aforesaid matters [26]:

“Use of wordings

97. “Information” is a term with wide coverage of meanings, which includes all sort of facts or details about a situation, person and event.

98. According to the Notice:

“To provide the Commissioner with the following information in writing, together with relevant supporting documents, …”

99. Under the interpretation section of the Personal Data (Privacy) Ordinance states:

“data（資料）means any representation of information (including an expression of opinion) in any document, and includes a personal identifier,”

100. “in writing” is the means of transmission of information, “supporting documents” is additional information requiring for the purpose of verification/corroboration. Personal data is a type of information contains personal details.

101. “Investigation” is a broad description of the exercise, including to retrieve information and verification of its correctness.

102. The enabling law require the information is NSL 42(5):

“requiring a … to provide information;”

Suffice it to say that NSL 42(5) embraces Sch. 5 s3(1) and the Personal Data (Privacy) Ordinance. I cannot see the information required is anything would go beyond the perimeter of NSL 42(5) and Sch. 5.

Retrospective

103. In the present case, there are two aspects to explore:

(1) At the date of the offence;

(2) The calling for information of events took place before the promulgation of NSL.

104. The present charge is non-compliance of the Notice served on 25 August 2021; there is no room for argument on retrospective issue.

105. It has been suggested that some of the information required was dated before the promulgation of NSL and some even back to 1989 when it was a time of a different regime.

106. The concept of national security is not just limited to an outbreak at a particular point of time but instead is, as can usually be found in most of cases, a continuation of series of acts with accumulative and generative aim to an ultimate end, be it a part of the adventure under the same or another different regime. In this case, the claim for retrospective limitation is invalid.

Alternatives

107. Sch. 5 is intended for prevention and investigation. Hence no matter the information required was obtained by direct approach or indirect research from their yearbooks and pamphlets. The more direct must be better; at least to minimize the risk of delay and omission.

108. It would be unrealistic to expect the Police first to obtain a full collection of yearbooks and pamphlets, then approach the target under investigation for its assistance in verification as to correctness and completeness at its discretion.

109. Sch. 1 confers on Magistrate the power upon application, to issue search warrant to enter (to use reasonable force if necessary), to search, examine, seize and can detain anyone found therein until the conclusion of the search.

110. Sch. 7 is about an ex-parte application by the Secretary for Justice to a judge of the Court of First Instance for a Production Order. The maximum penalty is one year imprisonment and a fine of $100,000, which is double the imprisonment in Sch. 5, upon violation.

111. From the above information, suffice to say the Sch. 5 measure is the mildest of all.

Ulterior motive

112. Although the police had initiated another proceedings against HKA, striking off HKA from the Companies Registry is under a different mechanism and criteria. Any omission from mentioning foreign agent is nothing odd or skeptical which should lead to any reasonable doubt on the genuineness of the Sch. 5 measure taken before me nor was there any ulterior motive behind.

113. I am satisfied Superintendent Hung held an honest belief in the truthfulness of the investigation information and he acted bona fide on his analysis.

Oppression

114. The assessment of oppression is not merely on theoretical concept; it must be practical by looking into the whole picture, including the capabilities, resources and the conduct of the recipient.

115. The requirement of large amount of information, some even aged, within 14 days, sounded tough on the face of it, but there are some additional features of this case:

(1) A liaison contact point was provided in the Notice, which could form a channel for some constructive and potential relief if necessary;

(2) The high-profile press conference and the open letter, was a clear message of total refusal;

(3) That letter clearly stated that the refusal was due to some legal issues involved, which shows the recipients had considered all the information required;

(4) None of the required information was provided in the end.

116. I have the following observations:

(1) Most of the information required was not that aged, only back from 2014;

(2) Some of the information required is actually the information that needs to be maintained. Examples are:

(i) accounting records and the supporting documents for years for spot check by the Inland Revenue;

(ii) the tax return and the provident fund documents with personal details of all the employees;

(3) D1 offered an explanation to the Court about the details of some of the requested information which was supposed could have been given to the Police at that time. From what can be seen, it was not that difficult to retrieve the required information;

(4) No constructive actual attempt had been made for any retrieval, not even on the easy ones.

117. Based on the above, it is difficult to justify the significance of hardship was in any sense compromised when the Defendants had provided none, not even some were not that hard to be accessed. There is no room for any claims of oppression.”

Conclusion

43.  On the elements of the offence I am satisfied that there is ample evidence to support the convictions of the Appellants, and there is nothing to render the convictions unsafe or unsatisfactory. Their appeals against conviction are dismissed accordingly.

Reasons for Sentence

44.  In sentencing the Appellants, the Magistrate gave the following reasons [27]:

“8. This case is the first under the new law, there is no legal precedent on sentencing.

9. Being a foreign agent is not a criminal offence. In this case, the offence is failure to comply with the Notice, thus sentence is working on this basis.

10. National security is cardinal importance to public interest and the whole nation. The law must ensure safeguarding national security is preserved. Sentencing for offence relating to national security must reflect the law’s determination to maintain national security and send a clear message to the society that the law does not condone any violation. There is a need to impose a sentence that is punitive and sufficiently deterrent. In general, an immediate custodial sentence is inevitable.

11. The measure under Schedule 5 is intended for prevention and investigation of an offence endangering national security. The information required including information of a wide range of nexus of interactions and monetary flows. Information is the core of the measure, any obstruction would defeat the whole purpose.

12. There was premeditation to show their dogged determination of non-compliance. D1, D2, D5 and others were acting in concert, they had discussions, held a high-profile press conference and presented the open letter to the Commissioner.

13. The significance of the case is the legal arguments on a variety of subjects. D2 and D5 did not give evidence nor did they call witnesses that could only make little contribution to the improvement of the case, hence that is not a significant mitigating factor.

14. Having considered the whole matter and each defendant’s case separately, I adopt the same starting point at four and a half months.

15. I do not see there is justification for any reduction.

16. I sentence each Defendant to four and a half months’ imprisonment.”

Appeal against Sentence

45.  Mr Dykes summits that the sentence of 4½ months’ imprisonment imposed on each of the Appellant is manifestly excessive for the following reasons:

(1)  The Appellants had reasonable and honest belief the HKA was not a foreign agent.

(2)  They never suggested foreign agents should refuse to comply with the Notice.

(3)  Defence simply put the prosecution to proof.

(4)  No premeditation.

Consideration

46.  The maximum sentence for the present offence is a fine of $100,000 and 2 years’ imprisonment. The conviction of the Appellants is the first case of its kind.

47.  I agree that immediate custodial sentence is inevitable for deterrence effect. In this case the Appellants were clearly determined from the outset not to comply with the requirement of the Notices. They were also working in concert in that they held a high-profile press conference and presented the open letter to the CP.

48.  Taking into account all the circumstances of the offence, I consider that the 4½ months’ starting point adopted by the Magistrate is neither wrong in principle nor manifestly excessive.

49.  The Appellants’ appeals against sentence are dismissed accordingly.