HKSAR v. CHOI HOI MING

HCCP 45/2021

[2021] HKCFI 404

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) CASE NO 45 OF 2021

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BETWEEN

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REASONS FOR RULING

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Introduction

1.  Mr Choi Hoi Ming made an application to review of the refusal by Mr David Cheung Chi Wai, sitting as a Permanent Magistrate sitting at the Kwun Tong Magistracy to grant bail to Mr Choi.  Mr Choi is hereafter referred to as “the Applicant”.  The learned Magistrate refused to grant the Applicant bail on 18 January 2021.  The learned Magistrate did so on the grounds that he had substantial grounds for believing that the Applicant would fail to surrender to custody as the Court may appoint.  The proceedings against the Applicant were adjourned to 29 March 2021.

2.  The review is brought pursuant to section 9I of the Criminal Procedure Ordinance, Cap. 221.  The matter came before me on 4 February 2021 on that review.  The Applicant was represented by Ms Catherine KK Wong, Barrister at Law, and the Prosecution was represented by Ms Stella WS Lo, Public Prosecutor.  At the conclusion of the review, I ordered that bail be refused and the Applicant was remanded in jail custody.  The ground of my decision was that I considered that there were substantial grounds for believing that the Applicant would fail to surrender to custody as the Court may appoint.  At the conclusion of the hearing are indicated to the parties that I would publish reasons for my decision in due course.

3.  These are my reasons.

Charges

4.  The charges levelled against the Applicant are:

(1) Conspiracy to wound with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212 and sections 159A and 159C of the Crimes Ordinance, Cap. 200.

(2) Possession of child pornography, contrary to section 3(3) of the Prevention of Child Pornography Ordinance, Cap. 579.

The 2^nd charge is, I understand, to be dealt with summarily before a magistrate.  That has been adjourned to 16 February 2021 to mention. The 1^st charge, being an indictable offence, is to be dealt with by way of committal proceedings and, if committed, tried before a jury in the High Court.

Procedural history

5.  The Applicant was arrested on 21 April 2020.  He was brought before a Magistrate on 23 April 2020.  On that date, bail was refused. Following that hearing, there were a series of hearings in relation to charge 1 culminating in the hearing before Mr David Cheung Chi Wai on 18 January 2021.

Basic principles

6.  The basic principles which govern the decision to grant or to refuse bail are well known. Section 9D(1) of the Criminal Procedure Ordinance provides in part that “a court shall order an accused person to be admitted to bail…”.  Section 9D(1) says that this principle is subject to section 9D and to section 9G of the Ordinance.  However, the basic principle articulated in section 9D(1) is the starting point for analysis.  That provision reflects the common law and also reflects Article 87 of the Basic Law.  Article 87 provides:

“In criminal or civil proceedings {xe “Courts: rights of litigants”} in the Hong Kong Special Administrative Region, the principles previously applied in Hong Kong and the rights previously enjoyed by parties to proceedings shall be maintained.”

Further, Article 9(1) and (3) of the International Covenant on Civil and Political Rights (“ICCPR”) is also critical to this issue.  Article 9(1) provides:

“1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”

7.  The particular application to the right of liberty and security of person in relation to the issue of bail is governed by Article 9(3) of the ICCPR which is as follows:

“3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.”

8.  The provisions of the ICCPR are incorporated by reference into the Basic Law by Article 39 of the Basic Law.  For completeness, Article 9 of the ICCPR is in the same terms as Article 5 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

9.  Section 9D of the Criminal Procedure Ordinance reflects the fundamental principle that any person charged with a criminal offence is presumed to be innocent until proven guilty.

10.  Section 9D(1) is expressly made subject to that section and section 9G.  The relevant provisions of section 9D and other provisions provide that the release on bail of any person may be subject to conditions.  Section 9G(2) then sets out a wide range of circumstances which might permit a Court to refuse bail.  However the threshold for permitting a Court to refuse bail is provided within section 9G(1) which requires that before a Court refuses bail there are substantial grounds for believing that there are proper grounds for refusing bail.  Section 9G(1) provides:

“(1)  The court need not admit an accused person to bail if it appears to the court that there are substantial grounds for believing, whether or not an admission were to be subject to conditions under section 9D(2), that the accused person would—

(a) fail to surrender to custody as the court may appoint; or

(b) commit an offence while on bail; or

(c) interfere with a witness or pervert or obstruct the course of justice.”

The circumstances identified in section 9G(2) are as follows:

“(2) The court in forming an opinion under subsection (1) may have regard to—

(a) the nature and seriousness of the alleged offence and, in the event of conviction, the manner in which the accused person is likely to be dealt with;

(b) the behaviour, demeanour and conduct of the accused person;

(c) the background, associations, employment, occupation, home environment, community ties and financial position of the accused person;

(d) the health, physical and mental condition and age of the accused person;

(e) the history of any previous admissions to bail of the accused person;

(f) the character, antecedents and previous convictions, if any, of the accused person;

(g) the nature and weight of the evidence of the commission of the alleged offence by the accused person;

(h) any other thing that appears to the court to be relevant.”

11.  As will be seen, section 9G(2) articulates a wide set of circumstances and, in any event the width of these provisions is demonstrated by section 9G(2)(h): “any other thing that appears to the court to be relevant”.  For the purpose of determining if, by reference to section 9G(1) there are substantial grounds for believing that one of the three events mentioned in section 9G(1) might occur, section 9G(2) entitles the Court to “have regard” to these factors and the existence of circumstances such as those mentioned in section 9G(2)(a) a serious offence or the manner in which a such person might be dealt with for that offence “in the event that that such an offence is proved”.  That a court comes to such as conclusion does not, of itself, mandate the refusal of bail.  What it does, along with the other parts of the itemised list in that provision is to provide a framework for analysis of the more fundamental issue: whether the refusal of bail is appropriate.  That analysis is plainly to be considered along with the presumption of innocence.  That gives rise to other factors such as how long a person if refused bail might be in custody pending the resolution of the charges that such person faces.  The underlying rationale of that is that if, for example, a person was detained for a period of time and then acquitted, that acquitted person has been deprived of their liberty for that period.  That there might be compensation in some circumstances is, within limits, a good thing, but, may in any event, be cold comfort.

12.  In short, the determination of whether to refuse a person bail involves a complex balancing of competing issues and values.  Almost of necessity, that resolution may be imperfect, but it is plainly the duty of a Court contemplating the refusal to grant bail to minimise the imperfection.  That challenge is magnified by the reality that in many cases there are competing versions of the factual matrix that a Court must consider in order to make that determination.

13.  The position was summarised in HKSAR v Vu Thang Duong [2015] 2 HKLRD 502 where Zervos J observed:[1]

“16. The relevant provisions allow the court to take into account a range of relevant matters when deciding whether or not to grant bail. The presumption of bail can be rebutted by the nature of the offence, the risk of danger to the public, or the likelihood that the trial could be affected by the defendant absconding or influencing a witness. An unreasonable delay in custody, in the particular circumstances of the case, may be a factor in favour of bail. Of course, such a factor would be taken into account together with all other relevant factors in deciding whether or not to grant bail.”

Facts of the case

14.  The starting point for analysis in this case is the charges levelled against the Applicant.  The charges are:

(1) Conspiracy to wound with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212 and sections 159A and 159C of the Crimes Ordinance, Cap. 200. The present draft of the charge levelled against the Applicant is that on 8 December 2019 in Hong Kong, he conspired with 6 other persons named in the charge sheet and other unknown persons to unlawfully and maliciously wound Hong Kong Police Officers, with intent to do grievous bodily harm to the said Hong Kong Police Officers.

(2) Possession of child pornography, contrary to section 3(3) of the Prevention of Child Pornography Ordinance, Cap. 579.  This charge alleges that on 21 April 2020 at a place in Sau Mau Ping Estate, Sau Mau Ping, the Applicant was in possession of child pornography, namely approximately 150 photographs and 7 videos, and the Applicant is not the only person pornographically depicted in the child pornography.

15.  I was informed by counsel appearing for the Prosecution at the hearing of the application to review the bail decision that the charge of possession of child pornography would be dealt with separately to the charge of conspiracy to wound with intent.  Whilst, on any view, such a charge given the allegations could be viewed as a serious one, any consideration of whether or not bail is appropriate on this review must proceed without a consideration of this quite separate charge.  I intend to take no account of it at all in my determination of the review.

16.  At present, the charge of conspiracy to wound with intent is one of a number of charges that the Prosecution intends to level against, amongst others, the Applicant in this review.  On the charge sheet which is Annexure II to the written submissions made by counsel for the Prosecution, there are 7 other accused persons, 6 of whom are alleged to be co-conspirators in the conspiracy to wound with intent. That charge is Count 1 on the proposed charge sheet, but it is important to note two things about that proposed charge sheet.  The first is that the conspiracy to wound with intent count is the only charge levelled against the Applicant in the present review. The second is that Counts 2-6 on that charge sheet allege serious offences involving firearms against the other 7 accused.  All of the firearms offences with one exception are offences against the Firearms and Ammunition Ordinance, Cap. 238, except one which is a charge of shooting with intent, contrary to section 17(b) of the Offences against the Person Ordinance, Cap. 212.  Each but one of the charges involving firearms allege an offence on a different date to the conspiracy to wound with intent charge and alleged offences at different locations.  The one exception in terms of similar dates is the 2^nd count which is a charge against the 2^nd Accused on the charge sheet.

17.  I was informed, and I accept, that at the moment the Prosecution is undertaking the process of consolidating the various charges into the proposed charge sheet.

18.  I was also informed, and accept, that is the intention of the Prosecution to bring these charges to the High Court and try the Applicant on the indictment.  On the assumption that the Applicant is committed and on the assumption that the indictment thus drawn reflects the proposed charges for committal and the charge sheet presently drafted, I could readily foresee an application to sever the conspiracy to wound with intent from the other charges on the indictment.  I cannot foretell and it is inappropriate for me to predict whether that course would be taken and whether in the event that it is taken that a judge of this Court would order severance. That is for another time and another place, but the current shape of the charge sheet is relevant to the determination I have made in a number of ways:

(1) One of the critical considerations in my decision is the time that it might take for this case to be brought to the High Court for trial (assuming committal).  If there are a multitude of counts on the indictment, given the pressures on this Court to bring indictments to trial and resolution, there may be additional delays, if the firearms counts are on the same indictment as the wounding with intent count because it might take longer to find a suitable date for trial.

(2) There may be delays in consolidating the proceedings prior to committal, if it is intended to include each of the charges and the current charge sheet.

(3) It should be made plain that the firearms allegations against the other accused, including the allegations against the co-accused in the conspiracy to wound with intent count formed no part of my determination of the application for review of bail.

Case for the Prosecution

19.  In essence, the Prosecution objects to the grant of bail upon the basis that the Applicant, if on bail, would not attend court when called upon to do so because:

(1) the offences are in their nature serious;

(2) the evidence in support of the offence is - including a full confession from the Applicant - is strong; and

(3) 3 of the alleged co-conspirators have already absconded.

20.  I have already indicated that I do not propose to take into account in any way the allegations of child pornography made against the Applicant.  I also must make the point that the fact that 3 of the alleged co-conspirators have already absconded, is not relevant to my determination.  I do not know anything about the circumstances of the 3 persons who are said to have absconded and I do not know what charges they might face or the strength of the evidence against them. Further, I proceed upon the basis that the Applicant is well capable of making up his own mind about his conduct in the event that he was granted bail. Further, no doubt given the highly competent representation that the Applicant has, he already has or will be informed as the consequence of jumping bail.

21.  The Applicant is alleged to be one of a number of persons who formulated a plot to kill police officers with explosives on a section of Hennessey Road on 8 December 2019.  There was scheduled to be a public procession on that day.  The arrest of persons alleged to be co-conspirators of the Applicant brought the conspiracy to an end.  The Applicant was not arrested on that day.  Indeed, he was not arrested until 21 April 2020.

22.  The case for the Prosecution is that prior to 8 December, the 2nd Accused (Ng Chi Hung) had conversations by the communication medium “Telegram” with, amongst others the Applicant and the 8^th Accused (Lai Chun Pong) about the making of detonators.  The Prosecution alleges that the 2^nd and 8^th Accused had tested detonators on a number of occasions. The communications to which reference has been made were found on the mobile phone found in the possession of the 8^th Accused.  There were communications between them and other alleged co-conspirators consistent with a conspiracy to construct a bomb (or bombs) and to detonate that bomb (or those bombs) on 8 December 2019.

23.  On 9 December 2019, the police found 2 devices which they characterised as Improvised Explosive Devices or IEDs at Wah Yan College HK.  The Prosecution case is that expert evidence will demonstrate that each of the IEDs found there were capable of injuring persons within a 400 m radius of the explosion.  The IEDs were packed with nails.  I will return to the IEDs found at this College in a moment.

24.  The Applicant is the 5th Accused on the current charge sheet. He was arrested on 21 April 2020.  He was arrested at his home and a number of electronic parts were found at his home.  The Applicant was interviewed under caution.  The interview was video recorded.  I should mention at this stage that counsel for the Applicant, Ms Wong, contended that the voluntariness and, thus, the admissibility of the interview was challenged.  In the interview, the Applicant admitted that he had communicated with the 2^nd and the 8^th Accused, who had consulted him as to how to make a detonator based on an old Nokia 3310 mobile phone.  The Applicant has knowledge of electronics and he advised them how to make such a detonator.  The case for the Prosecution is that the 2^nd Accused and the 8^th Accused wanted to make a bomb, the Prosecution alleged that the Applicant had drawn a circuit diagram for the 2^nd and 8^th Accused and went so far as to suggest using a MOSFET semiconductor rather than a relay, using a chromium or nickel heating element and advise them not to use USB welding.  He told the police in the video recorded interview that the circuit diagram he provided was modified by him to make it simpler than the normal ones that could be found online.  He was shown photographs of the 2 IEDs found at the College and admitted that they were in theory based on the circuit diagram he had drawn because all 3 elements of that diagram (the mobile phone, the relay and the batteries) were present.  Further, the Applicant was seen on the video recorded interview to draw a diagram at the request of the police as being the diagram he had previously sent to the 2^nd and 8^th Accused.

25.  The case for the Prosecution is that a comparison of the circuit diagram provided by the Applicant was capable of creating an IED capable of being activated by a mobile phone; the components found at the Applicant’s home were also suitable for building such a device, and the batteries found there were of the type that the Applicant had described in his video recorded interview.  The police expert compared the circuit diagram drawn by the Applicant and his description of it in the video recorded interview and the circuits of the IEDs found at the College.  The effect of the opinion was that they are similar but not identical, and the relays were a different make and model compared to the relay modules found in the home of the Applicant when he was arrested.

26.  In addition, the case of the Prosecution is that the communication by the “Telegram” medium between the Applicant and the 8^th Accused reveals that the Applicant offered a circuit diagram with some materials for the 8^th Accused to distribute later.  Further, those communications are said to reveal that the Applicant advised the 8^th Accused on suitable electronic components to use and he had procured electronic components and had indicated that he was prepared to go to Shenzhen in the Mainland to purchase components and that he would make a detonator himself.  Also in the communications found by the police the 8^th Accused had asked the Applicant for help because they had “the same target”.

27.  An examination of the mobile phone of the Applicant revealed that on it was a circuit diagram, which had the same working principle as the circuit diagram drawn by the Applicant in the video recorded interviews and worked on the same principle as the circuitry at the 2 IEDs found at the College.

28.  Ms Wong, counsel for the Applicant makes the point that, in the course of the video recorded interview, the Applicant said words to the effect that he did not mean what he said in his communications with the 8^th Accused.

Contentions on the part of the Applicant

29.  In the written and oral submissions of Ms Wong, counsel for the Applicant, it was contended that:

(1) the voluntariness of the alleged confessions relied upon by the Prosecution will be challenged;

(2) there is no direct evidence of any conspiracy involving the Applicant with any other defendants or persons unknown to harm any police officers, let alone any intent to do grievous bodily harm;

(3) the circuit diagram drawn by the Applicant is not the same as the IEDs found at the College; and

(4) only electronic devices were found at the home of the Applicant.

In this regard, I interpret this submission (4) as meaning that no explosive substances were found at his home.

Ms Wong makes the point that the digital evidence and online correspondence lifted from the mobile phones of other defendants would be subject to the application of the co-conspirator’s rule.  She contended that such evidence may not be used against the Applicant.

30.  Ms Wong contends that there that there was no evidence pointing to any intention on the part of the Applicant to kill police officers. She argues that the only “Telegram” conversations that were found which allegedly involved the Applicant merely mentioned circuit diagrams and the word detonator, but there is no mention of any police officers nor the intention to harm any people.

31.  Ms Wong argues that the Applicant is:

(1) a person of clear record;

(2) a person who has no previous record of absconding on bail;

(3) a person who has very close family ties with Hong Kong.  His parents are permanent residents who have been working and living in Hong Kong and the Applicant been living with them; and

(4) neither the family nor the Applicant have strong financial resources which carries with it the implication that they would not be able to finance some form of “escape” from Hong Kong.

32.  Ms Wong told me that the Applicant is now 21 years of age and was 20 years of age at the time of his arrest.  Although he was born in Mainland China, he has lived in Hong Kong since 2003.  On any calculation that is the vast majority of his life.

33.  I was told by Ms Wong that the Applicant was working as a part-time warehouse assistant and earned approximately $577 a day in this regard.  I was told that he has no triad background and is not a user of dangerous drugs.  She said that at the time of his arrest, the Applicant was studying towards a Higher Diploma in mechanical engineering.  Ms Wong also made the point that if bail was refused on this occasion, there would be a risk that the Applicant would be in custody for a very long time before the resolution of the charges levelled against him.  She contended that there was minimal risk of the Applicant reoffending.

34.  Ms Wong advanced the proposition that the Applicant wanted bail, so he could resume his studies.  She said that he was prepared to abide by stringent terms of bail which are outlined in her written submissions.

Evaluation

35.  On any view, the charge levelled against the Applicant is very serious.  The Prosecution allege a conspiracy to wound by inflicting grievous bodily harm on police officers through the explosion of a bomb.  Whether the intended victims were police officers or simply members of the Hong Kong community (or a combination of the two), this is capable of being viewed as a very serious matter.

36.  The evidence against the Applicant is capable of founding the charge levelled against him and even if it was the case that he did not specifically contemplate the injury (including grievous injury) to police officers, the evidence is certainly capable of supporting the conclusion that he was a party to the production of an IED (or IEDs) to be detonated by remote control.  I consider that it is at least a reasonable inference that he must have contemplated that he was in an enterprise to build a bomb to be detonated in a public place placing at risk members of the community to injury or death.

37.  I have not actually seen a transcript of the video recorded interview.  I was not asked to view it and I rely on the summary in the Prosecution written submission.  I feel it is appropriate to do so, because the accuracy was not challenged by Ms Wong, except to say that there was an omission by the Prosecution from that summary: that the Applicant asserted in the video recorded interview that he did not really mean what he said to the 8th Accused.

38.  My understanding of the Prosecution case against the Applicant is that his part in the conspiracy was to provide technical advice as to the remote detonation of the IED.  There appears to be no suggestion whatever that he was to construct the IED itself.  My understanding is derived from a review of the description of the evidence offered by the Prosecution, which includes a summary of the video recorded interview and extracts from the “Telegram” communications to which the Applicant was a party.

39.  It seems to me that a conspiracy to fabricate an IED (or IEDs) is capable of being established on the Prosecution case.  It is unlikely that the Applicant knew all or most of the co-conspirators.  Nevertheless, the inference is open that he conspired with the 8^th Accused and further from the nature of the communications between himself and the 8^th Accused, he appreciated that there were other conspirators.  There appears to be no direct evidence that he specifically knew that the IED (or IEDs) were specifically to be used to injure police officers.  That is capable of being inferred from the circumstances.  Certainly, the context suggested that he was well aware he was giving advice on the fabrication of an IED (or IEDs) and must have appreciated that if it had exploded, injury would have been caused to members of the Hong Kong community and, if police officers were present, injuries to police officers.  The context of public order events in December 2019 might be relevant in that regard.  In my view, there are far more important issues to be considered than the detail of the averment in the charge which is, at the moment, specifically limited to police officers.  The broader and more important issue is the explosion of an IED in public in Hong Kong.

40.  I disagree with Ms Wong as to the application of the co-conspirators rule.  The rule provides of the acts and declarations of persons other than the Applicant in the furtherance of the conspiracy are admissible against the accused, if the existence of that conspiracy is separately proved.  It is neither necessary nor appropriate for me to go into the finer detail of how that rule might apply in the present circumstances, but it is appropriate to say that it is relatively easy to foresee how the rule might operate to the detriment of the Applicant in this case.

41.  The issue of whether the Applicant was engaged in an active conspiracy with at least the 8^th Accused as opposed to just saying these words without meaning them is an issue for a properly-directed jury at the appropriate time.

42.  Taken as a whole, on the description of the evidence available against the Applicant given to me in these proceedings, the Prosecution are capable of proving a strong circumstantial case against the Applicant.  In the event that the Applicant was convicted of this conspiracy, he would face a substantial prison term.

43.  In the course of oral submissions, I did indicate that I was concerned with the potential amount of time that it might take to bring the charges against the Applicant to resolution.  There may well be circumstances that exist in the future (in my opinion, they do not exist at present), depending on the progress of the case which might justify a re-evaluation of whether the Applicant should be granted bail.  That time is not arrived and it would be inappropriate to express a view as to how that might arrive.  I am sure that the Prosecution will keep firmly in its mind that it needs to bring a case such as this to resolution as soon as possible.

44.  In the course of submissions, the Prosecution said that there was a risk of the Applicant committing further offences while on bail.  The basis for that was that electronic devices were found in the home of the Applicant.  Whether or not at the time of his arrest, the Applicant was contemplating further assistance to the alleged co-conspirators was not explored during the hearing.  Further, I have to evaluate the risk of reoffending on the part of the Applicant by reference to the circumstances which presently apply.  In my judgement, those risks are minimal.

Conclusion

45.  In my judgement, despite the arguments so cogently advanced by Ms Wong on behalf of the Applicant, the combination of circumstances of this case compelled me to the conclusion that the charge is so serious and the evidence is suitably strong that there is a substantial risk that the Applicant would fail to surrender to custody as the Court may appoint.  For these reasons, I refused the application to review the decision of the learned Magistrate.