SECRETARY FOR JUSTICE v. OR YIU LAM RICKY

HCCP 119/2021

[2021] HKCFI 849

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO. 119 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 on behalf of the Applicant had pointed out that, the Respondent had joined the Primaries, and also attended the election forum for the New Territories East constituency.[6]  During this forum, the Respondent urged people to support the 35+ Primaries, especially “有抗爭意志嘅參選人”.  Ms Yang pointed out that the Respondent lost the Primaries and in furtherance of his alleged participation in this scheme, did not run for the election and did not stand in the election.        

7.  Mr Kwok on behalf of the Respondent pointed out that, the Respondent’s appearance in Video A and what he said, was moderate compared to others. Mr Kwok submitted that the “抗爭意志” is very different from calling for an indiscriminate ban of all financial budgets.  Furthermore, Mr Kwok pointed out that the Respondent had all along been a most dedicated District Councilor focusing on the social welfare of the neighborhood.  This was recognised in 2008 when he was awarded the Chief Executive’s Commendation for Community Service. Mr Kwok added that, the Respondent, in order to reassure the Court, will withdraw from all political activities, and even activities regarding social welfare.            

8.  Having considered all the materials before me, the written and oral submissions of both counsel, I have come to the conclusion that  sufficient grounds exist for believing that the Respondent “will not continue to commit acts endangering national security” if bail is granted to him.  So I found that the Respondent has successfully persuaded this Court over the first threshold.    

9.  As to the second threshold, under the Criminal Procedure Ordinance, Cap 221, Ms Yang had put forward the concern that the Respondent may re-offend or abscond.  However, as Mr Kwok said the Respondent has all along had a clear record and a positively good character, as can been seen from his social work as a District Councillor.  He is also aged 49 years old, he lives with his parents, he has a steady job and had been reporting to the Police Station without fail since the date of the arrest. 

10.  So having taken into account all that was said, I consider that the Respondent should be granted bail on the same terms as that ordered by the learned Chief Magistrate.

11.  So the application is refused.