SECRETARY FOR JUSTICE v. CHENG TAT HUNG (鄭達鴻)

HCCP 110/2021

[2021] HKCFI 792

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO. 110 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.  It is argued on behalf of the Applicant that the participation of the Respondent in the Primaries was in order to strive for the majority in the Legislative Council (the “LegCo”) and use the veto power to press the HKSAR government to commit on the five demands, and ultimately to remove Carrie Lam from the office as Chief Executive.  The Respondent, when he attended the election public forum on the 29 June 2020, reiterated a similar desire. 

7.  After the Respondent won the Primaries, the Respondent submitted the LegCo nomination form but was subsequently officially disqualified on 30 July 2020 by the Returning Officer, who considered that the Respondent “expression in the video may be understood as calling for foreign interference in relation in the enactment of the National Security Law” when viewed together with the Joint Statement in May 2020.  Ms Yang submitted that taking all the materials into consideration, the Court cannot be satisfied that sufficient grounds exist for believing that the Respondent will not continue to commit acts endangering national security.

8.  Mr Pun SC submitted that the Respondent had strong ties to Hong Kong and on the 26 July 2020, in his letter to the Returning Officer, he told the returning officer that he would abide by the NSL.  And that the risk of the Respondent re-offending is low as he had quitted the party and politics altogether. Mr Pun SC also submitted that the Respondent had a short political career and he was a loner, and therefore had no influence whatsoever, nor had he been shown to be, as Anthea Pang J in HKSAR v Lai Chee Ying[6], a person who is “determined and resolute” and he is more like someone who is described as “merely drifting along and lacks such enthusiasm” and that being a loner, he may not “be as efficient and effective in carrying out the prohibited acts when compared with one having connections and means”.[7]

9.  Therefore, looking at all the materials before me, including counsel’s submissions, written and oral, and the background of the Respondent, I am of the view that the Respondent, if granted bail, that sufficient grounds exist for believing that the Respondent will not continue to commit acts endangering national security.  And therefore, I went on to consider the second threshold and I endorse the bail conditions of the learned Chief Magistrate, to ensure that the Applicant will submit to custody as the Court will appoint.

10.  So the application of the Applicant is refused.