SECRETARY FOR JUSTICE v. KWOK KA KI

HCCP 118/2021

[2021] HKCFI 862

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO. 118 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 submitted, that the Respondent not only participated in the press conference on the 25 March 2020[6] to support the Primaries, he also attended an election forum on 5 July 2020 and stated his views that he would use everything in his power to achieve the aims in the Primaries 35+.[7]  Subsequently, the Respondent was successful and he then submitted the Legislative Council (“LegCo”) nomination form for participating in the 2020 LegCo General Election on the 22 July 2020.

7.  Ms Yang pointed out that the Respondent was subsequently disqualified by the Returning Officer in a letter dated 30 July 2020[8] at paragraph 9 that the Respondent had also been soliciting for foreign sanctions against the HKSAR and its officials.  In Enclosure 9,  Ms Yang pointed out that the Respondent, apart from being a signatory of the letter to the United States Congress, urging them to pass the Hong Kong Human Rights and Democracy Act, also in March 2020 requested the United States Government to impose sanctions against the officials of the HKSAR Government for alleged involvement in “police brutality in violation of human rights”.  Thus, the Respondent was deemed to have been inviting interference from foreign government in relation to the HKSAR affairs.        

8.  Ms Yang therefore submitted that, having regard to Anthea Pang J’s judgment in HKSAR v Lai Chee Ying[9],  that in conducting “a predictive and evaluative exercise”, this Court must also take into account the fact that the Respondent, being determined and resolute, may be “more readily disposed to committing the prohibited acts than one who is merely drifting along and lacks such enthusiasm”. And given the Respondent’s strong political connection and long social activist history,  he cannot be said to have satisfied the first threshold. 

9.  Mr Choy SC on behalf of the Respondent pointed out that this Court should be slow to interfere with the learned Chief Magistrate’s decision.  Mr Choy SC also referred to the case of the Court of Final Appeal in HKSAR v Yip Kim Po[10] at paragraph 25, citing Lord Hoffmann’s observation in Piglowska v Piglowski[11] on the “due weight” that appellate courts will give when “approaching appeals against judge’s findings of fact”:

“The exigencies of daily courtroom life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case but also of a reserved judgment based upon notes, such as was given by the district judge. These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account.”

10.  Mr Choy SC pointed out that the learned Chief Magistrate having heard the detailed submissions from the Prosecution as to why bail should be refused, and submissions on behalf of the Respondent, that he made the decision to allow bail for the Respondent.  Thus Mr Choy SC submitted that unless the learned Chief Magistrate’s decision to grant bail was “plainly wrong”, there should be no reason for this Court to interfere with the learned Chief Magistrate’s decision. 

11.  Mr Choy SC submitted that the Respondent, in his years in politics that began in 2004, had a track record of service to the community and had a strong track record of voting in support of and working alongside the administration on various issues.  However, after the postponement of the LegCo election 2020, the Respondent no longer engaged in any activities that could be said to be related to the Primaries.  He subsequently devoted himself fully to his medical practice. 

12.  I have no doubt that the Respondent had over the years contributed his service for good to the community at large.  I also accept with great respect his record in LegCo as to his service to the community. However, I am tasked with the function, as Anthea Pang J said, of evaluating all the materials in “a predictive and evaluative exercise”, to determine if the Respondent can pass the first threshold as laid down by the Court of Final Appeal in HKSAR v Lai Chee Ying[12].

13.  In fulfilling the exercise, I do not have to consider whether the learned Chief Magistrate had made a mistake or was plainly wrong in his decision.  I have considered all the materials before me, submissions, both oral and written of counsel, and the bail conditions imposed by the learned Chief Magistrate, at the end of the day, I cannot say that “sufficient grounds exist for believing that the Respondent will not continue to commit acts endangering national security” if bail is granted to him. 

14.  So the application is allowed and the Respondent’s bail is revoked.