HKSAR v. LEUNG KAI LOK

HCCP 539/2025

[2025] HKCFI 3407

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 539 OF 2025

(ON APPEAL FROM WKCC 3238 OF 2025)

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BETWEEN

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REASONS FOR DECISION

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Application

1.  This is an application for bail by the Applicant upon the Chief Magistrate’s[1] refusal of bail. The Applicant has been charged with 4 charges. The first charge is a count of doing with a seditious intention an act or acts that had a seditious intention contrary to section 24(1)(a)(i) of the Safeguarding National Security Ordinance. The remaining three charges are in relation to destroying or damaging property contrary to section 60[1] and section 63[2] of the Crimes Ordinance Cap. 200.

2.  I granted the Applicant’s bail at the end of the hearing on 31 July, saying that I would give my reasons in due course. This I now do.

The Respondents case against the Applicant

3.  In brief, the Respondents case is that on 3 days between 17 July and 21 July 2025 the Applicant scribbled seditious wordings inside three toilet cubicles inside office Tower 3 on the 11 floor of China Hong Kong City in Canton Road, whilst he was a part time worker in an office on the same floor.

4.  The Respondent submits the offending words amongst others were :

(a) “Liberate Hong Kong, Revolution of Our Times”

(b) “Bomb Lam Cheng to death”

(c) “Lam Cheng go to die”

(d) “Lee Ka Chiu go to die”

(e) “Bomb Lee Ka Chiu to death”

5.  The references to Lam Cheng and Lee Ka Chiu being our former Chief Executive and our present Chief Executive respectively.

6.  The Respondent opposes the Applicant’s bail as:

(a) the threshold under and NSL article 42(2) has not been met in that there are insufficient grounds for believing that the Applicant will not continue to commit acts endangering national security and

(b) there are substantial grounds for believing that the Applicant will fail to surrender to custody of the court as appointed and will commit further offences if bail is granted.

The prosecution case

7.  The prosecution case alleges that on the 17, 18, and 21 July 2025 the Applicant was caught on CCTV entering and leaving the male toilets on the 11 floor. On each of the days it is alleged the Applicant wrote the offending words on the walls of one cubicle. Each time before the Applicant entered the toilet, the walls of the cubicles were free of graffiti. After the Applicant left the toilet, the offensive words were found written on the walls in the cubicle. After the first two occasions when the staff of the property management company of China Hong Kong City saw the writings on the wall, a report was made to the police.

8.  On the first occasion, the 17 July whilst a staff member was actually using the toilet in another cubicle, he heard scribbling sounds in a nearby cubicle at about 1400 hours. After that he found the words written on the walls of the cubicle.

9.  On the third occasion on 21 July, a National Security Department police officer checked that no graffiti was on the walls of any of the cubicles (the words previously written had been removed). The Applicant was seen leaving his office and entered the toilet at 1048 hours. At 1050 hours the police officer heard scribbling sounds with a marker pen from the Applicant’s cubicle. After the Applicant left the cubicle the police officer saw offending words written on the wall inside the cubicle. The Applicant was immediately arrested. Under caution at the scene the Applicant admitted writing the words on all 3 days. A blue marker pen and a mobile phone were seized from the Applicant’s possession. A house search was conducted with the clothes worn by the Applicant on all 3 days, a desktop computer and external drive was seized.

10.  In a video recorded interview conducted with the Applicant he admitted the offences stating inter alia:-

(a) he wrote the words on the walls of the cubicles on the above three dates using the marker pen seized and identified himself in the CCTV screen captures;

(b) he had great hatred towards the Hong Kong Special Administrative Region Government;

(c) he wrote the words intending to bring others into hatred against the HKSARG;

(d) bombing the chief executive was intended to arouse discontent against government policies;

(e) the words liberate Hong Kong revolution of our times was intended to incite hatred against the HKSARG and

(f) he acted alone knowing his acts were in breach of the law.

Legal Principles

11.  The offence of Sedition is an offence endangering national security and is subject to the more stringent threshold under NSL Article 42(2) in consideration of bail: section 7 of the Safeguarding National Security Ordinance.

12.  Article 42(2) of the NSL provides that:-

“No bail shall be granted to a criminal suspect or defendant unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security.”

13.  The construction of Article 42(2) of the NSL was considered by the Court of Final Appeal in HKSAR v Lai Chee Ying (2021) 24 HKCFAR 33. The CFA set out in detail the background against which the NSL was promulgated in the HKSAR and how the provisions therein should be interpreted: see §§9-22. As enunciated in Lai Chee Ying, NSL Article 42(2) excludes the presumption in favour of bail in the first instance and a considerably more stringent threshold requirement was introduced. At paragraph 57 of the CFA judgment all bail decisions involve a risk assessment looking to the future.

14.  The first threshold is that the judge must first decide whether there are sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security. If, having taken into account all relevant material, the judge concludes that he or she does not have sufficient grounds for believing that the accused will not continue to commit acts endangering national security, bail must be refused.

15.  In applying Lai Chee Ying (CFA), Pang J (as Her Ladyship then was) in HKSAR v Lai Chee Ying HCCP 738/2020, [2021] HKCFI 448 pointed out that what the Court has to do is to carry out “a predictive and evaluative exercise” on all the available evidence before the court, which include matters which are not admissible as evidence.

16.  The second threshold is that if and only if the Court concludes that it does have such sufficient grounds, the Court should then proceed to consider all other matters relevant to the grant or refusal of bail applying the presumption in favour of bail. That is, only if the first threshold is satisfied, the Court will proceed to the considerations under the Criminal Procedural Ordinance, Cap. 221 (“CPO”).

The Respondents submissions

17.  Ms Elisa Cheng SPP (Ag.) for the Respondent submits that that the Court does not have sufficient grounds for believing that the Applicant will not continue to commit acts endangering national security and that bail should be refused on the cumulative effect of the following facts: -

18.  First, the words written in the toilet cubicles were clearly seditious. Not only were they intended to bring others into hatred, contempt or disaffection against the fundamental system of the state, the constitutional order, executive, legislative or judicial authority of the HKSAR, they were also intended to incite any other person to do violent act(s) in the HKSAR with clear reference to bombing with death intended as a consequence.

19.  Second, the Applicant fully admitted committing the offences on all three occasions and explained his intention under caution.

20.  Third, the Applicant continued to commit the offences on three consecutive business days during which he was working on the same floor, which indicated that he had a strong belief and tendency to commit national security offence, should opportunities arise.

21.  It is further submitted that even if the Court is satisfied that the first threshold under NSL Article 42(2) is passed, in any event, bail should not be granted on the ground under sections 9D and 9G of the CPO i.e. the Applicant's risk of absconding and/or committing offences whilst on bail is substantial.

22.  Ms Cheng submits the evidence against the Applicant is strong, including (1) he was caught red-handed near the scene having just committed the incident on 21 July having been overheard by the police officer; (2) he was found in possession of a blue marker pen and (3) he gave full and frank admissions under caution. In the likely event of a conviction, an immediate custodial sentence would be inevitable even at the Applicant's age. A person, knowing well the seriousness of the charges he is facing, and its dire consequence, may be incentivized to abscond from the jurisdiction.

23.  The Applicant has a strong, continued and persisted will to commit the offences, having committed three offences on three consecutive business days and therefore there is a risk that the Applicant will commit further offences whilst on bail.

24.  Thirdly, the refusal should be for the Applicant’s own protection. The Applicant has indicated his intention to seek immediate assistance from a psychiatrist. He should be detained in custody for his own protection: see section 9G(3)(a) of the CPO.

The Applicants submissions

25.  Ms Cyndi Ho counsel for the Applicant submits that the court may impose stringent bail conditions on the Applicant which aim at securing that the Applicant will not commit acts endangering national security if granted bail upon the multiple undertakings and bail conditions offered in the Applicant’s Notice of bail application.

26.  In relation to the facts, Ms Ho states which Ms Cheng does not dispute, the offending words were written in the toilets of an office tower which was generally only used by the office workers on the 11 floor. Access to the toilets required a passcode or access card. The toilets were therefore not open to the general public such as a toilet in a shopping mall.

27.  Ms Ho relies heavily on the fact the Applicant is an 18 year old Hong Kong permanent resident and is of clear record. He has this year on 16 July 2025 received his DSE results, although unable to gain direct admission to university he has been accepted into the Vocational Training Council to pursue a Higher Diploma in Digital Media. Prior to his arrest the Applicant was on a summer break and working part time as a clerk at a Consulate in China Hong Kong City waiting until his classes at VTC commences in September this year. The short time in custody has made the Applicant a young man with no prior criminal convictions and no history of police encounters, nor violence, fully aware of the seriousness of the charges. He has no political affiliations either locally or internationally.

28.  His school academic awards demonstrating his good character have been submitted. He holds a Grade 6 certification in piano.

29.  He has close ties with his parents with whom he lives. He is an only child. His father is a businessman who will turn 70 next month. The Applicant’s mother is a housewife and has dedicated her life to raising her son and managing the household. The arrest of the Applicant has deeply shaken them causing great concern for his well-being.

30.  The parents are willing to undertake that one of them will accompany the Applicant whenever he leaves home, closely monitoring his actions to ensure that he does not engage in any activities that could jeopardise national security. As neither parent is bound by fixed working hours, they are able to provide constant supervision at any time of day.

31.  It is submitted that although the Applicant has weak social skills and tends to be a more introverted person, he has a robust support network provided by this parents. Two letters dated 25 July 2025 were submitted one from the Applicant’s secondary school counselling officer and his secondary school social worker[2].

32.  In May and August 2021 the counselling officer had twice recommended the Applicant’s father to have the Applicant assessed at the Child and Adolescent Psychiatric Centre as she was of the view that the Applicants personal growth and social conditions required special attention. The father declined the Counselling Officer’s suggestion, concerned that labelling his son a “problem student” would adversely affect his development and academic progress.

33.  The secondary school’s Social Worker observed similar issues, noting that while the Applicant participated in the school’s induction program in Form 1, he exhibited reluctance to communicate with others. By Form 4, he was referred to a social skills training group aimed at enhancing his social abilities, which led to gradual improvement.

34.  As a background of the Applicant experiences, Ms Ho has informed the court that during the social unrest in 2019 and 2020 during form 2 and form 4 the proliferation of negative information regarding the government had impacted his mindset. The Applicant had previously engaged in disruptive behaviour, such as tearing up toilet paper in the school male restroom, which led to his teachers recommending a psychiatric assessment. The Applicant indicated that the recent incident was influenced by similar negative thoughts, leading to feelings of confusion and an inability to process his emotions effectively.

35.  Further, during the unrest in 2019 when the Applicant was 12 and 13 he had personally witnessed multiple incidents of violence, including large scale gatherings and riots where police deployed tear gas to disperse crowds. He experienced situations where protestors blocked roads, hindering his ability to return home with his family using any form of public transportation. Upon finally reaching home, he discovered that a man had been killed by a brick in the vicinity where he had been on the news.

36.  Additionally, the constant influx of news coverage and online information regarding these violent events overwhelmed the young Applicant making it difficult for him to process the myriad of distressing details. The prolonged period of social unrest, coupled with the subsequent COVID-19 pandemic, severely restricted his ability to engage in normal outdoor activities. For an extended time, he was required to attend online classes from home, resulting in minimal interactions with teachers and peers. This isolation may have significantly contributed to the challenges he faces in developing social skills.

37.  Ms Ho submits that the Video recorded interviews with the Applicant reveal that his discontent is directed towards certain Government policies, such as price increases with the hope that others might resonate with his views. He has no intention of harming any Government Officials or engaging in radical actions. It is submitted that he is merely affected by negative thoughts that he struggles to articulate, reflecting his ongoing social skills development challenges. However, this does not necessitate his detention. What the Applicant truly requires is professional support to help him express his opinions effectively, rather than confinement that would strip him of his freedom.

38.  The sole reason as fairly pointed out by the prosecution of the Chief Magistrate refusing the Applicant’s bail was he does not have sufficient grounds for believing that the Applicant will not continue to commit acts endangering national security.

39.  Ms Ho has submitted that given Applicant’s personal background this is extremely low and inherently unlikely. Applicant is not at risk to the wider Hong Kong Community.

40.  To demonstrate to the Court that the Applicant will not continue to engage in acts that endanger national security in respect of the “Sufficient Grounds Requirement”, The Applicant gives the following undertakings to the Court:-

(1) he shall immediately seek medical attention from Dr xxxx regarding his mental health after his release. A medical appointment has already been made, and Dr xxxx is prepared to see him on 12 August 2025 at 11 am;

(2) he shall refrain from making any statements with “seditious intention”, including writing any statements on walls or surfaces;

(3) he shall be accompanied by his father or mother whenever he goes out (both of his parents are willing to make the same Undertakings to the Court).

The assessment

41.  In making my assessment, I have taken into my consideration all the relevant matters before me, including such matters as the Applicant’s background, his age of 18 years, his clear record, his community ties, his enrolment in VTC and his relationship with his parents.

42.  When answering the “sufficient grounds” question, given the applicability of the general bail regime to the NSL, the judge should consider matters which might have a bearing on the accused’s likely conduct pending trial, such as possible bail conditions fashioned with a view to securing that the accused would not commit acts endangering national security if granted bail and the nature and seriousness of the national security offence charged. (See Lai Chee Ying above at paras. 57-63, 70(d)(i).)

43.  Taking into account all relevant material, the nature and seriousness of the national security offence of sedition, including the possible imposition of bail conditions I have sufficient grounds to believe that the accused would not continue to commit the offences of endangering national security. I have arrived at this view as the Applicant and his parents have given an undertaking that the Applicant will seek professional psychiatric assistance in enhancing his understanding, negative thoughts, confusion, social skills, and emotional issues. I have before me a letter from the doctor confirming an appointment has been made. The parents have given an undertaking that they will supervise the Applicant by closely monitoring him and accompanying him when he is out. With these conditions imposed I am satisfied that this will have a bearing on his conduct in not committing acts endangering national security if he is granted bail.

44.  I turn to the second threshold and have considered all the other matters relevant to the grant of or refusal of bail applying the presumption in favour of bail. Although the evidence is strong against the Applicant, I must consider if there are substantial grounds for believing that the Applicant would abscond, commit an offence if granted bail or should be remanded for his own protection. Given the Applicant’s strong family ties and his connection to Hong Kong and the undertakings given by the parents and himself, I have no grounds for believing that the Applicant will abscond, or that he will commit an offence if granted bail. I do not consider that the Applicant should be remanded for his own protection.

Conclusion

45.  The Applicant is granted bail subject to the following bail conditions :-

(1) Cash of HK$100,000.00;

(2) The Applicant’s father, xxxxxxxxxxxxxxxxx as a cash surety in the sum of HK$100,000.00;

(3) He is not to leave Hong Kong;

(4) He is to surrender all his travel documents, xxxxxxxxxxxx and xxxxxxxxxxxxxxxxxx, prior to release from custody;

(5) He is to reside at the address as is given;

(6) He is to obey a curfew between the hours of 10 pm and 7 am;

(7) He is to report to the xxxxxx Police Station between the hours of xxxx and xxxx every xxxxxxxxxxxxxxx;

(8) He is to inform xxxxx Police Station 24 hours prior to any change of residence;

(9) He is not to interfere directly or indirectly with any prosecution witnesses and

(10) He is prohibited from entering the China Hong Kong City in Tsim Sha Tsui.

46.  Upon the Applicants undertaking that:

(1) he shall immediately seek medical attention from Dr xxxx or any other doctor as advised regarding his mental health after his release at any time that the doctor(s) may appoint. (A medical appointment has already been made, and the Applicant shall consult Dr xxxx on xxxxxxxxx 2025 at xxxx or preferably at any earlier time but no later);

(2) he shall continue to seek medical attention regarding his mental health as and when required by the doctor(s);

(3) he shall refrain from making any statements with “seditious intention”, including writing any statements on walls or surfaces or on any social media;

(4) he shall be accompanied by his father or mother or both whenever he leaves his residence;

(5) When classes at VTC commence the Applicant shall be accompanied by a parent or both to the VTC and a parent or both are to collect the Applicant when his classes at VTC finish and

(6) He shall keep the prosecution updated on his medical appointments giving them the dates of appointments, his attendance and follow up appointments.