HKSAR v. FAN KWOK WAI GARY

HCCP 454/2021

[2022] HKCFI 1173

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO 454 OF 2021

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REASONS FOR DECISION

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1.  This is the Applicant’s second application for bail before this Court. His first application for bail on 7 September 2021 was refused as the Court was of the opinion that he would continue to commit acts endangering national security, therefore failed to overcome the first threshold of the test laid down by the CFA in the case of HKSAR v Lai Chee Ying[1].

Applicant’s submission

2.  Ms Ng on behalf of the Applicant, submitted that there had been a material change of circumstances since the refusal of bail on 7 September 2021, in that:

(1)  The health conditions of the Applicant’s parents and sister have deteriorated;

(2)  the procedural development in WKCC 813/2021 suggested that there will be a long delay before trial, and Ms Ng submitted that the earliest realistic trial date will be somewhere in mid-2023;

(3)  the Applicant has already severed all political affiliations and resigned from all public offices.  So objectively his political life has ended. 

Therefore, his main priority now is his family, and therefore, the possibility he will continue to commit acts endangering national security is virtually non-existent.

Respondent’s submission  

3.  Ms Fu for the Respondent, submitted that the purported change of circumstances, has no bearing on and would not undermine the soundness of the consideration of the first threshold as set down by the CFA in HKSAR v Lai Chee Ying, supra.     

4.  Ms Fu submitted that on the first occasion when the Applicant applied for bail, the Court had already considered the health conditions of the family, although it is not disputed that their health situation had deteriorated in the months since September 2021.

5.  She also submitted that the Prosecution had been ready for committal since September 2021.  However, the matter was adjourned pending translation of all the documents and certified translations. By 10 January 2022, all relevant translations had been served on the Defence, and the certified translations were served on 1 March 2022. 

6.  As can be seen from the case chronology submitted by the Respondent, the learned Chief Magistrate did explore the possibility on the 4 March 2022 to seta timetable for the Defendants to indicate their plea before the 5^th return day which would be 28 April 2022.  But this was opposed by the Defence, one of whom was the Applicant.  I am informed that as at the present moment, 11 Defendants had indicated their intention to plead guilty. 

7.  As far as this Applicant is concerned, Ms Fu pointed out that the Applicant still maintains his Patreon site actively and in spite of what Ms Ng maintained that it was only to put online the artistic works of the Applicant, Ms Fu pointed out that on 17 December 2021, there was a message put there by the Applicant which reads:

“捷克、南韓、台灣，走過獨裁威權時代，過渡至民主自由社會，要經過數十年的漫長歲月，希望香港不需要經歷這麼久的艱苦試練，才能到達花開的彼岸，現在黑暗隧道看不見盡頭，牆外朋友的問候鼓勵，給我堅持下去的勇氣…”

8.  Ms Fu submitted that the Applicant is still resolute and determined in continue to commit acts endangering national security if bail is granted. 

Discussion

9.  While I agree that the deteriorating familial circumstances of the Applicant had already been dealt with in the previous application, and does not of itself consist of a change in circumstances.  I am however, concerned about the long delay in the proceeding being brought to trial.  As was laid down in NSL 42(1), the article stipulates that:

“the law enforcement and judicial authorities of the Region shall ensure that cases concerning offence endangering national security are handled in a fair and timely manner”

10.  The CFA observed in paragraph 34 of HKSAR v NG Hau Yi Sidney[2]:

“34. With the full cooperation of the parties, magistrates and judges should proactively seek ways to bring NSL-related matters to trial expeditiously, consistently of course with the interests of justice. There should be proactive case management and a monitoring of progress by the court rather than leaving all initiatives to the parties while the person remanded remains in pre-trial custody for lengthy periods. The court should set and enforce strict timetables and should critically consider whether any prescribed procedural steps, properly construed, can be eliminated, re-sequenced, modified, split up or made to run concurrently to avoid delay and wasted effort, consistent always with a fair trial.”

11.  The Defendants in this case, along with the Applicant, had been in pre-trial custody for a year.

12.  It is time for the lower Courts to consider case management exercise to impose milestone dates, that is, dates which are set in concrete unless there are exceptional circumstances to move it, e.g., the Committal Date should be set and unless exceptional circumstances pertains, that date should not be moved, and parties will have to work around that date, e.g., in the case of Defendants who have the intention to plead, the Summary of Facts have already been prepared by the Prosecution but the Defence had not been able to agree them so far. 

13.  If that is the case, then the Court will set a deadline for the Summary of Facts to be agreed, if it cannot be agreed in good time prior to committal, then the Defendants involved will be committed and at such time when the sentencing occurs before the sentencing Judge, then the matter as to whether the mitigation of an early plea should be given, will then be argued before the sentencing Judge.

14.  There should be no reason to hold up the rest of the Defendants in their progress to a speedy trial.

15.  It has also been mentioned, in passing before me, that there appears to be some Defendants who have indicated they may want a preliminary inquiry before committal.  If that be the case, then it is for the learned Chief Magistrate dealing with the case management to impose a deadline for those Defendants to decide whether they need a preliminary inquiry, so as not to affect the Committal Date.

16.  If the Court, by the deadline had not received confirmation, that any of the Defendants elect for a preliminary inquiry, then the matter should go ahead to committal.  If before the deadline, the indication is forthcoming, then it is for the learned Chief Magistrate to set a date down for the preliminary inquiry which, as far as possible, would not affect the milestone Committal Date.

17.  In a case of this size where there are so many Defendants, of course, the learned Chief Magistrate has to deal with many issues.  It will all lead to confusion unless the Court is proactive insisting on milestone dates and deadlines to be observed by the parties.  Of course, these are merely observations and it is for the learned Chief Magistrate to consider the best way forward.

18.  I have sympathy for Ms Ng’s submission about the long wait for committal and possibly trial, which as she said, militates against fairness to her client.

19.  As I had indicated, at this time, I am still of the view that the Applicant has not managed to overcome the first threshold.