TONG YING KIT v. SECRETARY FOR JUSTICE

HCAL 473/2021

[2021] HKCFI 1397

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 473 OF 2021

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_________________

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JUDGMENT

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Introduction

1.  This is about the rolled-up hearing of the Applicant’s leave application and, if leave is granted, the substantive judicial review.  The decision being challenged (“Decision”) is that of the Putative Respondent (“SJ”) to issue a certificate (“Certificate”) pursuant to Article 46(1) of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (“NSL”) as regards his criminal case[1] which is to be tried in the Court of First Instance (“CFI”).  

2.  By way of background, the Applicant has been committed for trial to the CFI on two counts of offences under the NSL, namely “incitement to secession”^[2] and “terrorist activities”^[3].  After the indictment was preferred^[4], in the exercise of the power conferred on her by NSL 46(1), on 5 February 2021 SJ issued the Certificate directing that the Applicant’s criminal case be tried without a jury.  As a result, the criminal case is now listed to be tried by a panel of three CFI judges^[5] sitting without a jury, commencing on 23 June 2021 with 15 days reserved.

3.  Before the hearing, however, it came to the attention of the court that the prosecution has indicated an intention to add to the indictment a new charge of “causing grievous bodily harm by dangerous driving”^[6], which is a non-NSL offence.  Upon enquiry by the court, the parties agree that this development would not have an impact upon the present application. Therefore, the hearing is proceeded with without regard to that intended new charge.  

The Certificate

4.  For the sake of convenience, I set out the body of the Certificate as follows:

In the Chinese original:

     本人現行使在《2020年全國性法律公布》(2020年第136號法律公告)附表中的《中華人民共和國香港特別行政區維護國家安全法》第四十六條第一款賦予的權力,對高等法院原訟法庭進行的就危害國家安全犯罪案件提起的上述刑事檢控程序,發出證書指示相關訴訟毋須在有陪審團的情況下進行審理。證書是經顧及並考慮所有相關的情況及資料,為有效防範、制止和懲治危害國家安全犯罪,基於以下理由而發出：

(一) 保障陪審員及其家人的人身安全;及/或

(二) 若審訊在有陪審團的情況下進行,有可能會妨礙司法公義妥爲執行的實際風險。

日期: 2021年2月5日

 

 

(簽署) 律政司司長 鄭若驊 資深大律師

In the English translation:

In exercise of the power vested in me by Article 46(1) of the Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region in Schedule to the Promulgation of National Law 2020 (L.N. 136 of 2020), in the above criminal proceedings in the Court of First Instance of the High Court concerning offences endangering national security, I hereby issue a certificate directing that the case shall be tried without a jury. For the effective prevention,suppression andpunishmentofoffencesendangeringnationalsecurity,the certificate is issued on the following ground(s) having taken into accountand considered all the relevant circumstances andinformation:

(1) Protection of personal safety of jurors and their family members;and/or

(2) If the trial is to be conducted with a jury, there is a real risk that the due administration of justice might beimpaired.

Dated this 5^th day of February, 2021

 

 

[Original signed] (Ms Teresa Cheng, SC)   Secretary for Justice

Contention of the Parties

Applicant’s contention

5.  In brief, the Applicant in his Form 86 challenges the Decision on the three conventional grounds: (i) procedural impropriety, in that the Applicant has not been given an opportunity to make representations and that SJ has failed to give any or any adequate reasons for the Decision; (ii) illegality, in that the Decision is not supported by any evidence or material which may trigger the use of the power under NSL 46; and (iii) irrationality, in that the Decision is so unreasonable that no reasonable decision-maker would have come to it. Alternatively, it fails to meet the well-known 4-step test laid down in Hysan Development Co Ltd v Town Planning Board^[7].

SJ’s contention

6.  In brief, SJ opposes the leave application on the basis that (i) the Decision is a prosecutorial one and therefore is free from any intervention including judicial encroachment: Article 63 of the Basic Law (“BL”); (ii) the application is a collateral attack on the criminal proceedings; (iii) the Decision is about a mere intermediate/ procedural step rather than a substantive determination of the criminal trial and as such, the challenge is premature; (iv) in any event, the Applicant’s grounds, short of any allegation of “bad faith”, are not reasonably arguable. 

7.  Before going to the details of the contentions of the parties, in order to focus on what this application is really about, the following need to be bear in mind:  

(1) the Applicant is not contending that there is a general right to a jury trial in the criminal justice system in Hong Kong. That there is no such a general right in Hong Kong is the concurrent finding of various levels of courts involved in the Chiang Lily’s case^[8].

(2) However, it is the premise of the Applicant’s challenge that an accused has a constitutional right to a trial by jury once SJ has preferred an indictment.  Whether there is such a right, constitutional or otherwise, is a matter which this court needs to decide.

(3) The challenge has nothing to do with the fairness of the trial.  The Applicant agrees that an accused may have a fair trial without a jury: see Twomey & Cameron v UK^[9]; and Re Hutching’s Application for Judicial Review^[10]. Therefore, the defendant’s absolute right to a fair trial guaranteed by BL 87 is not engaged. 

(4) There is and can be no challenge to the constitutionality of NSL 46(1): HKSAR v Lai Chee Ying^[11]. Therefore, there is also no dispute that SJ has the power to make the Decision.

(5) The present application is not about merits of the Decision either.  It is trite that formulation of policies and assessment of information leading to the decision in question are primarily matters for the decision maker (which is SJ in this case) and the court should not usurp the latter’s function.  The court’s role in judicial review is supervisory and it is only concerned with the lawfulness of the decision in question.  Therefore, even if the decision is not one which the court might or would have come to, the court would not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision: Television Broadcast Ltd v Communications Authority^[12].

BL and NSL

8.  As a matter of convenience, I list out the following articles of the BL and the NSL which are relevant to the present application:

BL 63

The Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference.

BL 86

The principle of trial by jury previously practised in Hong Kong shall be maintained.

BL 87

In criminal or civil proceedings in the Hong Kong Special Administrative Region, the principles previously applied in Hong Kong and the rights previously enjoyed by parties to proceedings shall be maintained.

NSL 4

Human rights shall be respected and protected in safeguarding national security in the Hong Kong Special Administrative Region.  The rights and freedoms, including the freedoms of speech, of the press, of publication, of association, of assembly, of procession and of demonstration, which the residents of the Region enjoy under the Basic Law of the Hong Kong Special Administrative Region and the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong, shall be protected in accordance with the law.

NSL 5

The principle of the rule of law shall be adhered to in preventing, suppressing, and imposing punishment for offences endangering national security.  A person who commits an act which constitutes an offence under the law shall be convicted and punished in accordance with the law.  No one shall be convicted and punished for an act which does not constitute an offence under thelaw.

A person is presumed innocent until convicted by a judicial body. The right to defend himself or herself and other rights in judicial proceedings that a criminal suspect, defendant, and other parties in judicial proceedings are entitled to under the law shall be protected.  No one shall be liable to be tried or punished again for an offence for which he or she has already been finally convicted or acquittedin judicial proceedings.

NSL 41

This Law and the laws of the Hong Kong Special Administrative Region shall apply to procedural matters, including those related to criminal investigation, prosecution, trial, and execution of penalty, in respect of cases concerning offence endangering national security over which the Region exercises jurisdiction.

No prosecution shall be instituted in respect of an offence endangering national security without the written consent of the Secretary for Justice.  This provision shall not prejudice the arrest and detention of a person who is suspected of having committed the offence or the application for bail by the person in accordance with the law.

Case concerning offence endangering national security within the jurisdiction of the Hong Kong Special Administrative Region shall be tried on indictment.

The trial shall be conducted in an open court.  When circumstances arise such as the trial involving State secrets or public order, all or part of the trial shall be closed to the media and the public but the judgement shall be delivered in an open court.

NSL 45

Unless otherwise provided by this Law, magistrates’ courts, the District Court, the High Court and the Court of Final Appeal shall handle proceedings in relation to the prosecution for offences endangering national security in accordance with the laws of the Hong Kong Special Administrative Region.

NSL 46

In criminal proceedings in the Court of First Instance of the High Court concerning offences endangering national security, the Secretary for Justice may issue a certificate directing that the case shall be tried without a jury on the grounds of, among others, the protection of State secrets, involvement of foreign factors in the case, and the protection of personal safety of jurors and their family members.  Where the Secretary for Justice has issued the certificate, the case shall be tried in the Court of First Instance without a jury by a panel of three judges.

Where the Secretary for Justice has issued the certificate, the reference to “a jury” or “a verdict of the jury” in any provision of the laws of the Hong Kong Special Administrative Region applicable to the related proceedings shall be construed as referring to the judges or the functions of the judge as a judge of fact.

NSL 62

This Law shall prevail where provisions of the local laws of the Hong Kong Special Administrative Region are inconsistent with this Law.

Jury trial in Hong Kong prior to 1997

9.  It would be necessary to refer to the law and practice in Hong Kong about jury trial as a backdrop.  As pointed out by Mr Dykes, leading counsel for the Applicant,  the traditional common law practice^[13] was to bring suspected offenders of serious criminal charges to justice before a judge and jury: Kingswell v The Queen^[14]. 

10.  The traditional common law practice of trial by jury, however, has been modified by statutes.  Since the creation of the District Court by the District Court Ordinance (“DCO”), Cap 336 in 1953, in case an adult is accused of an indictable offence^[15], then subject to certain specified exceptions^[16], he or she may be dealt with in one of the following ways:

(i) by a magistrate summarily^[17];

(ii) by a District Court Judge sitting alone^[18]; or

(iii) be committed to the CFI either for trial or for sentence^[19]and in the former case, be tried before a judge and a jury^[20]. 

11.  In 1992, new statutory provisions[21] were enacted in Hong Kong so that the High Court and the District Court are enabled to transfer cases to each other and the Magistrates Court.  Transfer will be upon application by the prosecution, supported by affidavit, and permitted at the discretion of the court[22]. Since then, an accused whose case has been committed to the CFI and who wants to contest the charge may not necessarily have a jury trial.  This is because:

(i) SJ may decline to file an indictment, in which case, the accused will be discharged[23];

(ii) before an indictment is preferred, SJ may refer back the case to the magistrate with directions to deal with the case accordingly^[24] and any direction so given by SJ is mandatory in that it shall be complied with by the magistrate^[25]; and

(iii) even after the indictment is preferred and before the accused is arraigned, SJ may still apply to the court for an order that the proceedings against the accused be transferred before a magistrate to be dealt with summarily or to be transferred to the District Court.  Such an application shall be made to a judge by way of motion, notice of which shall be supported by an affidavit showing the grounds on which the application is made.  A copy of the notice of motion and the affidavit shall be served on the accused.   The judge hearing the application may allow or refuse it^[26].

12.  The difference between (ii) and (iii) above, in my view, can be explained on the basis that SJ is not taken to have made a decision on venue before the indictment is preferred.  However, once the indictment is preferred, that signifies a decision by SJ that the case be tried in the CFI.  After the decision was made and if SJ changes her mind on venue, she needs to inform the accused so that the latter may make representations to the court if the accused so wishes.  The judge may consider the application, the determining factor being whether or not it is fit to grant the application “having regard to the interests of justice”. 

13.  For the present purpose, three features stand out from the above legislative scheme.  First, jury trial is only available in the CFI.  Secondly, before the enactment of the NSL, trial before a judge and a jury is the only mode of trial available in the CFI because of the procedural requirement of s41(2), CPO.  It therefore follows that the choice of venue by SJ has a two-fold impact on the proceedings: (i) in case of a conviction, the sentence which can be imposed on an accused^[27]; and (ii) the mode of trial that is available.  Thirdly, even after an indictment is preferred, in case SJ applies for a transfer, the court in considering the application may take into account, among other things, the view of the accused, but the latter is not decisive.  I will come back to this point in due course.

14.  Mr Dykes has drawn my attention to the great value and advantages of trial by jury eloquently expounded by eminent judges of high stature in other common law jurisdictions.   On the other hand, in the face of the weight of local case authorities, he also has to accept that there is not a general right to jury trial in Hong Kong.  Prior to the handover in 1997, it had already been decided that the choice of venue (which bears on the mode of trial) was a matter of prosecutorial choice: David Lam Shu-tsang  v Attorney General^[28]. After the handover, the situation is the same as before.  The choice of venue remains a matter of prosecutorial decision free from any intervention.  Moreover, the control by the Department of Justice of criminal proceedings in Hong Kong is now also entrenched by BL 63: Chiang Lily v Secretary for Justice, ante.   

15.  The Department of Justice (“DoJ”) has consistently informed the public of the factors that the prosecution would take into account in deciding venue of trial.  The current version is contained in the Prosecution Code^[29] which is available on the DoJ’s website.  Notably the preference of the accused has never been one of those. 

16.  The aforesaid forms the relevant legal context existing before the enactment of NSL.

Enactment of the NSL

17.  The social events and legislative history leading to the enactment and promulgation of the NSL as a national law applied to the HKSAR under BL 18 have been summarised in HKSAR v Lai Chee Ying, ante.  In particular, the Court of Final Appeal notes the concerns of the Central Authorities in the light of recent disruptions in Hong Kong^[30]:

“At present, the increasingly notable national security risks in the HKSAR have become a prominent problem.  In particular, since the onset of Hong Kong’s ‘legislative amendment turmoil’ in 2019, anti-China forces seeking to disrupt Hong Kong have blatantly advocated such notions as ‘Hong Kong independence’, ‘self-determination’ and ‘referendum’, and engaged in activities to undermine national unity and split the country.  They have brazenly desecrated and defiled the national flag and emblem, incited Hong Kong people to oppose China and the Communist Party of China (‘CPC’), besiege Central People's Government (‘CPG’) offices in Hong Kong, and discriminate and ostracize Mainland personnel in Hong Kong.  These forces have also wilfully disrupted social order in Hong Kong, violently resisted police enforcement of the law, damaged public facilities and property, and paralyzed governance by the government and operation of the legislature.  Moreover in recent years, certain foreign or external forces have flagrantly interfered in Hong Kong's affairs.  They have made intervention and created disturbances in various ways, such as by legislative and administrative means and through non-governmental organizations. In collusion with those anti-China Hong Kong disrupters, these forces of the same ilk backed and cheered on the disrupters and provided a protective umbrella, and utilized Hong Kong to carry out activities endangering national security.  These acts and activities have seriously challenged the bottom line of the ‘One Country, Two Systems’ principle, seriously undermined the rule of law, and seriously jeopardized national sovereignty, security and development interests.”

18.     It is also pertinent to note the observations of the Court of Appeal, made in Junior Police Officers’ Association of the Hong Kong Police Force v Electoral Affairs Commission & Ors^[31], that the tension in the society resulting from recent public unrests has led to “doxxing”, that is, extensive leaking of personal information and cyber-bullying on the Internet and various social and other media.  Therefore, many people, members of the police force and their family in particular, are concerned about unlawful infringement of their right to privacy and the privacy of their home by such doxxing practices.

19.  Given the absence of any local law specifically designed for safeguarding national security, however, it is possible that there would be inconsistencies between certain articles of the NSL and the pre-existing local law.  As to this, the Court of Final Appeal notes^[32]: 

“29.     While it is evident that the legislative intention is for the NSL to operate in tandem with the laws of the HKSAR, seeking “convergence, compatibility and complementarity” with local laws, NSL 62 provides for possible inconsistencies, giving priority to NSL provisions in such cases:

‘This Law shall prevail where provisions of the local laws of the Hong Kong Special Administrative Region are inconsistent with this Law.’”

20.  As to the construction of the NSL, as pointed out by the Court of Final Appeal, the various articles in NSL has to be purposefully construed as a whole taking into account the aforesaid social context and legislative history^[33]:

“41. NSL 4 and NSL 5, reflecting presentations to the NPC and NPCSC set out above, which emphasise protection and respect for human rights and adherence to rule of law values while safeguarding national security, are also centrally important to the interpretation of the NSL generally and NSL 42(2) in particular.”

21.  Guidance has also been provided by the Court of Final Appeal as to how such possible inconsistencies should be approached as a matter of construction.  In the context of the law on bail in cases concerning offence endangering national security, the Court of Final Appeal says^[34]:

“42. We have decided that there is no power to hold any provision of the NSL to be unconstitutional or invalid as incompatible with the Basic Law and Bill of Rights.  However, that is not at all to say that human rights and freedoms and rule of law values are inapplicable.  On the contrary, NSL 4 and NSL 5 expressly stipulate that those rights, freedoms and values are to be protected and adhered to in applying the NSL.  They provide the context in which NSL 42(2) must be construed and applied.  As far as possible, NSL 42(2) is to be given a meaning and effect compatible with those rights, freedoms and values.  Save insofar as NSL 42(2) constitutes a specific exception thereto, that corpus of law, comprising not only the human rights and rule of law principles but also the generally applicable HKSAR rules governing the grant or refusal of bail is intended to have continued effect in NSL cases.  As it was put by this Court in a comparable situation, the specific exception is intended to operate in tandem with constitutional rights and freedoms and other applicable statutory norms as part of a coherent whole.”

     (Emphasis supplied)

NSL 46

22.  I now turn to consider the terms of NSL 46 in particular.  The following observations can be made:

(i) the article aims at extant criminal proceedings concerning offences endangering national security in the CFI.  Based on the discussion above on the legal context, criminal proceedings are not yet in the CFI, in other words the CFI has not yet seized of the conduct of the matter, unless and until the indictment has been preferred^[35];

(ii) the article creates a new mode of trial in the CFI for dealing with the aforesaid criminal proceedings;   

(iii) it is for SJ and SJ alone to decide whether the new mode of trial should be adopted in a particular case;

(iv) the grounds for the exercise of that power, among others, are: (1) the protection of State secrets; (2) involvement of foreign factors; and (3) the protection of personal safety of jurors and their family members; 

(v) there are no express provisions for SJ to hear or to notify the accused before issuing a certificate; and 

(vi) the Certificate once issued serves as a direction so that the case shall be tried without a jury by a panel of three judges.  In this sense, the direction of SJ is mandatory.

23.  When NSL 41, 45 and 46 are read together, the following further observations can be made:

(a) These are now two possible ways to deal with criminal proceedings concerning offences endangering national security in the CFI, namely either by (i) the conventional mode of having a trial before a judge and a jury; or (ii) the new mode of having a trial before a panel of three judges;

(b) the grounds given in NSL 46(1) for invoking the new mode are non-exhaustive^[36] and therefore it is evidently the legislative intention that there could be grounds other than the three given which may justify a trial without a jury;

(c) by necessary implication, the legislative intention must be that the new mode can be used if and only if SJ genuinely believes that the grounds stated in the Certificate exist; and

(d) in the absence of a certificate issued under NSL 46(1), the procedural requirements contained in the local legislation including those of MO, DCO and CPO are to be followed.

24.  As regards (b) above, the grounds relied upon by SJ as stated in the Certificate are:

(a) Protection of personal safety of jurors and their family members; and/or

(b) If the trial is to be conducted with a jury, there is a real risk that the due administration of justice might be impaired.

I note that only (1) above is a ground expressively provided for in NSL 46(1).  Because of the use of the connecting phrase “and/or”, it is not entirely clear whether (1) and (2) are supposed to be independent of each other or that they are interrelated.  With respect, Mr Dykes is justified in criticising (2) as being ambiguous.  However, since (1) alone would in itself be sufficient for justifying the issue for the Certificate and since it has not been argued that (2) is an irrelevant consideration, it is not necessary for this court to decide whether the inclusion of (2) in the Certificate is appropriate.  The issue as to whether there are any boundaries or parameters for grounds upon which SJ can rely for the purpose of NSL 46(1) also does not arise in the present application.

Premises of Applicant’s contention

25.  As mentioned above, it is the premises of the Applicant’s contention that he has a “constitutional right” to a jury trial once an indictment is preferred against him.  The Applicant contends that “where the SJ chooses to proceed under Part III of the MO for committal for trial in the CFI^[37] or she is required to proceed in this way because the offence cannot be tried by a magistrate or District Judge, if an accused is committed and the SJ then serves an indictment, the accused then has a right to a jury trial in the CFI unless the SJ discontinues the case”[38].

26.  However, having considered the pre-existing legal context and the various articles of NSL, I am unable to accept that such a right as contended exists, not to say a “constitutional right”.  My reasons are as follows:

(a) The existence of such a right is inconsistent with the legislative scheme introduced well before the handover in 1997 which enables transfer of cases between different levels of courts and in particular s65F, CPO.  First, it would be an anomaly to ascribe to an accused a right which he or she cannot waive, as (before NLS) it is not possible to have a trial without a jury in the CFI at all.  Secondly, the court in deciding whether to grant the application for transfer is concerned only with what the “interests of justice” would require.  Whilst a consideration of where the “interests of justice” lie would necessarily entail fairness to the accused in the circumstances, there is and can be no dispute that an accused can have a fair trial with or without a jury.  Thirdly, if an accused has the right (constitutional or otherwise) to a jury trial as contended, then it would be difficult to see how he or she could be deprived of that right by the exercise of the court’s discretion.

(b) As mentioned above, the preferment of an indictment signifies SJ’s decision that the case shall be tried in the CFI.  Before the enactment of the NSL, once that decision is made it would inevitably result in a trial before a judge and a jury, which was the only mode of trial then available by virtue of s41(2), CPO. However, the same is no longer true after the enactment of the NSL, which caters for two possible modes of trial in the CFI as regards criminal proceedings concerning offences endangering national security. 

(c) Despite the high human right content of the NSL because of NSL 4 and NSL 5, there is a notable absence of any provisions in the NSL which suggests that SJ has a general duty to hear or at least to notify an accused before she can exercise her power under NSL 46(1).  However, one would expect those provisions to be made if the right as contended exists or otherwise survives NSL 46(1).  On the other hand, NSL 46 stresses the mandatory nature of SJ’s direction on the mode of trial.  Moreover, if one looks at the expressed grounds contained in NSL 46(1) for invoking the power, namely (1) protection of state secrets; (2) involvement of foreign factors; and (3) jury protection, they are matters on which SJ would reasonably be expected not to engage in discussion with the accused before trial. That, in my view, further strengthen the construction against any need to consult or inform an accused before issuing a certificate.  

27.  Based on the above, I come to the conclusion that the preferment of an indictment on its own does not confer on an accused the right (let alone constitutional right) to a jury trial as now contended by the Applicant.  This has been the situation in Hong Kong since 1992.  Therefore, BL 86 and BL 87 do not assist him.

28.  However, if I were wrong so that “the principle of trial by jury previously practised in Hong Kong” would include the right as now contended by the Applicant, that right would have been abrogated by the combined operation of NSL 46(1) and NSL 62 as a matter of necessary implication.  In my judgment, taking away such a right, if it had ever existed at all, is not incompatible with BL 86.  My reasons are as follows:

(a) The word “maintained” in BL 86 is about the preservation of the continuity of the jury system.  However, that does not entail preservation of all the elements of which the system consists: cf Secretary for Justice v Lau Kwok Fai & Anor[39]; applied in Catholic Diocese of Hong Kong v Secretary for Justice[40] ;

(b) there is no challenge to the constitutionality of NSL 46(1); and

(c) in view of: (i) the special status of the NSL as a national law enacted with a specific purpose of safeguarding national security; and (ii) the unambiguous wording of NSL 46, it is evident that the legislative intent is that any previous right to jury trial in the CFI, if existed, shall be abrogated in “criminal proceedings concerning offences endangering national security”.  

29.  As to what the exact scope of “criminal proceedings concerning offences endangering national security” would be, that does not call for consideration in the present application, there being no dispute that the current counts of the Applicant are such. 

BL 63 & prosecutorial decision

30.  I now turn to consider whether the Decision is, as SJ contends, the type of a prosecutorial decision falling within the ambit of BL 63 and therefore is free of any interference.   In this regard, it would be instructive first of all to have regard to the reasons given by the Appeal Committee in Lily Chiang’s case as to why the choice of venue is a prosecutorial decision covered by BL 63: 

“15. Choice of the venue for a prosecution is clearly a matter covered by Article 63 of the Basic Law which gives control of prosecutions to the Secretary for Justice without any external interference. Wright J’s conclusion was plainly correct.

16. This becomes obvious once one considers the context and basis of any decision regarding venue. As to context, if selection of venue were a judicial function, the magistrate would have to hear submissions and take evidence bearing on that choice, looking in some detail at the alleged offence and the circumstances of the accused, turning the mere decision as to venue into a mini-trial. That cannot be the proper function of the magistrate.

17. Moreover, the basis of making the selection shows that the function is not judicial. In the Statement of Prosecution Policy and Practice (2009), guidance as to choice of venue is given as follows:

‘In the selection of venue, the sentence which is likely to be imposed upon an accused after trial is an important factor for the prosecutor to examine.  The prosecutor will also wish to consider the general circumstances of the case, the gravity of what is alleged, the antecedents of the accused and any aggravating factors.’ (para 14.1)

18. These are plainly matters that may properly guide the prosecutor but which it would be highly undesirable for a magistrate to explore before the trial. It would obviously be most inappropriate for there to be a debate as to likely sentence or antecedents or aggravating factors before the magistrate regarding a person fully entitled to the presumption of innocence. The present system avoids this by properly treating the question of venue as a prosecutorial choice with the transfer following on a mandatory basis.”

     (Emphasis supplied)

31.  In my view, similar rationale would apply to the decision whether or not to issue  a NSL 46 certificate.  The express grounds given in NSL 46(1) are those that it would neither be reasonable or appropriate for SJ to seek an accused’s views on them before trial.  Moreover, it would be unwise to have a mini trial (before verdict) for the parties to argue whether the case would involve state secrets; whether there are foreign factors; whether there is any attempt (by the accused or someone else) to interfere with jury and so forth. 

32.  I draw some comfort from the fact that my view has the support of the judgment of the UK Supreme Court in Re Hutchings, ante.  Lord Kerr, who gives the judgement of the court, cites the judgments in Re Arthurs’ Application^[41]and Re Suker’s Application^[42]with approval and agrees that an analogy can be drawn between the decisions to issue the kind of certificate under consideration and the decisions whether to prosecute.  His lordship says:

“60  While some, at least, of these matters point up the differences between the mechanics of a decision whether to prosecute and a determination that the trial should take place before a judge sitting without a jury, they do not signify when one concentrates on the nature of the decision-making process. A prosecutor faced with the task of deciding whether to initiate a prosecution must evaluate material not disclosable to the person who might be charged; similarly, the Director, in deciding whether to issue a certificate, will have recourse to materials which are not revealed to the person who will be affected by it. A decision whether to prosecute is dependent on an individual's reaction to and judgment on the material available as to the possible outcome of proceeding; likewise, the Director's decision on the possible consequences of proceeding with a trial with a jury. Both decisions may involve consideration of material which is not only non-disclosable but which may be of a highly sensitive nature. As Girvan LJ said in para 24 of Arthurs, the parallels between the two species of decision are obvious. Moreover, it can be no coincidence that the 2007 Act, in imposing restrictions on the availability of judicial review adopted the language of Lord Steyn in R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326 , a decision relating to the permissibility of challenge to a decision to prosecute.”        

(Emphasis supplied)

33.  Following Lily Chiang and Re Hutchings, in my judgment the Decision is of a type which is covered and protected by BL 63.  On that note, as would become apparent in the following discussion, the Applicant is facing a high hurdle even at the leave stage of his application.

Amenability

General principles

34.  The relevant legal principles concerning amenability of  prosecutorial decisions to judicial review have been comprehensively reviewed and summarised by Chow J in Kwok Cheuk Kin v律政司刑事檢控專員梁卓然^[43]，all of which I respectfully adopt.  It suffices for me to reiterate what the Court of Appeal says in Re Leung Lai Fun^[44], the Court of Appeal says:

“Article 63 of the Basic Law provides that ‘The Department of Justice shall control criminal prosecutions, free from any interference’.  As Hartmann J had pointed out in RV v The Director of Immigration (2008) 4 HKLRD 529, this provision includes the protection of the independence of the Department of Justice’s control of criminal prosecutions from judicial encroachment.  It is only if the case belongs to those extremely rare situations, such as where there is evidence proving that the Department of Justice has acted in obedience to political instruction when making the decision, or is acting in bad faith, such as to cause the Court to find that the prosecutorial decision is unconstitutional, that the Court will have jurisdiction to review the decision concerned.  Otherwise the Court should not encroach on the right of the Department of Justice to control prosecutions.  This is the major premise which is founded on principle.”

35.  It is well-established that prosecutorial independence of SJ should not be put on the same footing as an ordinary exercise of discretion by an administrator, and thus her prosecutorial decision could not be reviewed by the court based on ordinary judicial review grounds.  Hartmann J identifies three particular types of cases where SJ would be regarded as having acted outside the constitutional limits when making a prosecutorial decision, namely, (i) acting in obedience to political instruction, (ii) bad faith, and (iii) rigid fettering of prosecutorial discretion.  Whilst the above list is not meant to be exhaustive of the circumstances in which judicial interference would be justified, the courts have consistently emphasized the rarity of instances where it would be appropriate for the court to interfere with a prosecutorial decision and in which case the evidence must also be such that it points unquestionably to the desirability of doing so: see, eg, R v Director of Public Prosecutions, ex parte C^[45]; Sharma v Brown-Antoine & Ors^[46]; Ma Pui Tung v Department of Justice^[47]; and Leung Wai Kuen v Secretary for Justice^[48].

Applicant’s grounds of challenge

Procedural impropriety

36.  As regards the ground of procedural impropriety or unfairness, I am fully alive to the modern judicial trend in favour of giving of reasons by administrative decision makers for their decisions: Oriental Daily Publisher v Commissioner of Television and Entertainment Licensing Authority^[49]. However, as I have said, the prosecutorial independence of SJ should not be put on the same footing as an ordinary exercise of discretion by an administrator: see, eg, Kwok Cheuk Kin v律政司刑事檢控專員梁卓然, ante.

37.  Moreover, arguments similar to the ones now being advanced by the Applicant under this head have been rejected by the UK Supreme Court in Re Hutchings with cogent reasons based on general principles.  In that case, the appellant was only informed of the issue of the certification in question afterwards. Reasons were given by the DPP subsequently by way of a letter but in very general terms as follows:

“I can advise you that the Director suspected that condition 4 in section 1 of the 2007 Act was satisfied on the basis of information provided by the police coupled with a commentary and assessment of that information, an analysis of the facts and circumstances of this case and the advice of senior counsel.  In this way the Director formed the requisite suspicion.

In view of the suspicion which he formed in relation to condition 4, the Director was satisfied that there was a risk that the administration of justice might be impaired if the trial were to be conducted with a jury. This risk arises from the possibility of a biased juror or jury, having regard to the particular circumstances of this case.

The Director further considered whether the risk to the administration of justice could be mitigated by application to the court to screen the jury, sequester the jury or transfer the trial to a different venue.  The Director was satisfied that there remained a risk that the administration of justice might be impaired on the basis that, even if granted, these measures might not be sufficiently effective in preventing or significantly reducing the potential risk posed to the administration of justice in this case.”

If one compares the above letter with the Certificate, then one would find that the letter, in substance, actually does not give away more information than the Certificate.

38.  Similar to the Applicant in the present application, the appellant in Re Hutchings complained that he had not been given the reasons by the DPP on which the certificate was based and he had not been given the opportunity to make representations before the certificate was issued.  In rejecting those arguments, Lord Kerr says:

“57  Quite apart from the statutory imperative requiring that there be exceptional circumstances in the absence of bad faith or dishonesty, the decision whether to issue a certificate is obviously one which should not be subject to the full spectrum of conventional judicial review challenge. Unlike most decisions taken in the public law arena, it is not founded exclusively on the evaluation and weighing of hard evidence. It will usually be motivated by sensitive information which cannot be disclosed. It is a decision which the Director of Public Prosecutions must take according to his personal reaction to the material with which he has been presented and his own estimation of the matters at stake. In sum, a decision to issue a certificate does not readily admit of scrutiny of the reasoning underlying it because it will usually be of the impressionistic and instinctual variety, for the reasons earlier explained.”

(Emphasis supplied)

“63  Of course, the appellant complains that effective representations cannot be made in the absence of information about the material on which the Director made his decision and the reasons that he decided as he did. Quite apart from the statutory prohibition on a challenge to the failure to disclose explanations other than on the limited grounds contained in section 7(1)(c), there are two sound reasons that the appellant should not succeed in this argument. First, in many cases involving the issue of a certificate, information will have been received by the Director from the police or other members of the security services which must, for obvious reasons, remain confidential. Secondly, the nature of the decision that the Director takes, as I have already explained, will usually be of an instinctual or impressionistic character, not susceptible of ready articulation.

64  But the truly important point to make here is that section 1 qualifies, if not indeed removes, the right to trial by a jury. Hence, the issue of a certificate does not itself remove the right (it is the statute which has done that). In reality the issue of a certificate under section 1 partakes of a case management decision aimed at ensuring the relevant end result of a fair trial. Viewed from this perspective, it is of obvious importance that elaborate, protracted challenges to the issue of a certificate under section 1 are wholly to be avoided, where possible. It is, no doubt, with this consideration in mind that section 7 circumscribed the opportunity for judicial review challenge. Such challenges have the potential to undermine the objective of the legislation to ensure that trials take place in accordance with the requirements of article 6 of ECHR (both as to fairness and to promptness).

65  That is not to say that there will never be occasion where some information can be provided which would assist in the making of representations by a person affected by the issue of a certificate. I refrain from speculation as to how or when such an occasion might arise. I am entirely satisfied, however, that it does not arise in the present case.”

(Emphasis supplied)

39.  In an endeavour to distinguish Re Hutchings which are (to say the least) unfavourable to the Applicant, Mr Dykes has drawn my attention to various differences between the legislative scheme of the Justice and Security (Northern Ireland) Act 2007 and that of the NSL.  However, as Lord Kerr is at pains to point out, paragraphs 57 & 63 of the judgment quoted above are based on general principles “[q]uite apart from the statutory imperative” of the Act.  As such, in my judgment, they apply with equal force to the present case.  As his lordship succinctly puts:

“… the question of whether the decision is made on foot of a statutory provision or on a non-statutory basis is irrelevant.”[50]

40.  As regards paragraph 64 of that judgment, as already discussed, unlike the situation in the UK, an accused does not have a general right to jury trial in Hong Kong.  The procedural requirement of s41(2), CPO must now be read subject to NSL 46. Moreover, as I have already discussed above, even assuming that an accused in criminal proceedings in the CFI had a right to jury trial as contended, that right would have been abrogated, not by SJ’s decision to issue the Certificate, but by the combined operation of NSL 46 and NSL 62.

41.  Following Re Hutchings, in my judgment, in the circumstances of the present case there is no requirement for SJ to hear from or to inform the Applicant before the Decision was made.

42.  That said, as a matter of prudence, I would also add a rider, similarly to the one mentioned in paragraph 65 of the judgment of Lord Kerr, that there might be occasions where some information can be provided which would assist him in the making of representations by a person affected by the issue of a NSL 46(1) certificate.  That would very much depend on the grounds which are given for the issue of the certificate, bearing in mind that the grounds expressively provided for in NSL 46(1) are non-exhaustive.   In case reasons are given, the degree of particularity required depending entirely on the nature of the issues falling for decision:  South Bucks DC v Porter (No 2)^[51]; and Capital Rich Development Ltd v Town Planning Board^[52].   However, since the issue does not arise in the present application, I express no firm view on this matter.

Illegality

43.  As regards the ground of illegality, absent any allegations of “bad faith” or “dishonesty”, there is no basis for the court to interfere the Decision:

(a) there is nothing on the face of the Certificate to suggest, as the Applicant contends, that SJ has misinterpreted or misapplied NSL 46(1) in coming to the Decision: cf D v Secretary for Justice^[53];

(b) SJ has stated in the Certificate the grounds on which the Decision was based and the source of her power to issue the Certificate. As I have said, the first ground given is expressly provided for in NSL 46(1) and is in itself sufficient;

(c) in the course of the hearing, a hypothetical case was raised as to whether judicial review would be available if the grounds given in a NSL 46(1) certificate are plainly irrelevant.  However, that issue does not arise in the present application, as it has not been argued that the second ground stated in the Certificate is in fact irrelevant; and

(d) it is stated in the Certificate that “having taken into account and considered all the relevant circumstances and information”. 

44.  In view of the present state of the law, the mere absence of any or any detail reasons given in the Certificate is plainly insufficient to meet the very high evidential threshold for reviewing a prosecutorial decision. 

Wednesbury unreasonableness

45.  Insofar as the challenge is based on the Decision being reasonable in the Wednesbury sense, the Applicant has not gone anywhere far enough to succeed along this line.  There is nothing inherently unreasonable in directing a trial by a panel of three judges sitting without a jury, when there is a perceived risk of the personal safety of jurors and their family members or that due administration of justice might be impaired (whether as a consequence of jury intervention or otherwise).  As said by the Court of Appeal in Lily Chiang’s case^[54]:

“Where a challenge is made on this basis (finding its origins in the case of Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1KB 223), broadly speaking, it is necessary for an applicant to demonstrate, for example, that in arriving at the relevant decision, a decision-maker displayed bad faith, or took into account extraneous factors, or failed to take into account relevant ones or disregarded public policy. In the context of a prosecutor's decision-making powers, see also David Lam (in particular the decision of the Full Bench reported in [1977] HKLR 393, at 402‑3) and the decision of this court in Re C (A Bankrupt) [2006] 4 HKC 582, at 591 H-J (paragraph 20). Traditionally, a challenge on this basis has in practice involved a high hurdle to overcome.”

Proportionality

46.  As it is not in dispute that the Applicant’s trial to a fair trial is not engaged and as a consequence of my ruling that the Applicant does not have a right to a jury trial as contended, it follows that the Decision does not constitute a restriction of any of his rights.  As such, the 4-step proportionality test set out in Hysan Development Co Ltd v Town Planning Board is simply not engaged.

Conclusion

47.  It is trite that only a reasonably arguable claim which enjoys realistic prospects of success should be given leave to proceed: Po Fun Chan v Winnie Cheung^[55].  However, in view of my rulings above, none of the grounds relied upon by the Applicant for the present application is reasonably arguable.  Therefore, I refused him leave for judicial review.  

48.  In the circumstances without any disrespect, it would be unnecessary for me to deal with Mr Suen’s arguments on “collateral attack” and “intermediate/ procedural step”.

Costs

49.  The relevant legal principles, which are well-known, are as stated in Leung Kwok Hung v President of the Legislative Council (No 2)^[56]and applied in Ahmad Ali v Director of Legal Aid^[57] , all of which I need not repeated here. 

50.  I am aware of the general rule that costs should follow the event.  I note also that the Applicant has an obvious personal interest in the present application.  On the other hand, NSL is still new to Hong Kong and there are only a handful of decided cases on its operation.  Besides, there is a strong public interest element in the matters raised. 

51.  Putting everything on balance, in the exercise of my discretion I make an order nisi that there shall be no order as to costs.  If neither party applies for a variation within 14 days from the date of this judgment, the order shall become absolute upon expiry of that period. 

52.  It only leaves me to thank counsel for their helpful assistance.