SECRETARY FOR JUSTICE v. HO KAI MING KALVIN

HCCP 112/2021

[2021] HKCFI 864

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO. 112 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 had lodged his Primaries Nomination Form and attended an election forum on 27 June 2020[6], in which he maintained his determination to further the objectives of the Primaries. The Respondent subsequently won the Primaries and he then on 22 July 2020 submitted the Legislative Council nomination form with the view to participating in the election in order to further the conspiracy.   

7.  Ms Yang therefore submitted that the Respondent, if released on bail, would use his influence to further the illegitimate aim and political agenda of the group.  Even if the Respondent managed to satisfy the Court that he, if granted bail, would not commit an offence under the NSL.  There is still a risk of his absconding or re-offending, and so he should also be denied bail under the second threshold.      

8.  Mr Char on behalf of the Respondent submitted that, the Respondent had never advocated mutual destruction, although he did advocate resistance.  As the Respondent pointed out, in answer to the question from the Returning Officer, he said that all of his voting decisions in the council would be discussed with an authorized by his political party, ADPL.  The Respondent pointed out that he would not be abusing his power as a Legislator to vote down every motion if he is elected.[7]    

9.  Mr Char also submitted that what Ms Yang had pointed out, that the Respondent was advocating for sanction in the video was actually equivocal.  He was just saying that the whole world will see of what is happening and may therefore result in sanction.  So he was not advocating or calling for sanction. 

10.  As I have said over the cause of the applications for bails of the other co-defendants, it is as Anthea Pang J said in the case of HKSAR v Lai Chee Ying[8], that it is “a predictive and evaluative exercise” that I have to do, and in order to do that, I have to consider all the materials before me, including counsels’ submissions, both oral and written, and also materials which may not be admissible in evidence, to finally make an evaluative assessment as to whether there are “sufficient grounds for believing that the Respondent will not continue to conduct acts endangering national security”, if bail is granted to him. 

11.  Having done the assessment, I have ruled that the Respondent had successfully surmounted the first threshold.      

12.  Now I have to consider the second threshold which is under the Criminal Procedure Ordinance of Hong Kong and the deciding principle is whether he would surrender to custody as the Court may appoint.  I am satisfied that the conditions of bail which the learned Chief Magistrate had laid down would ensure that the Respondent would surrender to custody as the Court may appoint, and minimise the risk if any of his re-offending or absconding. 

13.  I therefore decline the Applicant’s application and bail is granted on the same terms and conditions as laid down by the learned Chief Magistrate.