HKSAR v. TONG YING KIT

HCCP 463/2020

[2020] HKCFI 2196

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 463 OF 2020

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REASONS FOR RULING

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1.  The Applicant was arrested in relation to an incident occurred on 1 July 2020, which was the day after the promulgation of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (“NSL”). He is facing two charges under the NSL: (1) incitement to secession, contrary to Articles 20 and 21, the NSL; and (2) terrorist activities, contrary to Article 24.

2.  On 6 July 2020, the Chief Magistrate refused the Applicant’s bail application.  On 3 August 2020, the Applicant applied to the Court of First Instance for both habeas corpus and bail review. 

3.  The application for habeas corpus was heard on 20 August 2020 before Chow J and Alex J.  By a judgment handed down on the following day (“the Habeas Corpus Judgment”)[1], the court dismissed the application for habeas corpus.  The Applicant’s remaining bail application was heard before me on 25 August 2020 which I refused, saying that detailed reasons would be given.  This, I now do.

4.  The background and basic facts have already been given by in the Habeas Corpus Judgment which I am not going to repeat. 

General legal principles on bail review

5.  The legal principles applicable to a bail review under s9J of the Criminal Procedure Ordinance (“CPO”), Cap 210 are well-known and have been summarized in HKSAR v Vu Thang Duong^[2]and HKSAR v Wong Chi-fung[3].  For the present purpose, I would like to reiterate and elaborate as follows:

(1)     whilst there is no absolute right to bail, given an accused’s Basic Law guaranteed freedom of liberty[4] and presumption of innocence[5], bail pending trial should not be withheld without good, valid and sufficient grounds.  Therefore, generally speaking bail pending trial should be the norm rather than the exception and hence the use of the word “shall” in s9D(1), the CPO;

(2)     nevertheless, as Zervos J (as he then was) observed in HKSAR v Vu Thang Duong regarding the effect of s9G, the CPO, “the presumption of bail can be rebutted by the nature of the offence, the risk of danger to the public, or the likelihood that the trial could be affected by the defendant absconding or influencing a witness”[6];

(3)     it is the existence of substantial grounds for the belief, not the belief itself which is the crucial factor: R v Slough Justices, ex parte Duncan[7];

(4)     bail applications are about assessing of risks.  As Lord Hailsham, in his address to the Gloucester Branch of the Magistrates’ Association in his capacity as Lord Chancellor, said, “in granting or refusing bail you are bound to come to a decision on the basis of probabilities and not certainties”[8];

(5)     one conventional ground for refusing bail is the so-called “risk of re-offending”: R v Pegg[9];and R v Phillips[10].  This short-hand way of describing the ground (which has received statutory recognition at s9G(1)(b)[11], the CPO) is a misnomer insofar as it suggests a derogation from the presumption of innocence.  Instead, this ground stems from the duty of the courts to protect the public and also the purpose of crime prevention which must be one the aims of any penal system.  There are two different aspects of the “risk of re-offending” which, for the present purpose, needs to be considered: (1) the likelihood of the accused committing an offence whilst on bail; and (2) the likely severity of the consequence of that latter offence.  Thus, the “risk of re-offending” can be seen as a function of two variables, so that even when the chance of the accused committing an offence whilst on bail is not particularly high, bail may still be legitimately refused if the resultant harm would be so grave as to justify the refusal.  The respective weight to be attached to these two aspects of the ground and their combined effect, however, would be case and defendant specific;  

(6)     a judge in a bail review is not exercising an appellate jurisdiction but is obliged to review the matter afresh in the application: HKSAR v Siu Yat Leung^[12] and Tam Tak Chi v HKSAR^[13];

(7)     although s9G(2), the CPO sanctions the bail court to take into account the nature and weight of the evidence of the commission of the alleged offence by the accused person and the likely sentence in case of a conviction, the hearing of the bail application is simply no occasion for the court to conduct any detail analysis of the evidence or to make any “findings”.  This is because at that stage the investigation may still be on-going and evidence from the prosecution and the defence (if any) is yet to be subject to any detail examination.  Furthermore, it has been held that strict rules of evidence are inherently inappropriate in assisting a court in determining whether there were “substantial grounds for believing”: R v Mansfield Justices, Ex p Sharkey[14];

(8)     it is in keeping with the principle that the strict rules of evidence are inappropriate in the court’s making of a determination on bail that when objections to bail are raised by the prosecution they are generally made by way of representation.  In R v Guest, ex parte Metropolitan Police Commissioner[15], it was said that there was no overriding requirement that the prosecutor should adduce sworn evidence to support his application, nor was there an assumption that bail was to be granted in cases where sworn evidence connecting the accused with the offence was not given; 

(9)     the assessment made by the bail court is therefore bound to be tentative and provisional and must not in any way be viewed as binding on the trial court; and

(10)     there are occasions when the bail court is able to ameliorate its concern about the attendant risks of granting bail, namely the flight risk, the risk of offending whilst on bail and the risks of interfering with witnesses by the imposition of suitable conditions tailor-made for the accused: s9G(3), the CPO.  However, any such restrictions must be no more than necessary and proportional.

Question of bail under NSL

6.  In the Habeas Corpus Judgment, the court tackles with the issue as to whether Article 42, the NSL has changed the pre-existing law on bail insofar as the offences created by that national law are concerned.  Article 42 provides that:

     When applying the laws in force in Hong Kong Special Administrative Region concerning matters such as the detention and time limit for trial, 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 so as to effectively prevent, suppress and impose punishment for such offence.

     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.

(Emphasis supplied)

The crux of the matter is whether the Article has the effect of undermining the pre-existing presumption of innocence and presumption of bail.  The court treated this as a matter of construction of Article 42 taking into account the full legal context which includes the other articles in the NSL, the relevant articles in the Basic Law and the statutory provisions in Part IA of the CPO. 

7.  In the habeas corpus judgment, it is held that the Basic Law and the NSL should be construed as a coherent whole so far as reasonably possible.  In this regard, the well-established approach of the court has been to give a generous interpretation to a fundamental constitutional right its full measures and to put a narrow interpretation to restrictions on such a fundamental right: Leung Kwok Hung & Ors v HKSAR[16].  The court has already decided that Article 42, the NSL is consistent with the presumption of innocence.

8.  As to the extent, if any, which the rebuttable presumption of bail is affected by Article 42, the NSL and how the latter should operate in practice, in my judgment full weight must be given to the purposes of the NSL as stated in Article 1 which include: (1) ensuring the resolute, full and faithful implementation of the policy of One Country, Two Systems; (2) safeguarding national security; (3) prescribing for offences and measures against conducts which may endanger national security; (4) maintaining prosperity and stability of Hong Kong; and (5) protecting the lawful rights and interests of the residents of Hong Kong.  

9.  It is important to note as well that Article 3(3), the NSL provides:

“ The executive authorities, legislature and judiciary of the Region shall effectively prevent, suppress and impose punishment for act or activity endangering national security in accordance with this Law and other relevant laws.”

I do not understand the above quoted to mean that the role of the courts is restricted to “imposing punishment”.   As I have discussed above, the courts in fulfilling its constitutional function in administering criminal justice, also have a role to play in protecting the public and preventing crimes.  This role can be relevant in considering bail applications.

10.  On the other hand, it is also imperative to have regard to the fundamental human rights and freedom which residents of Hong Kong enjoy and the presumption of innocence, upon both of which the presumption of bail provided for in s9D, the CPO is premised, are expressly recognized and protected in Articles 4 & 5[17].

11.  As observed in the Habeas Corpus Judgment, Article 42 serves a similar purpose as s9G(2)(b), the CPO.  However, the latter is more general in that it covers all offences including those which are different from and/or not be as serious as “acts endangering national security”.  Article 42 is much narrower in scope.  As noted in the Habeas Corpus Judgment, “acts endangering national security” means offences under the National Security Law and not just any act which may in some way be said to endanger national security[18].

12.  In respect of the likely impact of Article 42 on the outcome of a bail application, it was said in the Habeas Corpus Judgment that[19]:

“In short, while there may a difference of emphasis between s 9G(1) of the CPO and Article 42 of the National Security Law, the impact of Article 42 is more apparent than real. The practical application of Article 42 is unlikely to result in any different outcome of a bail application in the vast majority of cases.”

13.  Lest it be misunderstood, by saying that “the impact of Article 42 is more apparent than real”, the court is not suggesting that the Article does not undermine the rebuttable presumption of bail at all. The court does foresee that there would be exceptional cases when a different outcome on the question of bail may be reached as a result of the application of Article 42.  However, the court is of the view that even in such cases the bail court still retains a significant, albeit more restricted, role in deciding questions of bail and of the freedom of the individual: cf State of Mauritius v Khoyratty[20]. Thus, the court said[21],

“48. In other words, while an absolute prohibition against bail is objectionable, a provision which gives a judge a significant role to determine whether to grant bail to specified classes of offenders based on their individual circumstances is not to be viewed in the same light. In the present case, Article 42(2) does not, in our view, impose any absolute prohibition against bail. It should not even be read as imposing a presumption against bail. If Article 42(2) is given a proper construction and applied in the manner suggested in §§36 to 45 above, we do not believe Article 42(2) to be inconsistent with the various rights under the Basic Law and the Hong Kong Bill of Rights referred to by Mr Dykes, in particular the presumption of innocence and the presumption of bail.”

14.  In my judgment, the effect of Article 42 is to emphasize the particular weight which the bail court ought to give to the “risk of re-offending” when dealing with offences under the NSL.  As discussed above, the rationale behind the “risk of re-offending” as a ground for objecting bail is forward-looking in that they aim at preventing the incidence of types of behaviour prohibited by the criminal law.  In the context of the NSL, the court’s common law duty in protecting and preserving national security is expressly reinforced by Article 3(3). 

15.  That particular weight ought to be attached to the “risk of re-offending” in the context of national security, in my view, can also be justified by employing conventional reasons against bail which are also recognized in s9G(2), the CPO: (i) the nature of the offences, namely conducts with strike at the foundation of the “One Country, Two Systems” upon which the very existence and stability of Hong Kong as a Special Administrative Region depends; (ii) the likely consequence of any latter offence, namely the grave harm that can be done if the national security is put at peril; and (iii) the probability that people who may commit acts periling national security are committed to certain radical ideologies or positions and/or are acting in unlawful association with others, thus presenting a higher than usual “risk of re-offending”. 

16.  However, Article 42 does not shut out the accused from making a bail application. To the contrary, the Article clearly contemplates that there will be cases where bail may still be granted to the accused and, if need be, with the imposition of tailor-made conditions pursuant to s9D, the CPO. 

17.  As regards the matters concerning the onus or standard of proof, I have already mentioned that the strict rules of evidence are inappropriate in the court’s making of a determination on bail.  In the same vein, the court said in the Habeas Corpus Judgment[22] that:

“[i]t is not helpful to approach this question by reference to considerations such as the burden, or standard, of proof … The judge has to form a view on what the accused person may or may not do in the future. This is not something which is susceptible to exact proof as a matter of fact, but is a matter of judgment which the judge has to make upon an overall assessment of the relevant materials and circumstances before the court.”

Reference was made to the approach there to analogous questions adopted by Lord Bingham of Cornhill in R v Lichniak[23], by Lord Steyn in R (McCann) v Crown Court at Manchester[24], and by Lord Carswell in R (O) v Crown Court at Harrow[25].

18.  Therefore, in my judgment, as held in the Habeas Corpus Judgment, while there may a difference of emphasis between s 9G(1) of the CPO and Article 42 of the NSL, the latter does not introduce any drastic or significant changes to the existing law and practice regarding bail applications.

The present application

19.  That said, I am of the view that the present one falls within the vast majority of cases which can be disposed of by consideration of the conventional risk factors without Article 42.  My reasons are as follows.

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Conclusion

32.    Based on the above, in my assessment, without considering Article 42 of the NSL, having given full credit to the Applicant’s personal background and ties to Hong Kong, bail should be refused on either one of the two aforesaid conventional grounds, namely the “flight risk” and the “risk of re-offending”, not to say when both are present.  Therefore, the present application is dismissed.

33.    General speaking, the reasons for refusing bail should be brief.  This judgment is longer than usual because of the importance of this case as the first of its kind under the NSL.  However, it cannot be emphasized enough that the present state of the evidence may well change over time.  In any event, the trial court is entirely entitled to come to a different view on the strength of the evidence and, in case of conviction, what the sentence should be.  Nothing said in this judgment should be taken as having any influence on the trial court in any way.