HKSAR v. WONG CHI FUNG

HCCP 575/2019

[2020] HKCFI 392

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 575 OF 2019

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REASONS FOR RULING

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Introduction

1.  On 23 January 2020, I dismissed the Applicant’s application for variation of bail seeking permission to leave Hong Kong for a period in February.  I said that reasons for the decision would be handed down in due course.  This, I now do.

Factual background

2.  The following brief chronology of events, which is not in dispute, is gleaned from the respective skeleton submissions of the Applicant and the Respondent. 

3.  On 30 August 2019, the defendant was arrested in relation to an incident which occurred on 21 June 2019 in Admiralty.  On the same day, he was taken to the Eastern Magistracy[1] with three charges laid against him as follows:  

(1)  incitement to knowingly take part in an unauthorised assembly;

(2)  organizing an unauthorised assembly; and

(3)  knowingly taking part in an unauthorised assembly.

The learned principal magistrate[2] (“the Magistrate”) granted the Applicant bail on certain conditions including, among other things, a curfew, a prohibition that he is not to enter a specified area (which covered Queensway) and also a travel restriction that he is not to leave Hong Kong (save and except certain pre-arranged trips[3] which he had informed the Magistrate about).  The Applicant had since made the aforesaid pre-arranged trips and returned.

4.  On 5 October 2019, the Applicant took part in a procession and set foot in Queensway.  The Magistrate therefore issued a warning reminding him not to breach the bail condition again.

5.  On 21 October 2019, upon the Applicant’s application, the Magistrate shortened his curfew period so as to enable him to prepare for the District Council Election.

6.  On 8 November 2019, the Applicant applied to the Magistrate asking that the travel restriction be lifted between 26 November 2019 and 17 December 2019 so that he could attend congressional hearings in European countries and give speeches at overseas university (which included giving a speech to the Oxford Union).  The Magistrate considered the proposed trip dispensable and she refused the application. 

7.  The Applicant then applied to this court for a bail review.  On 19 November 2019, Toh J refused the bail view with detailed written reasons[4] given. 

8.  On 19 December 2019, the Applicant applied to the Magistrate again asking for the lifting of the travel restriction between 9 January 2020 and 23 February 2020.  The Applicant said that he intended to: (1) go to Taiwan between 9 January 2020 and 13 January 2020 to observe the presidential election there; (2) go to the United Kingdom between 4 and 11 February 2020 to give a speech at the Oxford Union; and to promote his newly published book for Penguin Random House.  The Magistrate refused the Applicant’s application, saying that he had made the same application on the same ground, ie, to attend overseas events.  The Applicant’s criminal case was adjourned to 13 February 2020 for plea.

The present application

9.  Upon being refused permission to leave Hong Kong by the Magistrate, the Applicant sought a second bail review.  By the time when the matter was heard before me, the Applicant’s proposed trip to Taiwan had already been overtaken by event.  Therefore, Mr Martin Lee, SC[5], counsel for the Applicant, only relies on the proposed book launch and the proposed speech to the Oxford Union in the United Kingdom for the purpose of the second bail review.   

10.  As to the proposed book launch, Mr Lee submits that the Applicant would risk breaching his contractual obligations to the publisher if he were not allowed to go to the United Kingdom to attend the promotion.  As to the proposed speech to the Oxford Union, Mr Lee submits that it has been the tradition of the event organizer that speakers should deliver their speeches in person. 

11.  This second bail review is opposed by the Respondent.  Ms Christal Chan[6] submits that the present application is of the same nature as the one before Toh J which has already been refused and that there has been no change of circumstances.  Alternatively, Ms Chan submits that the Applicant’s intended speech could be delivered via the Internet and that his desire to participate in the event does not outweigh the public interest of due administration of justice: see Secretary for Justice v Wong Chi Fung[7].  It is also submitted that the Applicant has failed to show the necessity for him to travel overseas for the proposed book promotion, as the agreement between the Applicant and the publisher are couched in flexible terms so that his presence in the United Kingdom for book promotion is not a must.

Legal issues

12.  Mr Lee submits that the present application raises an issue of principle that requires clarification from the court, namely, whether an applicant can make a renewed bail application before a different judge (Judge B) relying on the same ground which has already been considered and rejected by another judge (Judge A) without a material change of circumstances.  Mr Lee submits that there are no statutory provisions prohibiting multiple bail applications based on the same ground and that HKSAR v Siu Yat Leung[8] is wrongly decided insofar it says that there is a common law rule against this.  Alternatively, Mr Lee submits that this second bail review is based on a ground different from that of the first one before Toh J, even though the present application is also about variation of the travel restriction.

13.  Originally, this court had intended to deal with the present application on its own merits without delving into the law.  However, as Mr Lee insists that a clarification of the effect of the relevant statutory provision and the judgment in HKSAR v Siu Yat Leung would be useful for future cases, in deference to the request of counsel I would venture to say a few words on the relevant statutory provisions and legal principles.

Relevant provisions

14.  In common law, there is a presumption of innocence in favour of an accused person, no matter how serious the allegation against him/her is: Woolmington v DPP[9].  This common law presumption of innocence has now been entrenched Article 87 of the Basic Law which gives it a constitutional status:

“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.

Anyone who is lawfully arrested shall have the right to a fair trial by the judicial organs without delay and shall be presumed innocent until convicted by the judicial organs.”

15.  There is also Article 28 of the Basic Law which provides for the freedom of the person:

Article 28

The freedom of the person of Hong Kong residents shall be inviolable.

No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment. Arbitrary or unlawful search of the body of any resident or deprivation or restriction of the freedom of the person shall be prohibited.  Torture of any resident or arbitrary or unlawful deprivation of the life of any resident shall be prohibited.

16.  Because of the aforesaid constitutional rights entrenched by the Basic Law, an accused must not be deprived of his liberty pending trial without good, valid and sufficient reasons and bail pending trial should be the normal rather than exception.  In the same vein, Article 5(3) of the Hong Kong Bills, Cap 383, says:

“Liberty and security of person

...

(3) Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.”

17.  As regards specific statutory provisions on bail, they are contained in Part IA of the Criminal Procedure Ordinance (“CPO”), Cap 221, which was enacted in 1994^[10] to implement the recommendation of the Law Reform Commission in its Report on “Bail in Criminal Proceedings”^[11]. By virtue of s9D, CPO an accused is given a right to bail but it may be refused in the particular circumstances as set out in s9G, CPO.  Section 9G(1) provides that the court need not admit an accused to bail if it appears that there are substantial grounds for believing that he will (a) fail to surrender to custody, or (b) commit an offence while on bail, or (c) interfere with a witness or pervert or obstruct the course of justice.  As provided by subsection (2), the court in forming its opinion under subsection (1) may have regard to:

“(a) the nature and seriousness of the alleged offence and, in the event of conviction, the manner in which the accused person is likely to be dealt with;

(b) the behaviour, demeanour and conduct of the accused person;

(c) the background, associations, employment, occupation, home environment, community ties and financial position of the accused person;

(d) the health, physical and mental condition and age of the accused person;

(e) the history of any previous admissions to bail of the accused person;

(f) the character, antecedents and previous convictions, if any, of the accused person;

(g) the nature and weight of the evidence of the commission of the alleged offence by the accused person;

(h) any other thing that appears to the court to be relevant.”

18.  As such, s9D gives rise to a “presumption of bail” which the prosecution has to rebut if they object to bail being granted to the accused.  As Zervos J(as he then was) said in HKSAR v Vu Thang Duong[12]:

“The relevant provisions allow the court to take into account a range of relevant matters when deciding whether or not to grant bail. 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. An unreasonable delay in custody, in the particular circumstances of the case, may be a factor in favour of bail. Of course, such a factor would be taken into account together with all other relevant factors in deciding whether or not to grant bail.”

19.  A court in deciding whether or not to grant bail to a particular accused has to perform a balancing exercise, always bearing in the forefront of its mind the accused’s presumed right to bail.  Moreover, it may be that any attendant risks of the accused absconding, committing an offence whilst on bail or interfering with witnesses and so forth can be ameliorated by the imposition of suitable conditions tailored to meet the circumstances of the case and those of the accused.  In such cases, s9G(2) provides that bail may be granted subject to conditions.  The question then for the court is whether any conditions to be imposed are “necessary”.   Thus, in Tam Tak Chi v HKSAR[13], Pang J (as he then was) has the following to say:

“14. I repeat what the Divisional Court said in Mansfield Justices (ibid)^[14]:

“the question the justices should ask themselves is a simple one: ‘Is this condition necessary for the prevention of the commission of an offence by the defendant when on bail?’ They are not obliged to have substantial grounds. It is enough if they perceive a real and not a fanciful risk of an offence being committed.”

15. Obviously, for the Lordships, “necessary” in the present context means there is a real risk. The word does not carry any meaning that goes beyond that equation. If there is a real risk of a fresh offence then there is need for a condition. The remaining question is one of proportionality.”

20.  In case an accused is refused bail or variation of a bail condition by a District Court Judge or a magistrate, he may apply for a review of the refusal pursuant to s9J(1) of CPO.  On the hearing of such a bail review, a judge may confirm, revoke or vary the decision, and may make such other order in the matter including an order as to costs as he thinks just.  It has been consistently held, to which I humbly agree, that a judge sitting on a bail review is not exercising an appellate jurisdiction, but is obliged to review the matter afresh in the application: see HKSAR v Siu Yat Leung[15] and Tam Tak Chi v HKSAR[16].  Therefore, the success of a bail review does not necessarily imply any error or mistake on the part of the court below.

Renewed applications under CPO

21.  Prior to the coming into effect in 1994 of Part 1A, there was an old s12B[17] in CPO which read:

“Restriction on multiple bail applications

12B. If an accused person is refused or denied bail by the court or a judge, he shall not thereafter be entitled to make a fresh application for bail –

(a) before the commencement of his trial, except to the court or a judge and only if he satisfied the court or judge that since the refusal or denial there has been a material change in relevant circumstances; or

(b)   during his trial, except to the court conducting his trial.”

(Emphasis supplied)

22.  Therefore, before 1994 an accused who had been refused or denied bail pending trial by the court or a judge would not be allowed to make a fresh application for bail before trial unless there was a material change in circumstances after the refusal or denial.  One objective of that provision was to prevent a proliferation of bail applications.  Without such a provision bail applications could and probably would be made to successive judges on grounds both speculative and even frivolous.  There is always a risk that an applicant without a material change in his circumstances may make multiple applications with the hope that he would eventually appear before a judge who may view his case more sympathetically than a predecessor: see R v Ng Yiu-fai[18];and generally Archbold Hong Kong 2020, at para 3-30.   

23.  Now that the old s12B has been repealed, repeated applications for bail are addressed by s9G(11) which reads:

“(11) If at any hearing the court refuses to admit an accused person to bail the court shall, at each subsequent hearing while the accused remains in custody, consider the question of whether or not he ought to be admitted to bail and—

(a) on the first occasion after that upon which the court first refused to so admit, the court shall hear any argument as to fact or law put to it in support of his admission to bail, whether or not it has previously heard that argument;

(b) on the second or any subsequent occasion after that upon which the court first refused to so admit, the court need not hear any argument as to fact or law put to it in support of his admission to bail, if it has previously heard that argument.

24.  There is, however, a significant difference between the old s12B and the new s9G(11).  Whilst the former disallowed an accused making repeated bail applications at all in the absence of any material change in circumstances, the latter does not have the effect of limiting the right of an accuse to apply for bail: cf R v Dover and East Kent JJ, Ex P Dean[19]. What the new s9G(11) does is simply to sanction the court on “the second or any subsequent occasion” not to entertain any argument which has previously been heard and decided against, if that argument has already been put “on the first occasion after that upon which the court first refused to so admit”. Nevertheless, the court hearing a bail application a discretion whether or not to entertain an argument which has already been put to it twice before without success.  I draw some comfort from the fact that this interpretation of s9G(11) is consistent with the stance of the Administration at the time when the then draft bill was presented to the Legislative Council: see the Official Record of Proceedings of the Hong Kong Legislative Council on 22 June 1994[20].  

25.  I note also that a “material change in relevant circumstances” is no longer expressly included in the formulation of the new test under s9G(11).  To the contrary, the new test actually requires the court to hear the same argument put by a bail application in support of his application, even though it has already been rejected once: s9G(11)(a).  That said, in my humble view the presence or otherwise of a “material change in relevant circumstances” can still be relevant when the court considers whether or not to exercise its discretion under s9G(11)(b) and the weight to be attached to this factor would be case and accused specific.

26.  Mr Lee submits that the word “court” used in s9G(11) should be interpreted as a reference to individual judicial officers, so that the restrictions contained in s9G(11)(b) is only applicable when the same judicial officer has already heard the same ground put forward by an accused twice and decided it on both occasions.  It is further submitted, so the argument goes, that no matter how many times a ground has been put forward and refused by other judicial officers, an accused still has the right to run the same ground all over again before a different judicial officer and the latter is bound to consider it.

27.  With respect, I am unable to accept the above submission.  By adopting a purposive approach of interpretation as mandated by the Court of Final Appeal in HKSAR v Cheung Kwun Yin[21]and Yung Chi Keung v Protection of Wages on Insolvency[22], I agree with Deputy Judge McCoy, SC in HKSAR v Siu Yat Leung, ante [23]that the purpose of the new statutory test is to ensure that access to the Court is not a “revolving door” and, adopting the words of Deputy Judge Jones in R v Ng Yiu Fai, the new statutory test is “a sensible and necessary adjunct to a coherent legal system, which would otherwise be prey to a proliferation of speculative bail applications on issues already decided”.  A serious issue of judicial resources is at stake in that deserving cases may be needlessly postponed by repeated and legally frivolous applications by others for bail.  The interpretation advocated by Mr Lee, on the other hand, carries with it the danger of encouraging “forum shopping”, which is the very abuse that the Legislature seeks to avoid by the enactment of s9G(11). 

28.  Secondly, as observed by the learned editor of Archbold Hong Kong 2020, there is an obvious danger that the subsequent court may act as an appellant court when no such jurisdiction has been conferred by legislation[24].  That may be the reason why Deputy Judge McCoy says that at common law the absence of any material change in relevant circumstances is a matter which goes to jurisdiction rather than discretion.

29.  I echo what has been pointed out by Deputy Judge McCoy in HKSAR v Siu Yat Leung that the s9G(11) limitations are directed at the primary decision-making court under s9D only, and not the Court of First Instance when exercising the review jurisdiction given by s9J.  The word “court” in Part 1A, CPO is given an extended meaning in s9C so as to include “the District Court and a magistrate”.  It is clear to me that, consistent with the legislative purpose, the word “court” in s9G refers to different levels of courts rather than to individual judicial officers, so that a judge who is presented with a ground which has previously been considered and rejected twice or more by his or her colleagues in same court is entitled not to entertain it by virtue of s9G(11)(b).

Repeated bail applications under common law

30.  Mr Lee submits that an accused who has been refused bail has unlimited right at common law to apply to the High Court for bail under its inherent jurisdiction, even when he is unable to establish “a material change in relevant circumstances”.  Mr Lee further submits that HKSAR v Siu Yat Leung is wrongly decided insofar as it holds that regarding the High Court’s inherent jurisdiction to grant bail the absence of “a material change in relevant circumstances” is a matter of jurisdiction and not discretion.  It is submitted that the Deputy Judge errs when he says that the repealed s12B was declaratory of the true common law position and it is noted that the learned deputy judge has not provided any case authorities for his proposition.  It is contended that there is no such common law rule.  Mr Lee seeks to rely on the above-mentioned Law Commission’s Report on “Bail in Criminal Proceedings” in 1989 where it says,

“11.8 The present law

During the course of criminal proceedings it is common for an accused to make many appearances before a court. He first appears as soon as practicable following his being charged by the police. In many cases no plea is taken on that occasion and he is remanded for a week or more to seek legal advice. On his re-appearance he may plead guilty or not guilty. In the case of a guilty plea he may be further remanded while the court obtains information, such as a probation report, which is relevant to sentence. In the case of a not guilty plea he is remanded to a date for a hearing. It is common for that date to be further postponed, so it is possible he will face further remands.

If bail is refused at any of these appearances, the accused may wish to renew his application on a later occasion. The common law rule used to be that a defendant could always continue to apply to a judge for bail. This right has now been severely curtailed.

          As far as applications to the High Court are concerned, the former wide general power of a judge to entertain renewed applications for bail, even though earlier applications may have been refused by magistrates or other judges, is now substantially whittled down by the new section 12B of the Criminal Procedure Ordinance which places restrictions on multiple bail applications.”   

(Emphasis supplied)

31.  Besides, the Commission referred to the judgement in R v Nottingham Justices Ex P Davies[25]where the court ruled that on and after the third successive application magistrates should refuse to consider an application unless there has been a change of circumstances on the application of “the principle of res judicata or something analogous to it”.  That judgment was criticized by the Commission on the basis that a bail court does not make a finding of what the accused has done but it makes a prediction about what the accused may be.  The Commission also pointed out that even in the Nottingham case, the court was prepared to entered the application twice. 

32.  I can see the force of the statement of the Commission quoted.  However, the Commission was only talking about the common law position of a bail applicant prior to the old s12B.  The Commission did not address whether or not the development of the common law in the field of bail had then been informed by the old s12B.  Admittedly, the interaction between statute and case law is “a matter of some complexity”[26].  There are also some case authorities to the effect that the development of the common law should proceed upon a parallel rather than a diverging course in relation to statute law[27].  That said, in my humble view, for the purpose of disposing this application it matters not what an accused’s common law right regarding repeated bail applications had used to be or whether that the old s12B was simply declaratory of the common law position.   My reasons are as follows:

(i)  The common law right which Mr Lee contends for, had it ever existed, would have been overridden and ceased to be in force since 1979 after the old s12B had come into operation.  As such, the subsequent repeal of that provision in 1994 would not have the effect of reviving anything not in force or existing at the time at which the repeal took effect: see s23(a), the Interpretation and General Clauses Ordinance, Cap 1[28].

(ii)  For the sake of argument, even assuming that the common law as contended for by Mr Lee could survive the old s12B, it should now be read subject to the provisions of s9G(11).  

(iii)  In any event, at the factual level the present application is based on new grounds (namely the proposed book launch and the invitation from the Oxford Union) which are different from those considered and rejected by Toh J, so that the Applicant is not making repeated bail applications on the same ground. Therefore, the Applicant is simply not required to show “any material change in relevant circumstances” and the issue would be academic here.

The present application

33.  It should be noted that the present application is not about the granting or refusal of bail but a proposed variation of a bail term.  There is a significant difference between the two.  As said by the Court of Appeal in SJ v Wong Chi Fung, ante:

“(2) When it is said that there is no absconding risk, it is necessarily an assessment based on the circumstances that were made known to the court at the time of the bail. However, circumstances may change after bail is granted and if the change is material, the risk of absconding may require a different assessment. Leaving the jurisdiction is self-evidently a material change of circumstances. The appellant will then be beyond the immediate reach of the Hong Kong judicial system. The notion of not returning to Hong Kong to face the possible prospect of an unsuccessful appeal may become tempting. By prohibiting the appellant from leaving Hong Kong, such a possible increase in flight risk is prevented.

Although the above is said in the context of a bail pending appeal, what is said about the distinction between an application for bail and an application for variation is also applicable to the present case.

34.  The Court of Appeal in that case has also held that the public interest in due administration is a relevant consideration.  In this regard, I am alive to the fact that in case of a bail pending application, the presumption of innocence is not engaged and that the aspects of public interest in due administration of justice concerned may not be the same. 

35.  With respect, full weight should also be given to the comments made in Archbold Hong Kong 2020 that:

“The condition in s9D(3)(b)(ii) – not to leave Hong Kong, may be justified in a given case only if there are clear indications of a genuine public interest which outweigh the person’s right of freedom of movement: Miazdzyk v Poland (ECHR App No 23582/07, [35]).

However, in the final analysis the issue about the necessity and proportionality of a travel restriction on bail is always case-specific question.

36.  This leads me to the merits of the grounds put forward by the Applicant for the present application.

The first ground: the proposed book launch

37.  The Applicant says that he has to go to the United Kingdom in order to fulfil his contractual obligation to the publisher to promote the new book of which he is one of its author.  The relevant clause of the contract says:

“4.1 To ensure maximum effective promotion of the Work Wong Ci Fung will, subject to his prior commitments, personally promote the Work for three complete working days (it being understood that a workday day comprises of seven hours) on and immediately prior to First Publication of each of the hardback and paperback editions on dates to be confirmed by us. Such promotion to include print, broadcast online and in person and may include travel to the UK, if he is safely able to and subject to any unavoidable prior commitments ...” (Emphasis added)

38.  The first thing to note from the above clause is that, as Ms Chan submits, it is so loosely drafted that it gives the Applicant a lot of flexibility whether or not to go to the United Kingdom.  Not only that the word “may” rather than “shall” is chosen and put before “travel to the UK”, but also the Applicant’s obligation to comply with his bail terms could well be a “prior commitment” which prevents him from travelling. 

39.  Secondly, I note that the contract with the publisher was signed on 23 October 2019 which was almost two months after he was granted bail on 30 August 2019 by the Magistrate with the travel restriction imposed.  As such, the Applicant could not expect that the travel restriction would be lifted when he signed the contract with the publisher.  If the Applicant faces any risk of being sued for breach of contract, he knowingly put himself into that position.

The proposed speech

40.  I have taken into account that the Applicant were given permissions to leave Hong Kong before and then returned.   However, in my assessment, whilst the risk may have been reduced, it has not vanished. I have also taken into account that there is now a letter from the Oxford Union saying that “traditionally speakers are invited to Union events to speak in-person and to facilitate face-to-face-exchanges without our members”. However, I agree with what was said by Toh J that:

“18. The Court of Appeal, in the Wong Chi Fung case[29] referred to, has said that the case of instantaneous communication via the Internet, shows there is no bar to the respondent, and in this case the applicant, participating and contributing to the conferences, presentations and, may I also add, the speeches he is supposed to give at the Oxford Union, without being physically present. So, really, there is no necessity for the applicant to be there.”

Similarly, I can see no necessity for the Applicant to be personally in the United Kingdom for the event.  

41.  Secondly, the Applicant is asking for permission to leave Hong Kong between 4 and 11 February 2019.  However, he is due to attend the magistracy for plea on 13 February 2019.  In the present case, that the public interest in due administration of justice requires that the date for plea should be kept as scheduled without delay.   However, the Applicant’s proposed itinerary simply does not allow a sufficient buffer between his proposed return day from the United Kingdom and the coming court attendance to cater for any contingency[30].

42.  I have taken into account the principle stated in the case of Miazdzyk.  I note that in Miazdzyk, the accused was a French national whose life and business prior to his arrest in Poland was based in France.  He was said to be in a poor state of health.  The travel restriction imposed on him had lasted for over 5 years and had the effect of preventing him from seeing his three children and friends and accessing his right to medical care in France[31] for a prolonged period.  The Applicant’s circumstances are nowhere near to those in Miazdzyk.

Conclusion

43.  Having considered all the grounds put forward by Mr Lee for the Applicant, for the reasons given above, I consider that the travel restriction imposed on the Applicant is fully justified and that his present application for variation should not be acceded to.  Therefore, I refuse his present application accordingly.