HKSAR v. LAI MAN LING AND OTHERS

DCCC 854/2021

[2022] HKDC 355

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 854 OF 2021

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REASONS FOR RULING

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1.  The 5 defendants herein, i.e. D1 to D5, face one charge of conspiracy to print, publish, distribute, display and/or reproduce seditious publications, contrary to sections 10(1)(c), 159A and 159C of the Crimes Ordinance, Cap. 200.

2.  This case first came before the Magistrates’ Court on 23 July 2021.  By an order made on 24 September 2021, the learned Acting Chief Magistrate Mr. Peter Law ordered this case to be transferred to the District Court for plea on 12 October 2021.

3.  By a letter dated 5 October 2021 from the prosecution to the Registrar of the District Court, the prosecution requested this case to be handled by a designated judge in the District Court pursuant to Article 44(3) of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (“the NSL”) on the ground that this case was for proceedings in relation to the prosecution of an offence endangering national security.  This letter was copied to the respective legal representative acting for each of the defendants at that point of time.

4.  This case came before Her Honour Judge Woodcock in the District Court on 12 October 2021.  D1, D2 and D4 opposed this case to be handled by a designated judge in the District Court.  D3 and D5 did not indicate their stance at that stage.  Her Honour Judge Woodcock fixed 10 December 2021 for legal submissions on this issue.

5.  On 10 December 2021, Her Honour Judge Woodcock adjourned the hearing to 24 January 2022 because some of the defendants were not ready with their submissions.

6.  This matter came before me on 24 January 2022. 

7.  Mr. Vincent Lee, Senior Public Prosecutor, submitted that this case had to be handled by a designated judge in the District Court.

8.  D1 and D2 maintained their objection.  Their submissions were advanced by Mr. Robert Pang, Senior Counsel, leading Ms. Yvonne Leung, the learned counsel for D2, and adopted by Mr. Peter Wong, the learned counsel for D1.

9.  Mr. Anson Wong, the learned counsel for D3, said that he objected to the prosecution’s application in principle but would not make any submission.  He asked to be put on record that he might raise argument in other cases under section 10 of the Crimes Ordinance.

10.  Mr. Alan Ng, the learned counsel for D4, confirmed that D4 no longer opposed the prosecution’s request. 

11.  Mr. Steven Kwan, the learned counsel for D5, said that while D5 had no objection for this case to be handled by a designated judge, D5 objected to the prosecution making a request to the court for listing all hearings of this case before a designated judge.

Ruling

12.  After hearing submissions from all parties, I ruled that all proceedings relating to the prosecution of the present charge against the 5 defendants should be handled by designated judges in the District Court pursuant to Article 44(3) of the NSL. 

13.  I also stated that the reasons for this Ruling would be handed down in writing.  Here are the reasons.

Article 44(3) of the NSL

14.  NSL 44(3) is in the following terms:

“The proceedings in relation to the prosecution for offences endangering national security in the magistrates’ courts, the District Court, the High Court and the Court of Final Appeal shall be handled by designated judges in the respective courts.”

15.  “Designated judges” are the judges in each level of courts designated by the Chief Executive to handle cases concerning offences endangering national security pursuant to Article 44(1) of the NSL.

16.  By using the word “shall”, NSL 44(3) has made it mandatory that all proceedings relating to the prosecution for “offences endangering national security” in each level of courts must be and can only be handled by the designated judges in that level of courts. 

17.  That NSL 44(3) is a mandatory provision has not been disputed by any of the defendants.  Hence, the only issue was whether the present case was for the prosecution of “an offence endangering national security” that triggered the engagement of NSL 44(3). 

Submissions of the Prosecution

18.  Mr. Lee submitted that only the designated judges in the District Court could handle this case because (a) NSL 44(3) applied not only to offences created under the NSL, but also to other offences endangering national security under the laws of HKSAR; (b) the sedition offence under section 10 of the Crimes Ordinance was by its nature an offence endangering national security under the laws of HKSAR, and (c) the facts alleged against the defendants showed that they had committed this offence endangering national security.

19.  Mr. Lee further submitted that the Appeal Committee of the Court of Final Appeal (“CFA”) had effectively ruled all these issues in favour of the prosecution in HKSAR v Ng Hau Yi Sidney[1].

The CFA determination in Ng Hau Yi Sidney

20.  This case involved an application to the CFA by D3 in this case for leave to appeal against a point of law relied upon by Mr. Justice Andrew Chan when His Lordship rejected D3’s application for bail. 

21.  The issue before the CFA was whether the more stringent threshold requirement for granting bail under NSL 42(2) was applicable to offences not created by the NSL, such as an offence under section 10 of the Crimes Ordinance. 

22.  The CFA dismissed D3’s application and handed down its Reasons for Determination (“the Reasons”) on 14 December 2021. 

23.  The CFA ruled that when a provision in the NSL referred to “offences endangering national security”, it was referring to the offences created by the NSL as well as other offences endangering national security under the existing laws of the HKSAR unless the contrary is shown in any particular provision.  The following paragraphs in the Reasons were noteworthy:

“Viewed purposively, the intent of the NSL is plainly for national security to be safeguarded by the complementary application of the laws which it creates with the existing laws of the HKSAR, such as those contained in Part II of the Crimes Ordinance.” (para. 24) (Italics supplied)

 “When the NSL intends particular provisions to apply or to relate only to those offences which it has created, it makes it clear, referring specifically to “this Law” (as opposed to the laws of the HKSAR) in such cases.” (para. 25)

“Where the NSL refers to “offence[s] endangering national security” without distinguishing between those offences which it creates and other offences of that nature, subject to any contextual or purposive arguments to the contrary which may arise in any particular case, it lends itself to the construction that it is referring to all such offences without distinction. Examples include NSL 35 which disqualifies persons “convicted of an offence endangering national security by a court” from holding certain public offices; NSL 41 which requires the consent of the Secretary for Justice for prosecutions for offences endangering national security to be instituted; NSL 43 which makes available investigative measures under HKSAR laws “when handling cases concerning offence[s] endangering national security”; NSL 44 which deals with the designation of judges to handle “cases concerning offence[s] endangering national security”, and NSL 45 which allocates jurisdiction to deal with such offences to HKSAR courts at each level.” (para. 27) (Italics supplied)

“It follows that construing NSL 42(2) in the context of the NSL as a whole clearly supports the conclusion that the construction adopted in the Lai case applies both to offences safeguarding national security created by the NSL and offences existing under HKSAR law. There is no reasonably arguable basis for the applicant’s proposition that the more stringent threshold for the grant of bail is confined to offences created by the NSL.” (para. 29)

24.  The CFA had also determined that it was not reasonably arguable that the sedition offence under section 10 of the Crimes Ordinance was not “an offence endangering national security”. The following paragraphs of the Reasons were noteworthy:

 “As noted above, in the Lai case, the Court identified the “offences of treason, incitement to disaffection or sedition under Parts I and II of the Crimes Ordinance” as instances of offences endangering national security under the laws in force in the HKSAR, as Mr. Pun SC accepted.” (para. 30)

“That the NSL should be construed to include the section 10(1)(c) offence as an offence endangering national security appears inescapable. As previously indicated, NSL 7 bears on this question. It requires the HKSAR to “complete, as early as possible, legislation for safeguarding national security as stipulated in the Basic Law … and [to] refine relevant laws”. As we have seen, that stipulation is in BL 23 which requires the HKSAR to enact (among other laws) laws to prohibit any act of sedition. The combined effect of BL 23 and NSL 7 is therefore to make it clear that a prohibited act of sedition – including an offence contrary to section 10(1)(c) of the Crimes Ordinance – qualifies as an offence endangering national security.” (para. 31)

Submissions of D1 and D2

25.  It was argued in the first written submissions of D1 and D2 that NSL 44(3) did not apply because the sedition offence under section 10 of the Crimes Ordinance was not an offence created by the NSL.  The submissions were filed before the CFA made its determination in Ng Hau Yi Sidney.

26.  In light of the determination in Ng Hau Yi Sidney, Mr. Pang, SC, accepted that this ground of objection had to be discarded.

27.  In the supplemental written submissions filed on behalf of D2, it was submitted that the CFA determination had only limited bearing on the issue under consideration now, i.e. the applicability of NSL 44(3) to the present case, whereas the issue before the CFA was a different one, which was the applicability of the bail threshold in NSL 42(2). 

28.  It was contended in D2’s supplemental written submissions that the CFA had in Ng Hau Yi Sidney left room for argument against the applicability of the NSL articles in a particular case based on contextual or purposive arguments because the CFA had stated in paragraph 27 of the Reasons (cited above) that whether an offence was an offence endangering national security was “subject to any contextual or purposive arguments to the contrary which may arise in any particular case”.  It was submitted that when the facts and allegations in the present case were taken into account, D2 was in a position to put forward the contextual and purposive argument that this case could not be a case concerning an offence endangering national security.

29.  Mr. Pang, SC, elaborated the defence arguments in his oral submissions.  He argued that the CFA determination did not give the prosecution a blanket authority to say that since the charge was brought under section 10 of the Crimes Ordinance, the offence involved must be an offence endangering national security. 

30.  Mr. Pang, SC, then referred to paragraph 27 of the Reasons and submitted that what the CFA had said was that where the NSL referred to the words “offences endangering national security”, it lent itself to a construction that it was referring to all offences both within the NSL and outside it so long as they were offences endangering national security, but the CFA had not said definitively that an offence under section 10(1)(c) of the Crimes Ordinance was an offence endangering national security because the CFA said that it was always subject to the contextual or purposive arguments in any particular case.

31.  On this basis, Mr. Pang, SC, stressed that one had to look at the circumstances of each case.  He submitted that publishing a seditious publication might be an offence endangering national security but it depended on the circumstances of the case. 

32.  Mr. Pang, SC, submitted that in order to determine whether this case concerned an offence endangering national security, it raised the questions what national security was, and whether the alleged seditious publication endangered national security.  He argued that it would be wrong to refer to the National Security Law of the People’s Republic of China (“the National NSL”) for the definition of “national security” because the National NSL was not a law applied to the HKSAR, and the definition of “national security” in the National NSL had also not been imported into the Hong Kong NSL, and that definition was in vague terms and offended the principle of legal certainty.  Mr. Pang, SC,  argued that the only possible reference to the definition of “national security” was in paragraph 6 of the 28 May 2020 Decision of the NPC that led to the promulgation of the Hong Kong NSL, and the prohibitive acts and activities were those relating to splitting the country, subverting state power, organizing or carrying out terrorist activities and other behaviours that seriously endangered national security, as well as activities of foreign or external forces interfering into the affairs of the HKSAR.  Mr. Pang, SC, argued that the facts alleged in the present case did not involve any of these prohibitive acts or activities, and for this reason, the present case did not fall within the definition of an offence endangering national security.

Reasons for Ruling

33.  D1 to D5 are charged with one count of conspiracy to commit an offence under section 10(1)(c) of the Crimes Ordinance.  It is alleged that they and other persons had conspired to print, publish, distribute, display and/or reproduce seditious publications with the requisite intention as particularized in the Amended Charge Sheet.  In my judgment, whether or not this offence is an “offence endangering national security” depends on the elements that constitute the offence.

34.  The defendants are alleged to have conspired to print, publish, etc. of “seditious publication”.  Section 10(5) of the Crimes Ordinance provides that “seditious publication” means a publication having a seditious intention.  “Seditious intention” is defined in section 9(1) of the Crimes Ordinance.  According to this definition, seditious intention may appear in one or more of the 7 forms listed in sub-subsections (a) to (g) of section 9(1).  It is not necessary to recite each and every of these 7 forms of seditious intention here.  Suffice to say that each of these forms of intention if carried out will have serious adverse impacts on the political, social and economic stability and development of HKSAR which is an inalienable part of the People’s Republic of China, and the potential victims of the offence are the Central Authorities of the People’s Republic of China as well as the Government and the inhabitants of the HKSAR, or any of them.  In the Amended Charge, it is alleged that the defendants have the seditious intention falling within sections 9(1)(a), (c), (d), (f) and (g) of the Crimes Ordinance.  In my judgment, it is beyond argument that the defendants are charged with an offence which is an offence endangering national security.

35.  Furthermore, the authorities have consistently considered a seditious offence to be an offence endangering national security.  Article 23 of the Basic Law provides that “the [HKSAR] shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government ...”.  In HKSAR v Lai Chee Ying[2], the CFA said it was difficult to envisage the accused committing acts endangering national security which would not amount to offences under the NSL or under HKSAR law such as the offences of treason, incitement to disaffection or sedition in Parts I and II of the Crimes Ordinance[3]. In Ng Hau Yi Sidney, Mr. Hectar Pun, SC, when appearing before the CFA on behalf of D3 herein, accepted that offences under Parts I and II of the Crimes Ordinance including sedition as instances of offences endangering national security under laws in force in HKSAR[4]. It is noteworthy that Part II of the Crimes Ordinance is entitled “Other Offences Against the Crown”, which after 1 July 1997 has to be construed to mean other offences against the Central People’s Government of the PRC: section 2A(3) of the Interpretation and General Clauses Ordinance (Cap 1) and its Schedule 8.  Furthermore, the matter must be put beyond doubt by the CFA when it stated in paragraph 31 of the Reasons:

“The combined effect of BL23 and NSL 7 is therefore to make it clear that a prohibited act of sedition – including an offence contrary to section 10(1)(c) of the Crimes Ordinance – qualifies as an offence endangering national security.”[5]

36.  Mr. Pang, SC, together with Ms. Leung, submitted that the CFA in Ng Hau Yi Sidney had left room for the defendant to raise a contextual or purposive argument to show that the offence charged in the present case was not an offence endangering national security.  They argued that in the context of this particular case when the facts and allegations were taken into account, this case did not concern an offence endangering national security.  With due respect, I did not share their interpretation of paragraph 27 of the Reasons. 

37.  In my view, what the CFA had said in paragraph 27 of the Reason was simply that when the NSL referred to “offences endangering national security” without distinguishing between those offences created by the NSL itself, and other offences of that nature, it lent itself to the construction that it was referring to all such offences without distinction, and the sentence “subject to any contextual or purposive arguments to the contrary which may arise in any particular case” meant only that there might be occasions when it was necessary to interpret a particular Article under the NSL, in light of its context and purpose, to mean that its application was restricted only to the offences created by the NSL, or restricted only to the other offences endangering national security under the existing laws of the HKSAR, but it was not to be applied to all of them, even though that particular Article just referred to “offences endangering national security”.  In my view, that sentence could not be taken to mean that a particular kind of offence, for instance, sedition, might be regarded as an offence endangering national security in some cases, but not in other cases, depending on the particular facts and circumstances of each individual case.

38.  Furthermore, if the defence submissions were correct, the following scenario would happen even within the same case.  When a seditious offence such as the charge in the present case is brought before the Court, at the bail application stage, the offence charged must be regarded as an offence endangering national security according to the conclusive ruling of the CFA so that NSL 42(2) is engaged, and a designated judge must therefore preside over any bail application by a defendant due to the mandatory requirement in NSL 44(3); but when it comes to the trial proper, this offence is not regarded as an offence endangering national security so that NSL 44(3) is not engaged, and the trial needed not be handled by a designated judge.  In my view, it is absurd and illogical that it is mandatory for one part of the case to be dealt with by a designated judge, but it is not so for the other part of the same case, not to mention that the trial proper can be regarded as the most important part of any criminal proceedings.

39.  As to the submission made on behalf of D2 that in the context of this particular case that the offence charged was not an offence endangering national security, it was in effect a submission that the defendants had not in law and/or in fact committed the offence charged, so that there was no offence endangering national security.  It was not necessary for me to decide one way or the other whether this submission was correct.  Suffice to say that this submission was irrelevant to the issue under consideration.  What I needed to consider was the nature of the offence charged, i.e. whether or not it was an offence endangering national security, and I was not required at this stage to consider the merits of the prosecution case and/or the defence case.

40.  It was of course not to say that this Court would not consider the facts alleged by the prosecution against the defendants at all at this stage. However, the function of the Court at this point of time was simply to ensure that the alleged facts, taken at its highest, might support the offence charged which was by its nature an offence endangering national security.  In the present case, the facts alleged by the prosecution plainly support the charge.

41.  For reasons aforesaid, I was completely satisfied that the defendants are all charged with an offence endangering national security.  Hence, NSL 44(3) is engaged, and all proceedings relating to the prosecution of the present charge should be handled by designated judges in the District Court. 

Post-script

42.  It followed from the above ruling that it was proper for the prosecution to make a request by its letter dated 5 October 2021 to the Registrar of the District Court for this case to be listed for hearing before a designated judge in the District Court.

43.  The criticism levied by the defence against the prosecution that this request was a judge-shopping exercise was wholly unjustified.  It was readily apparent from the letter itself that the prosecution made this request because of their interpretation of NSL 44(3) which made it mandatory for all cases concerning offences endangering national security to be handled by designated judges.  Besides, the prosecution had never asked for the case to be heard by any particular judge.  It only asked for the case to be heard by the group of judges who had the requisite legal power and authority to handle the case.  In my view, it was clear beyond doubt that this request was made by the prosecution solely for the purpose of ensuring that the ensuing legal proceedings would be conducted in accordance with the requirements of the law.  The letter was copied to all legal representatives acting for all the defendants at the time when the request was made.  If all or any of the defendants disagreed with the prosecution’s interpretation of the law, they could always put forward their own interpretation and ask the Court to make a ruling.  Accusation against the prosecution that it had engaged in judge-shopping without any evidence to substantiate that accusation should never have been made.

44.  In any legal proceedings, whether or not the presiding judge has the jurisdiction to hear the case is an important matter that has to be resolved the sooner the better. If such an issue has arisen, the prosecutor in charge of the criminal prosecution must have the primary duty to raise the issue with the Court to ensure that the ensuing legal proceedings will not be rendered null and void.  If the prosecutor has not done so but defence counsel has spotted the issue, it will be incumbent upon defence counsel, in performing his duty towards the Court, to raise that issue with the prosecutor and/or the Court.