HKSAR v. Lee Ho Ming

HCCP 500/2019

[2019] HKCFI 2606

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 500 OF 2019

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REASONS FOR DECISION

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Introduction

1.The applicant is charged with one count of riot, contrary to section 19(1) and (2) of the Public Order Ordinance, Cap 245. He was granted bail and the case has been adjourned to 25 November 2019. It is his application to vary the bail conditions imposed by the learned magistrate in that he submitted that the following bail terms should be lifted:

(1)  not to leave Hong Kong;

(2)  to obey a curfew from 9:00pm to 6:00am; and

(3)  not to appear in the Tuen Mun District, or alternatively not to enter a hundred meters from the location of the scene ie Trend Plaza, except for study, medical reason or for obtaining legal advice, or for transport, or in transit.

2.The applicant is 19 years of age and is a year two engineering student in IVE.  The applicant has a clear record.

Legal principles

3.It is not disputed that conditions to bail may be imposed if it appears “to the court to be necessary to secure that the person admitted to bail will not commit an offence while on bail”. (see section 9D(2)(b) of the Criminal Procedure Ordinance, Cap 221)

4.As Mr Justice Pang said in Tam Tak Chi, Cheung Felix Kar Hang, Shum Lester, Lo Yin Kwan v HKSAR (unreported HCMP 3118/2014) at para 15 said:

“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.”

Discussion

5.It is clear that the learned magistrate in imposing the conditions was concerned that the place where the applicant was arrested was a “riotous area” and that there was a risk of re‑offending and that there was no reason for a student to be on this street from 9:00pm to 6:00am, nor for him to appear in Tuen Mun.

6.Mr Tang argued, on behalf of the applicant, that the curfew time was unusual because the normal curfew imposed by other magistrate was from 12:00am till 6:00am.  Mr Tang also submitted that the IVE programme requires that the applicant attends workshops organised by the programme in Hong Kong International Airport and that such workshops are normally scheduled in the night hours that is 11:00pm to 4:00am.  As can be seen from the schedule attached to Mr Tang’s submission which reflected this schedule in March 2019, I may say here that the schedule requires the participants to meet to take a shuttle bus either from Admiralty or Sai Yee Street in Mongkok and the return shuttle bus from the Airport will deposit the participants in Admiralty or also at the same place in Sai Yee Street.  Mr Tang also submitted that the applicant may wish to visit the Tuen Mun areas with his legal team to prepare for his case.

7.Ms Parwani, fairly conceded that should the applicant need to visit the Tuen Mun area, particularly the area of the alleged offence with his legal team, it would be best if he could inform the duty officer at the Ma On Shan Police Station at least 24 hours prior to visiting the scene with his legal team.

8.Mr Tang also submitted that as part of his training, the applicant may be required to go overseas for training, possibly once a year and that therefore the condition not to leave Hong Kong would hamper his further studies.

9.In my view, the condition of not to leave Hong Kong is a reasonable one and that should in the future the occasion arise that the applicant need to go overseas as part of his training, then he may apply to the court in the future by submitting a letter from IVE certifying that he has to attend the course overseas, the place and the length of time that he will be away from Hong Kong and in the future that may be re‑considered. But as of this moment, I see no reason to tamper with the condition of his not leaving Hong Kong.

10.As for the curfew, the applicant has to report to the Ma On Shan Police Station between 6:00pm to 9:00pm, so in view of that, I am prepared to vary that curfew to 10:00pm to 6:00am everyday.  As for not to appear in the Tuen Mun District, the applicant is not allowed to appear in the Tuen Mun District in the area demarcated in the map in black without first informing Ma On Shan Police Station duty officer or the officer in charge of the case at least 24 hours prior to his appearance as to why he needs to attend the area or part of the area demarcated in black with supporting documents and, also, if he is going within the demarcated area with his legal representative, he is to supply the name of the legal representative who will be attending with him and the firm to which the legal representative belong and the time that he and his legal team will be appearing in the district demarcated in black.

11.If the applicant requires as part of his IVE course to catch a shuttle bus from the Tuen Mun area to the Hong Kong International Airport and then back again during the curfew hours, then he will need to submit the information to the duty officer of Ma On Shan Police Station at least 24 hours prior to this taking place.  He is also to submit to the duty officer a document certifying that he had to attend the workshop at the Hong Kong International Airport on such a day and that he will be attending within the curfew hours and the duty officer, upon receiving sufficient documentation, will decide if leave will be granted to the applicant to not be at home during the curfew hours and to appear in the Tuen Mun District to catch his shuttle bus and upon his return by shuttle bus.

12.I believe, therefore, that such conditions are necessary in order to prevent the applicant from re‑offending or draw suspicion on himself as having possibly re‑offended.

Ms Andrey Parwani SPP, of the Department of Justice, for the respondent

Mr Howard Tang, instructed by S T Cheng & Co., Solicitors, for the applicant