HKSAR v. Wong Chi Fung

HCCP 575/2019

[2020] HKCFI 106

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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Before:  Hon Toh J in Chambers (Open to the Public)

Date of Hearing: 19 November 2019

Date of Reasons for Decision: 19 November 2019

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REASONS FOR DECISION

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Background

1.The applicant is the 1^st defendant in a magistrates’ criminal case number 2031/2019 at the Eastern Magistracy.  He faces a total of three charges:  The first, incitement to knowingly take part in an unauthorised assembly; secondly, organising an unauthorised assembly; and, third, knowingly taking part in an unauthorised assembly.

2.It is alleged that he, together with two other co‑defendants and a large group of protestors, had assembled outside the Citic Tower, where the applicant had used loudspeakers to incite the crowd to besiege the police headquarters, and the applicant is alleged to have gone to the outside of the police headquarters and chanted slogans together with the crowd and alleged to have repeatedly given directions to the protestors.

3.The unlawful assembly alleged took place between 1131 hours until 2335 hours and the last of the protestors dispersed at some time in the early hours of about 3:45 am, after some 15 hours.

4.The applicant was arrested on 30 August 2019 and was given bail by the principal magistrate and one of the conditions of bail is that he is not allowed to leave Hong Kong.  However, I am informed that at that time she did allow the applicant to travel to Taiwan, Germany and the United States, between September 3 to 23, and after which the applicant returned.

5.On 8 November, the applicant applied to vary the condition not to leave Hong Kong in order to travel again to Europe for attendance at various congressional hearings and speeches in various parliaments and universities, and, according to Mr Tam, to promote awareness towards critical issues concerning Hong Kong and, Mr Tam added that, by saying in court today, in order to lobby around the world for Hong Kong.

6.His application on 8 November was duly refused by the learned magistrate as she did not consider that the travel was necessary and therefore refused the application.  So thus the application came before me today.

7.Now, Mr Tam in his written submissions had also submitted annexes of the places and a sort of itinerary of the places that the applicant hopes to go to and also the air ticket that has been booked, the invitations, etc, and it is obvious to me that these were issued in October and November prior to this application, which at first blush may appear to assume that the application today would be granted.  However, I do accept Mr Tam’s submission that it was only done in order to give the court an idea of the itinerary and there was no other purpose.

Legal principles

8.Now, Mr Tam’s submissions on the legal principles are of course not disputed and, in fact, it is a true statement which is taken from Archbold, at paragraph 3‑21 that:

“The condition in section 9D(3)(b)(i), 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 to freedom of movement . . .”

And that is from a case in the European Court of Miazdzyk v Poland, which is cited in the same Archbold paragraph.

9.So, as Mr Tam pointed out, the court has to consider if the condition is necessary, having given sufficient weight to the freedom of movement of the applicant who has not been convicted.

10.The case cited by Ms Chan - that is, the Secretary for Justice v Wong Chi Fung[1] case, is distinguished in that the Court of Appeal was dealing with a convicted person who was on bail pending appeal but the principle still applies, that it is for the applicant to satisfy the court that there are good reasons for him to attend these overseas events, and, as the Court of Appeal said in that case, the reasons should be demonstrably strong or special that the policy consideration should take second place.

11.In this case, of course, the applicant is presumed innocent until he has been proven guilty and therefore he has the right to bail, with conditions imposed as circumstances may dictate it to be proper to do so.

12.However, the principle which was cited in the Court of Appeal remains the same.  It is for the applicant to satisfy this court that the lifting of the travel restriction is necessary in the circumstances.

13.The applicant does not contend that the condition imposed on him not to leave Hong Kong is in any way improper or wrong in principle, but only that the condition should be varied for him to attend these hearings, to make speeches about the conditions in Hong Kong to the international community.

Discussion

14.Mr Tam has today handed up to this court a letter from Lord Alton of Liverpool, inviting the applicant to receive an award in London for — it is called the Westminster Award for Human Life, Human Rights and Human Dignity, and that the committee looks forward to giving the award to the applicant.

15.Now, that letter, that invitation, is dated 15 November this year and that, as I have noted to Mr Tam, was an invitation which was made after the application to vary the bail condition before the learned magistrate was refused.

16.Mr Tam, however, prays in aid this matter to counter the respondent’s argument that it was not necessary for the applicant to be in Europe in person as nowadays the use of the Internet would be sufficient enough, and Mr Tam urges this court to consider that it is a very prestigious award and the desire of the applicant to receive this distinction in person is of course of paramount consideration to him.

17.Now, first of all, I must observe that the situation in Hong Kong has been over the past few months minutely covered in the international press and there is not a day that goes by where the Hong Kong situation is not mentioned in the international press.

18.The Court of Appeal, in the Wong Chi Fung case 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.

19.As for the receiving of the award, the invitation was made after, as I have said, the refusal by the learned magistrate to vary his travel condition and I am sure that, it being such a distinguished award, the committee will choose another time to present the applicant with this award.

20.I may also observe that, in these troubled times in Hong Kong, perhaps the applicant could better use his talent and energy to help Hong Kong return to calm for the sake of the people of Hong Kong rather than dissipate his energy internationally.

21.I do not consider the applicant’s obligations overseas to be necessary or, as the learned principal magistrate said, his attendance at these events are indispensable, and also, as I have observed earlier on, there is a real risk of absconding, and it is not a fanciful risk, for the applicant to be tempted not to show up in court at the appointed time, when he is abroad and beyond the reach of this jurisdiction.

22.Although Mr Tam pointed out that he has strong family ties in Hong Kong and therefore his risk of flight is low, as demonstrated by his returning to Hong Kong after his travels in September, circumstances change and minds change, and there still remains a temptation not to return to Hong Kong in this case, as one of the factors raised by Ms Chan is the strength of the evidence in this case.

23.So, weighing up the aforementioned matters, this is not an appropriate case to grant the variation sought, so the application is refused.

Miss Karen K Y Ng, PP of the Department of Justice, for the respondent

Mr Jeffrey C K Tam, instructed by Sanny Kwong & Co, for the applicant