HKSAR v. Wong Chi Fung
Read the full judgment text of HCCP 575/2019 on BabelCite. This HCCP judgment was delivered on 23 January 2020.
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.
Cited by 7 cases · Cites 10 cases
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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 ________________________
________________________ Before: Hon Alex Lee J in Chambers (Open to Public) Date of Hearing: 23 January 2020 Date of Ruling: 23 January 2020 Date of Reasons for Ruling: 5 March 2020 ____________________ REASONS FOR RULING ____________________ 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:
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:
15.There is also Article 28 of the Basic Law which provides for the freedom of the person:
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:
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:
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]:
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:
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:
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:
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,
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:
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:
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:
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:
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:
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.
Ms Christal Chan, ADPP, and Ms Karen Ng, PP of the Department of Justice, for the Respondent Mr Martin Lee, SC, Mr Jeffrey Tam and Mr Ip Fung Shing, instructed by Sanny Kwong & Co, for the Applicant [1] ESCC 203/2019 [2] Ms Bina Chainrai [3] Namely, a trip to Taiwan between 3 & 5 September 2019; and a trip to Germany and to the USA between 9 & 23 September 2019. [4] HCCP 575/2019 ([2002] HKCFI 106). [5] And with him, Mr Jeffrey Tam and Mr Ip Fung Shing [6] And with her, Ms Karen Ng [7] CACV 14/2018 ([2018] HKCA 670), which was about the Applicant’s application for variation of bail pending appeal relating to a different matter. [8] [2002] 2 HKLRD 147, per Deputy Judge McCoy [9] [1935] AC 462 [10] Ordinance 56 of 1994 [11] See Legislative Council Brief, Criminal Procedure Ordinance, Cap 221, Criminal Procedure (Amendment) Bill 1993, File Ref: AGC LP/5019/1 [12] [2015] 2 HKLRD 502, at para 16. [13] HCMP 3118-3121/2014 [14] R v Mansfield Justices ex parte Sharkey [1985] 1 QB 613 [15] [2002] 2 HKLRD 147 [16] Supra, at para 18. [17] Ord 8 of 1979, s2. [18] [1992] 2 HKCLR 122, per Deputy High Court Judge Jones. [19] [1992] Crim LR 33, DC [20] Mr Ronald Arculli, who moved the Second Reading of the Criminal Procedure (Amendment) Bill 1993, said (at p 4530):
[21] (2009) 12 HKCFAR 568 [22] (2016) 19 HKCFAR 469 [23] Agreed to by Deputy Judge Stuart-Moore agreed in R v Hashimi Habib Halim (HCMP 995/2015). [24] At para 3-29. [25] [1981] QB 38 [26] As noted by Gummow, “Change and Continuity: Statute, Equity and Federalism” (1999), “Lecture One – The Common Law and Statute”. See Atiyah, “Common Law and Statute Law” (1985) 48 Modern Law Review 1. [27] See, e.g., Warnink v Townend & Sons (Hull) [1979] AC 731, at 743 (per Lord Diplock). [28] “23. Effect of repeal generally
[29] CACV 142/2018, which dealt with an application for variation of bail pending appeal. [30] Postscript: after the refusal of the present application and before the handing down of this judgment, there was a general closure of courts based on public health considerations as a result of the recent outbreak of the new corona virus. However, that was something totally unexpected. [31]: see para 12 of the judgment. | ||||||||||||||||||
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