HKSAR v. Lai, Chee Ying

HCCP 289/2020

[2020] HKCFI 1249

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 289 OF 2020

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REASONS FOR RULING

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Introduction

1.This is about the applicant’s application for variation of bail.  The matter was first listed before me on 22 May 2020.  On that occasion, by consent of the parties I ordered that the applicant’s reporting condition be removed.  As regards his application to lift the travel restriction, as he had not submitted any concrete travel plan to the court for consideration, that respect of his application was adjourned sine die, with liberty to restore. 

2.On 15 June 2020, the applicant renewed his application to lift the travel restriction.  Having considered affirmation evidence filed by both sides and submissions from counsel, I dismissed the application, saying that the reasons would be handed down in due course.  This I now do. 

Background

3.The present application relates to the charge of criminal intimidation which the applicant is facing (WKCC 956 of 2020).  He has been granted bail for that case on conditions one of which being the travel ban.

4.Apart from the aforesaid charge, my attention is drawn by Mr Bruce, SC (and with him, Ms Fanny Wong), counsel for the respondent, to the fact that the applicant has also been charged with other offences in separate proceedings as follows:

(i) “knowingly taking part in an unauthorized assembly (WKCC 957/2020);

(ii) “organizing an unauthorized assembly” and “knowing taking part in an unauthorised assembly” (WKCC 1265/2020); and

(iii) “organizing an unauthorized assembly” and “knowing taking part in an unauthorised assembly” (WKCC 1266/2020).

I am told that the prosecution will apply on 15 June 2020 for the above three cases to be transferred to the District Court for trial.  I note also that the applicant has been granted bail in the aforesaid three cases without any travel restriction.

5.Besides, I am told that Police have applied for summons to be issued against the applicant and three others for “incitement to knowingly take part in an unauthorized assembly” in relation to an assembly on 4 June 2020.

The present application

6.The applicant now asks that the travel ban currently imposed upon him be lifted for the period between 24 June 2020 and 19 July 2020, so that he may visit the United States for four specific purposes:

(1) to visit his daughter and her new born baby who live in New York City and to spend time with the family there;

(2) to go to Buffalo City in New York State to meet members of his staff from Canada to discuss business plans for his two hotel chains which operate in Canada;

(3) to go to Washington DC to meet a service provider of his newspaper (Apply Daily) and also to meet representatives of some media companies to promote the recently developed English section of Apply Daily; and

(4) to discuss a possible acquisition of a hotel in Little Washington VA.

7.I note that the applicant’s trial (WKCC 956 of 2020) is scheduled to commence on 19 August this year, with 3 days reserved.

Consideration

Relevance of applicant’s other cases

8.Technically speaking, although the present application is only about the travel ban in relation to the case of criminal intimidation (WKCC 956 of 2020) and despite the fact that he has been granted bail in other cases without any travel restrictions, both parties agree that this court should take a “holistic” view in the overall risk assessment, rather than just focusing on the case from which this application originates.

Legal principles

9.As the applicant has already been granted bail pending trial.   The travel restriction to a certain extent limited his freedom of movement, but not his personal liberty in Hong Kong.  For the purpose of this application, he is not asking this court to remove the travel restriction altogether.  The only issue for this court to decide is whether it is appropriate in all the circumstances to lift temporarily his travel ban during the aforesaid period for the stated purposes.

10.The relevant legal principles are as summarized in my recent judgment in HKSAR v Wong Chi Fung [2020] 2 HKLRD 56 which I am not going to repeat.  It suffices for me to reiterate what I have said at paragraph 35 of that judgment that, “in the final analysis the issue about the necessity and proportionality of a travel restriction on bail is always case-specific question.”  On this note, it is important to bear in mind the presumption of innocence and a defendant’s right to bail pending trial, so that in a similar application like the present one, it is not the case that a defendant must show the “necessity” of his or her proposed trip in order to succeed.  After all, bail applications are about risk assessment.  In my view the “necessity” or otherwise of the proposed trip is just a relevant factor to be weighed in the overall scheme of things, so that if the proposed trip is not “necessary”, then the court may be less inclined to remove or suspend the travel restriction as originally imposed. 

Merits of the application

11.The court takes notes of the submissions forcefully put by Mr Duncan, SC (and with him, Mr Hui) that the applicant has strong family and business ties to Hong Kong and also the fact that he is a person with clear record.  On the other hand, the affirmation evidence also shows that the applicant has family members living in the United States and substantial business interest in the United Kingdom, Canada and Taiwan.

12.As regards the reliance placed by Mr Bruce both in his written and oral submissions on some newspaper reports concerning a perceived risk of a fugitive not being surrendered to Hong Kong by the US Government in the future, with respect this is not something to which this court could attach much weight.  This is not to say that the perceived risk can never be relevant.  This court appreciates that a defendant may be less inclined to take shelter in a jurisdiction if he knows that that jurisdiction has in place an extant and effective extradition arrangement with Hong Kong.  The contrary is also true in that the temptation for a defendant not returning may be higher, if he or she is allowed to depart for a jurisdiction which does not have such an arrangement with Hong Kong. Needless to say, the difficulties in seeking rendition would also adversely affect the due administration of justice.  However, I am yet to be satisfied that the current state of affairs between Hong Kong and the United States is such that the prospect of rendition (should occasion arise) has now become a weighty consideration for the purpose of the present application. 

13.On the other hand, having considered the applicant’s affirmations and counsel submissions, I am unable to be satisfied that the applicant’s proposed trip to US is really necessary:  

● As regards (1), there is no urgency for the proposed visit.  Besides, there are plenty of opportunities for the applicant to meet his daughter and grandchildren at such time or place which do not require him to travel before his coming trial this August.

● As regards (2), Buffalo City is not the “ground” of the operation of his two hotel chains.  Canada is. Furthermore, in this era and under the current circumstances, it is not uncommon for important business meetings or decisions to be transacted via remote video conferencing.  If the business plans can be discussed in the United States which is not where the hotel operations are based, then I am unable to see why it is not feasible for the applicant to discuss the same in Hong Kong by having remote video conferences. 

● As regards (3), I am unable to see why the applicant has to meet the service provider personally in US and also the representatives of the media companies.  His subordinates can act for him or he may meet those people via the internet.  Besides, if the US media companies are interested in and has followed the news of Hong Kong, they would probably appreciate that the applicant is currently subject to a travel ban relating to a trial which is to commence shortly.

● As regards (4), it seems that the business opportunity has only arisen after the last hearing before me a few weeks ago and the negotiation is still at its embryonic stage. There is yet to be any contractual obligation which may necessitate the applicant’s urgent travel.

14.As aforesaid, this court is also entitled to take into account the fact that the applicant is now facing and is going to face a number of trials at different levels of court.  That tends to provide a stronger incentive than before for the applicant not to return, should he be permitted to leave Hong Kong.  In this regard, I respectfully borrow the words of Macrae VP in HKSAR v Tai Yiu Ting (CACC 128 of 2019, dated 11 October 2019) that “no one can say what the influences might be on anyone, even of the utmost probity and character, when free from the jurisdiction”.  I appreciate of course that the aforesaid case was about an application for variation of bail pending appeal from a person who has been sentenced to a term of imprisonment so that he knows what the stakes would be should he fail to surrender, whilst in the present case the applicant is facing a series of trials and his fate is more uncertain.  However, what Macrae VP said about the influences which one might be subject to if and when he is allowed to be free from the jurisdiction is just as pertinent here.

15.Besides, I agree with Mr Bruce’s submission that account should also be taken of the attendant risks of the applicant contracting CONVID-19 while he was travelling.  The United States is now the country with the highest number of confirmed cases of the pandemic and that the applicant’s proposed itinerary would require him to travel extensively in those parts of that country which are worst hit by it.  There is yet to be any vaccine available for the disease and the remedies for which are still being tested. For all we know, the virus is highly infectious.  Thus, the risk of inflection whilst in the United States or on plane journey cannot be ignored.  This is especially so when the applicant happens to fall within the age group of people who are most vulnerable.  Moreover, if and when the applicant returns as proposed, he will be subject to a 14-day quarantine, the end of which is just about two weeks before the trial.  In the unfortunate event that the applicant is confirmed to have caught the disease whilst he is still in the United States, then the likelihood is that he would “fail to surrender to custody as the court may appoint”, albeit unintentionally.  Furthermore, should he be confirmed to have the virus after return, the trial would almost definitely have to be derailed. The said attendant risks, which in my assessment is real rather than fanciful, would have an adverse effect on the due administration of justice. 

16.Having weighed everything on the balance, despite the customary abled and measured submissions of Mr Duncan, I am of the view that the current travel ban imposed upon the applicant is necessary and proportional in the circumstances and I am not persuaded that the travel ban should be lifted for the stated purposes of the applicant in view of the incoming trial in this August. 

Conclusion

17.Based on the above, the applicant’s application is dismissed.

Mr Andrew Bruce, SC and Ms Fanny Wong, on fiat, for the Respondent

Mr Peter Duncan, SC and Mr Lawrence Hui, instructed by Robertsons, for the Applicant