Secretary for Justice v. Fan Chun Man

HCCP 723/2020

[2020] HKCFI 3091

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO. 723 OF 2020

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BETWEEN

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Before: Hon Anthea Pang J in Chambers (Open to Public)

Date of Hearing: 9 December 2020

Date of Decision: 9 December 2020

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D E C I S I O N

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Background and the Application

1.Pursuant to section 9H of the Criminal Procedure Ordinance, Cap. 221 (CPO), the Secretary for Justice (SJ) applies for a review of the decision made on 30 November 2020 by Ms Bina Chainrai, Principal Magistrate of the Eastern Magistrates’ Courts, to admit the Respondent, Mr Fan Chun Man, to bail. 

2.Briefly, the Respondent is alleged to have been involved in the riot which took place at the Legislative Council Complex (LegCo) on 1 July 2019.  According to the prosecution, the Respondent had his mask removed at the time, his face was therefore clearly captured on the video footage which depicted that at around mid-night that day, he had a discussion with a dozen people inside the chambers of the LegCo as to whether they should continue to stay or retreat therefrom.  The SJ submits that, in the circumstances, the Respondent had played a leading role in the incident and they have a strong case against him.  

3.Upon discovery of the footage and following further investigation, the Respondent was put on the “wanted list” and the “watch list” since 29 September 2019 but the efforts of the police to locate him were futile.  

4.Firstly, the police had paid two visits to the Respondent’s last reported address on 30 September 2019 and 9 June 2020.  On both occasions, they were told by the father of the Respondent that the Respondent had not returned to the premises for a long time, firstly saying that he had not done so for 8 years and on the second occasion, saying that the Respondent had not returned for 2 years. 

5.In the interim, a summons charging the Respondent with the offence of “contravening an administrative instruction of the LegCo” (“the contravention offence”) was issued against him in relation to the incident on 1 July 2019.  For this summons, a total of 3 hearing dates in February, June and August 2020 had been set.  However, on the first 2 occasions, the letters sent to the Respondent’s last known address informing him to attend the hearing were returned and marked “No such person”.  In relation to the 3^rd hearing, the court bailiff, when trying to deliver the summons to the Respondent at his last known address, was told by the resident thereat that they had lost contact with the Respondent and that the Respondent had already moved out.  Further, the resident refused to accept the service of the summons. 

6.Given that there was no effective service of the notices of hearing on the Respondent, it came as no surprise that the Respondent did not attend the hearings for the “contravention” offence on all 3 occasions. 

7.On 13 August 2020, the prosecution successfully applied for a warrant of arrest against the Respondent on the grounds, inter alia, that they had exhausted the means of locating the Respondent and to no avail. 

8.On 28 November 2020, the Respondent was seen acting furtively and was intercepted by the police at Wong Tai Sin MTR station.  During the subsequent police investigation, the Respondent refused to disclose his address and occupation. 

9.On 30 November 2020, when the Respondent was brought before Ms Chainrai in relation to the contravention offence and the additional offence of riot, and despite the prosecution’s objection, bail was granted to the Respondent on conditions including, inter alia, cash of $10,000; the Respondent’s father being the cash surety in the sum of $10,000; not to leave HK; to reside at his last known address; and to report to a police station once biweekly.  The case was then adjourned to 10 December 2020 for transfer to the District Court. 

10.It is this decision of the Principal Magistrate in granting bail to the Respondent on 30 November 2020 which the SJ now invites this Court to review. 

Consideration

11.I have set out in detail the background and the history of the proceedings because, in my view, such has a clear bearing on the bail application then before the Principal Magistrate. 

12.While, as suggested by Mr Shek for the Respondent, there is no requirement that the Respondent must ordinarily or unceasingly reside at the address given on his application form for the identity card which form he signed on 6 July 2019, it would appear to be undisputed that the address stated thereon is one which both the Respondent and/or his father confirmed to be not where the Respondent had been residing since at least about 2 years ago. 

13.The significance of this is that there must have been in existence a place(s) at which the Respondent lodged during the period when he was not residing with his family, which address he did not disclose when applying for the identity card and which remains unknown as at present. 

14.One also could not lose sight of the fact that the Respondent reported to be unemployed at the time when he applied for his identity card and he also refused to disclose his occupation after his arrest but, of course, he had the right to remain silent.  The long and the short of it is that there was, at the time, no work place at which he could be located. 

15.In the circumstances and having considered all the relevant matters, including the nature and seriousness of the alleged offence of riot; the weight of the evidence and the manner in which the Respondent is likely to be dealt with in the event of a conviction; the behaviour, demeanour and conduct of the Respondent; his background and occupation; his family ties, etc , I am of the view that, at the time when bail was sought before the Principal Magistrate, there were substantial grounds for believing that the Respondent, even with conditions imposed, would fail to surrender to custody as the court might appoint. 

16.However, no action was taken under section 9I of the CPO in this case and, therefore, the Respondent has been released from custody since the granting of bail on 30 November 2020. 

17.As the matter currently stands, both the SJ and the Respondent have filed arguments pursuant to section 9H(4) of the CPO.  I should therefore now approach the matter with the additional information and arguments submitted by the parties, including the conduct of the Respondent since 30 November 2020. 

18.Insofar as the Applicant (the SJ) is concerned, the information contained in the two affirmations did not add much to what was then before the Principal Magistrate. 

19.As to their argument, although the SJ urges upon me that the Respondent must have known that the police had been looking for him given that his image was captured by open source video which was available to the public, I have hesitation to accept this submission as I am not sure if identity would be an issue at trial.  In fact, as pointed out by Mr Shek, at present, the video footage, at the most, only depicted a person resembling the Respondent.  In the absence of any admission made, it could not be gainsaid that the Respondent might have been kept in the dark about the police looking for him because of the video footage. 

20.Turning to the Respondent’s argument, Mr Shek submits on his behalf that it is now a bail condition that he should reside at the given address and there is no evidence from the SJ that the respondent has failed to do so since the granting of bail.  Further, this Court is now informed that the Respondent is gainfully employed as a full-time purchasing clerk in a foodstuff supplier company with particulars as to his working hours; the address of his workplace; the name of his employer, etc given.

21.In other words, the circumstances then existing before the Principal Magistrate have now been overtaken by events. In view of the latest development, including the fact that the Respondent did attend today’s hearing with the full knowledge that it is an application to revoke his bail, I am inclined to accept that, with more stringent conditions imposed, the Respondent could continue to be granted bail. 

22.Firstly, given his father’s previous responses when the authorities tried to locate the Respondent at the family address, I consider that another surety should be made available.  Next, I notice that the Respondent is now required to report to a police station only once biweekly, given the conduct of the Respondent before the arrest, I take the view that reporting thrice weekly should be more appropriate.  Thirdly, for a better safeguard to ensure that the Respondent indeed resides at the reported address, and having considered his work requirement, I am of the view that there should also be a curfew order. 

23.Finally, I need to say that although, in their respective arguments,  the SJ relies on the fact that some of the defendants have absconded to urge for the bail to be revoked whereas the Respondent, on the other hand, relies on the fact that all the defendants in these cases have been granted bail to suggest the continuation of bail, it is plain that unless there is material or information establishing a link, the mere fact that other defendants in the same case have absconded would not appear to be a relevant consideration in this application.  Likewise, the fact that other defendants have been granted bail is not something which is relevant to the question of whether the Respondent should be granted bail. 

24.The ultimate considerations are those set out in the relevant provisions in Part IA of the CPO and Article 5(3) of the Hong Kong Bill of Rights which I am not going to reiterate here but those are the matters which I have taken into account in dealing with this application. 

Conclusion

25.In short, I refuse to grant the SJ’s application for review which seeks to revoke the Respondent’s bail but I order that the bail conditions be varied as mentioned. 

Ms Laura Ng, ADPP and Ms Jennifer Tsui, PP of the Department of Justice, for the Applicant

Mr Randy Shek and Ms Wong Lok Hay Hayley instructed by M/s S. C. Ho & Co, for the Respondent