HKSAR v. Lai Chee Ying (黎智英)
Read the full judgment text of FACC 1/2021 on BabelCite. This Court of Final Appeal judgment was delivered on 9 February 2021 before Chief Justice Cheung, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Chan NPJ and Mr Justice Stock NPJ.
Criminal law – National Security Law – bail – interpretation of Article 42(2) – threshold requirement for grant of bail – jurisdiction to conduct constitutional review of NSL provisions – whether NSL 42(2) imposes a more stringent threshold than CPO 9G(1) – whether bail conditions may be considered in assessing NSL 42(2) – whether NSL 42(2) involves a burden of proof on the prosecution – whether Judge below erred by eliding NSL 42(2) with discretionary considerations under CPO 9G. Mr Lai Chee Ying was charged under Article 29(4) NSL with collusion with a foreign country or external elements to endanger national security between 1 July 2020 and 1 December 2020, the particulars alleging that he had requested a foreign country or an institution outside the PRC Mainland, Hong Kong and Macao to impose sanctions or blockade or engage in hostile activities against the HKSAR or PRC. The Chief Magistrate refused bail. Alex Lee J granted bail under section 9J of the CPO subject to an undertaking and conditions including not meeting foreign officials, restrictions on media and social media activity, residence restrictions, surrender of travel documents, reporting, and substantial cash security. The prosecution sought leave to appeal. Held: Appeal allowed. The legislative acts of the NPC and NPCSC leading to the promulgation of the NSL as a law of the HKSAR in accordance with the provisions of the Basic Law and the procedure therein are not subject to constitutional review by the Court on the basis of any alleged incompatibility as between the NSL and the Basic Law or the ICCPR as applied to Hong Kong (Ng Ka Ling v Director of Immigration (No 2) applied). NSL 42(2) creates a specific exception to the HKSAR bail regime and imports a stringent threshold requirement: 'no bail unless there are sufficient grounds to believe the accused will not continue to commit acts endangering national security', as distinct from the CPO 9G(1) starting point of 'grant bail unless there are substantial grounds to believe the accused would commit an offence while on bail'. The judge may consider all relevant matters, including possible bail conditions, when assessing the 'sufficient grounds' question. There is no formal burden of proof on the prosecution; the 'sufficient grounds' question is a matter for judicial evaluation and judgment. 'Acts endangering national security' means acts of that nature capable of constituting an offence under the NSL or HKSAR laws safeguarding national security. If the judge concludes that he or she does not have sufficient grounds, bail must be refused; if the judge does have such sufficient grounds, the court proceeds to consider other matters applying the presumption in favour of bail. The Judge below misapprehended the nature and effect of NSL 42(2) by eliding it with the discretionary considerations under CPO 9G, following the erroneous approach in Tong Ying Kit v HKSAR and HKSAR v Tong Ying Kit. The grant of bail was set aside and the respondent remanded in custody; the respondent may make a fresh application for review of the Chief Magistrate's refusal of bail if so advised.
Legal issues: Constitutional review of NSL provisions · Interpretation of NSL 42(2) - threshold for bail · Consideration of bail conditions under NSL 42(2) · Burden of proof under NSL 42(2) · Error in the Judge's grant of bail
Outcome: Appeal allowed; the Judge's decision to grant the respondent bail was set aside and the respondent was remanded in custody pending any fresh application for review of the Chief Magistrate's refusal of bail.
Cited by 80 cases · Cites 8 cases
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FACC No. 1 of 2021 [2021] HKCFA 3 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION FINAL APPEAL NO. 1 OF 2021 (CRIMINAL) (ON APPEAL FROM HCCP NOS. 727 AND 738 OF 2020) ________________________
________________________ Before: Chief Justice Cheung, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Chan NPJ and Mr Justice Stock NPJ Dates of Hearing: 1 February 2021 Date of Judgment: 9 February 2021 ________________________ J U D G M E N T ________________________ The Court: 1.In this appeal, it falls to the Court to consider the provisions governing the grant of bail to a person charged with an offence under the National Security Law[1] (“NSL”). A. The proceedings below 2.On 12 December 2020, the respondent, Mr Lai Chee Ying (“Mr Lai”), was charged with one count of “collusion with a foreign country or with external elements to endanger national security” under Article 29(4) of the NSL (“NSL 29(4)”).[2] The particulars of the charge allege that between 1 July 2020 and 1 December 2020, Mr Lai requested a foreign country or an institution, organisation or individual outside the Mainland, Hong Kong, and Macao of the People’s Republic of China (“PRC”), to impose sanctions or blockade, or engage in other hostile activities against the Hong Kong Special Administrative Region (“HKSAR”) or the PRC. Earlier, on 2 December 2020, Mr Lai had been charged with one count of fraud, but that charge is not presently relevant. 3.The Chief Magistrate, Mr Victor So, refused bail and remanded the respondent in custody.[3] The Record of Bail Proceedings indicates that the Chief Magistrate considered that there were substantial grounds for believing that the accused would fail to surrender to custody or commit an offence while on bail. His reasons for forming that opinion included the nature and seriousness of the alleged offence. He also indicated that he had considered NSL 42, which is central to this appeal and set out below.[4] 4.On 23 December 2020, on the respondent’s application, Alex Lee J granted him bail pursuant to section 9J of the Criminal Procedure Ordinance (“CPO”)[5] subject to the respondent providing the undertaking offered by him in the following terms:
5.Bail was also granted subject to the following conditions, namely:-
Reasons for the Judge’s grant of bail were handed down on 29 December 2020.[6] 6.The prosecution sought leave to appeal to this Court putting forward two questions as being of the requisite importance. The first was as to whether the Court has jurisdiction to entertain an appeal against the grant or refusal of bail below. Leave was refused on that ground, the Appeal Committee[7] holding that since a bail decision is not final, it was not reasonably arguable that such jurisdiction exists.[8] 7.Leave to appeal was, however, granted on the second question which seeks the Court’s ruling on the correct interpretation of Article 42(2) of the NSL (“NSL 42(2)”) which provides:
8.Determination of the meaning and effect of NSL 42(2) requires that provision to be examined in the light of the context and purpose of the NSL as a whole, taking into account the constitutional basis upon which the NSL is applied in the HKSAR. B. The formulation and application of the NSL to the HKSAR 9.Since the PRC’s resumption of the exercise of sovereignty over Hong Kong on 1 July 1997, the HKSAR has been constitutionally obliged to enact a National Security Law. Article 23 of the Basic Law (“BL 23”) provides:
10.Although a draft law was prepared after widespread consultation by the HKSAR Government in 2003, it was withdrawn in the face of political opposition and no such law has been locally enacted despite the passage of some 23 years. In the wake of serious and prolonged disturbances to public order and challenges to the authority of the HKSAR and PRC governments in recent months,[9] the Central Authorities considered the absence of national security legislation unacceptable and decided to take such legislation into their own hands. As NSL 1 states, the NSL:
11.The reference to the abovementioned Decision of the National People’s Congress (“NPC”) is to its Decision dated 28 May 2020 (which has been referred to as “the 5.28 Decision”) forming part of the process of formulating and applying the NSL to the HKSAR. Given the special status of the NSL as a national law applied under Article 18 of the Basic Law (as will be discussed) and given the express reference in NSL 1 to that process, regard may properly be had to the Explanations and Decisions made in proceedings of the NPC and the NPC Standing Committee (“NPCSC”) regarding promulgation of the NSL as a law of the HKSAR as extrinsic materials relevant to consideration of the context and purpose of the NSL.[10] 12.The process started with the Explanation of a Draft Decision (which was subsequently to become the “5.28 Decision”) presented to the NPC on 22 May 2020.[11] The Explanation began by identifying the concerns of the Central Authorities in the light of recent events in Hong Kong:
13.The Explanation went on to note that the HKSAR’s failure to enact BL 23 legislation gave rise to the proposal that steps be taken at the national level to “establish and improve the legal system and enforcement mechanisms for the HKSAR to safeguard national security, and to change its long-term ‘defenceless’ condition in the field of national security”. It identified five basic principles underlying the proposals which may be summarised as follows:
14.Elaborating upon the fifth basic principle, the Explanation states:
15.The aforesaid Explanation was adopted by the NPC in making its 5.28 Decision.[12] Having noted the national security risks, unlawful activities and foreign interference referred to, the NPC made its Decision entrusting the NPCSC:
16.It was left to the NPCSC to decide to include the relevant laws in Annex III of the Basic Law of the HKSAR of the PRC “to be promulgated and implemented by the HKSAR locally”.[14] 17.The Basic Law provisions in question are BL 18(2) and (3) which provide:
18.The next step in the process was preparation of the Draft NSL and an Explanation of that Draft which was presented to the NPCSC on 18 June 2020.[15] The five basic principles mentioned above were reiterated and the main contents of the Draft Law were elucidated. Certain “working principles” adopted in the Draft were identified. These focus on improving the HKSAR’s system, addressing institutional deficiencies and “shortcomings”, assigning responsibilities and coordinating institutional arrangements in relation to safeguarding national security. Notably, the fifth working principle was stated to be:
19.The NPCSC having decided to adopt the Draft NSL, there followed an Explanation of a Draft Decision of the NPCSC to add it to the list of laws in Annex III of the Basic Law.[16] Having referred to BL 18 regarding the categories of national laws that may be locally applied by that constitutional route, the Explanation noted that:
It accordingly declared that:
20.On 30 June 2020, the NPCSC duly decided to add the NSL to the list of laws in Annex III of the Basic Law to be applied locally by way of promulgation by the HKSAR.[17] It was accordingly promulgated by the Chief Executive of the HKSAR who gave notice that the NSL as scheduled to the Promulgation applies as from 11 p.m. on 30 June 2020.[18] 21.On 6 July 2020, the NPCSC was addressed regarding completion of the NSL’s adoption.[19] The Address stated:
22.It expressed confidence that upon its implementation, the NSL would “play a significant role” in achieving the five basic principles mentioned above and notably added:
C. The NSL 23.The following provisions of the NSL are of immediate relevance. 24.NSL 1 expressly sets out the purpose the Law, reflecting the basic principles referred to in the abovementioned Explanations and Decisions:
25.NSL 3 declares that the CPG has an overarching responsibility for the HKSAR’s national security affairs and that the HKSAR, its executive, legislative and judicial authorities are duty-bound to safeguard national security.[20] 26.NSL 4 makes it plain that human rights and fundamental freedoms under the laws of the HKSAR are to be respected and protected while safeguarding national security in the Region:
27.NSL 5 affirms adherence to the principle of the rule of law while enforcing the law against offences endangering national security:
28.Specific provision is made in NSL 41 and NSL 42 regarding procedural matters, especially in NSL 42(2) with regard to bail, which is central to this appeal. Those provisions are set out below[21] and will require detailed examination. 29.While it is evident that the legislative intention is for the NSL to operate in tandem with the laws of the HKSAR, seeking “convergence, compatibility and complementarity” with local laws,[22] NSL 62 provides for possible inconsistencies, giving priority to NSL provisions in such cases:
D. Jurisdiction 30.The first issue that divides the parties concerns the extent of the Court’s powers of constitutional review in connection with provisions of the NSL in general and NSL 42(2) in particular. 31.Mr Anthony Chau[23] submits that there is no jurisdiction to exercise such constitutional review powers. He relies in support on the decision of this Court in Ng Ka Ling v Director of Immigration (No 2)[24] holding that:
32.As we have seen, promulgation of the NSL as a law of the HKSAR was the product of the NPC’s 5.28 Decision and the NPCSC’s formulation and listing of the NSL in Annex III of the Basic Law. This was done in accordance with BL 18(2) and (3) on the footing that safeguarding national security is a matter outside the limits of the HKSAR’s autonomy and within the purview of the Central Authorities, the CPG having an overarching responsibility for national security affairs relating to the HKSAR. Mr Stewart Wong SC[25] does not suggest the contrary. It follows, Mr Chau submits, that there is no room for holding that the NSL or any of its provisions are unconstitutional or incompatible with the Basic Law or with the ICCPR as applied to Hong Kong[26] as that would amount to a challenge to legislative acts of the NPC and NPCSC done in accordance with the provisions of the Basic Law and the procedure therein. 33.Mr Wong SC submits that he is not seeking to suggest that the NSL as a whole or that any provision thereof is unconstitutional so that the jurisdiction argument is irrelevant. He invokes the principle of legality[27] for the proposition that a remedial interpretation involving a reading down of NSL 42(2) is required. His argument is that:
34.However, with respect, in arguing for the necessity of such justification, he is in fact endeavouring to mount a constitutional challenge. Thus, he submits:
35.The proposition, as developed in the respondent’s Written Case, is that NSL 42(2) derogates from constitutionally protected rights, including the right to bail and the right to personal liberty, and must be justified as being intrusions which are no more than reasonably necessary[30] and must be held invalid unless justified or remedially interpreted:
36.The respondent’s argument is that NSL 42(2) places a burden on the accused to establish that bail should be granted, thereby constituting a derogation from the presumption of innocence and the right to bail and requiring that provision to be read down so as to place a burden on the prosecution instead.[32] The question of whether NSL 42(2) involves any burden of proof is discussed below. However, for the purposes of the present discussion, we are unable to accept Mr Wong SC’s argument. 37.In our view, in the light of Ng Ka Ling v Director of Immigration (No 2),[33] the legislative acts of the NPC and NPCSC leading to the promulgation of the NSL as a law of the HKSAR, done in accordance with the provisions of the Basic Law and the procedure therein, are not subject to review on the basis of any alleged incompatibility as between the NSL and the Basic Law or the ICCPR as applied to Hong Kong. E. Construction of NSL 42(2) E.1 The approach to construing NSL 42(2) 38.NSL 41 materially provides:
39.And NSL 42 states:
40.Two features of these Articles are prominent and highly relevant:
41.NSL 4 and NSL 5, reflecting presentations to the NPC and NPCSC set out above,[36] which emphasise protection and respect for human rights and adherence to rule of law values while safeguarding national security, are also centrally important to the interpretation of the NSL generally and NSL 42(2) in particular. 42.We have decided that there is no power to hold any provision of the NSL to be unconstitutional or invalid as incompatible with the Basic Law and Bill of Rights. However, that is not at all to say that human rights and freedoms and rule of law values are inapplicable. On the contrary, NSL 4 and NSL 5 expressly stipulate that those rights, freedoms and values are to be protected and adhered to in applying the NSL. They provide the context in which NSL 42(2) must be construed and applied. As far as possible, NSL 42(2) is to be given a meaning and effect compatible with those rights, freedoms and values. Save insofar as NSL 42(2) constitutes a specific exception thereto, that corpus of law, comprising not only the human rights and rule of law principles but also the generally applicable HKSAR rules governing the grant or refusal of bail is intended to have continued effect in NSL cases. As it was put by this Court in a comparable situation,[37] the specific exception is intended to operate in tandem with constitutional rights and freedoms and other applicable statutory norms as part of a coherent whole. 43.On this aspect of NSL 42(2)’s construction, there appears to be a measure of common ground between the parties. Thus, subject to the asserted absence of jurisdiction to hold any Article of the NSL unconstitutional, the appellant submits that:
44.On behalf of the respondent, it is stated that he:
E.2 The context of NSL 42(2) 45.The aforesaid approach makes it appropriate to examine the matrix in which NSL 42(2) exists, consisting of the applicable human rights and rule of law principles, the rules regarding bail under HKSAR law and the provisions of the NSL read as a coherent whole, with a view to ascertaining how NSL 42(2) is intended to operate in that context. 46.As NSL 4 expressly mandates respect for and protection of the rights and freedoms which HKSAR residents enjoy under the Basic Law and the ICCPR as applied to Hong Kong, Article 5(3) of the Bill of Rights (“BOR 5(3)”) is plainly relevant. It states:
47.And since, as we have seen, both NSL 41 and NSL 42 provide for HKSAR laws to apply to procedural matters, including “matters such as detention and time limit for trial” which obviously cover pre-trial detention and bail, it was evidently within the contemplation of the NSL that section 9D(1) of the CPO (“CPO 9D(1)”), implementing BOR 5(3), generally creates a presumption in favour of bail:
48.The general scheme applicable in the HKSAR does not give an unqualified right to bail. Thus, the presumption in favour of bail in 9D(1) is “[subject] to this section and section 9G”. CPO 9D(2) states that the grant of bail may be subject to conditions:
49.Under CPO 9G(1), those three considerations may also provide the basis for refusing bail:
50.CPO 9G(2) lists factors (including the residual factor “any other thing that appears to the court to be relevant”) that may lead the court to conclude that bail should not be granted on one or more of the aforesaid three grounds:
51.By virtue of NSL 4, 5, 41 and 42, the aforesaid rules (and other procedural rules relating to applications for bail) are applicable to questions regarding bail in cases involving offences endangering national security, but subject to the specific exception created by NSL 42(2). E.3 The specific exception created by NSL 42(2) 52.It will be recalled that NSL 42(2) provides as follows:
53.The following features are noteworthy:
54.The aforesaid characteristics of NSL 42(2) define its limits as the specific exception carved out from the bail regime which is made otherwise applicable in relation to national security offences by NSL 4, 5, 41 and 42. NSL 42(2) operates in the context or matrix of the existing bail regime and draws on its rules and principles insofar as they may be relevant, while introducing a new and more stringent threshold requirement for the grant of bail. E.4 Two-stage approach and the relevance of bail conditions 55.An issue which arises between the parties involves the appellant’s contention that NSL 42(2) requires adoption of a two-stage approach in which the court should “only consider NSL 42(2)” at the first stage; and in particular, that “bail conditions should not be taken into account when considering whether there are sufficient grounds for believing that the accused will not continue to commit acts endangering national security.”[41] 56.By way of elaboration, the appellant submits that the judge should “consider evidence and all the relevant materials and circumstances which have occurred at the time when considering bail” and decide on that basis alone whether he or she has sufficient grounds to proceed with considering the grant of bail. If not, the judge proceeds no further. Bail conditions are only relevant if the NSL 42(2) requirement is met and the court embarks on the second stage inquiry.[42] The reasons given for taking this approach are that the language of NSL 42(2) imports a higher threshold, qualifying the presumption in favour of bail,[43] and that such an approach is necessary given the primary purpose of the NSL to suppress, etc., acts or activities endangering national security.[44] 57.We do not accept that argument. In the first place, it fails adequately to take account of the nature of bail itself. A person who is admitted to bail, as CPO 9C states, is released by the court from detention “on his undertaking that he shall surrender to custody on the day that the court may appoint”. All bail decisions therefore involve a risk assessment looking to the future: Can the accused’s undertaking to surrender to custody be accepted? Will he offend while on bail? Will he interfere with witnesses or the course of justice? It makes no sense to confine the court to looking only at the evidence available at the time of the bail hearing and to exclude consideration of matters which may have a bearing on the accused’s likely conduct pending the trial. Such matters include the potentially preventive effect of appropriate bail conditions which might be put in place. Of course in any given case, the judge, in answering the NSL 42(2) question, may decide that in all the circumstances, and having duly considered possible bail conditions, he or she does not have sufficient grounds for believing that the defendant will not continue to commit acts endangering national security and thus refuse bail. But it makes no sense presumptively to exclude bail conditions from consideration. 58.Secondly, the applicability of the general bail regime mandated by NSL 4, 5, 41 and 42, subject to the specific exception introduced by NSL 42(2), supports taking account of bail conditions. Thus, CPO 9D(2) provides for the imposition of bail conditions “to secure” that the person admitted to bail will duly surrender to custody and will not commit violations during the period of bail. There is in principle, no reason why the judge, in asking whether he or she has “sufficient grounds”, should not have regard to CPO 9D(2) and factor in any possible bail conditions aimed at securing that the accused will not commit acts endangering national security if granted bail. The defendant will be aware that bail will immediately be revoked if any bail condition is breached. The imposition of appropriate conditions therefore possesses a deterrent value that may plainly be relevant to the risk assessment. 59.As we have seen, CPO 9G(2) lists factors which bear on the risk assessment including the nature and seriousness of the alleged offence and potential punishment on conviction; the defendant’s behaviour, demeanour and conduct; his background, associations, employment, occupation, home environment, community ties and financial position; his health, physical and mental condition and age; his history of any previous admissions to bail; his character, antecedents and previous convictions, if any; the nature and weight of the evidence of the commission of the alleged offence by the accused person; and the residual reference to “any other thing that appears to the court to be relevant”. 60.Those factors are undoubtedly primarily aimed at assessing the accused as a possible flight risk. But they are also relevant to other potential violations and quite capable in particular cases of being relevant to the “sufficient grounds” question under NSL 42(2). Thus, for example, the nature and seriousness of the national security offence charged is likely to be an important factor. So are the past conduct of the accused, his associations and financial position, and the weight of the evidence against him. CPO 9G(2)(h) enjoins the court to take into account “any other thing that appears to the court to be relevant”. That plainly includes any bail conditions fashioned with a view to securing that the accused will not commit acts endangering national security. 61.The reasons advanced by the appellant for excluding bail conditions when answering the “sufficient grounds” question are unconvincing. We are unable to see how the fact that the language of NSL 42(2) imports a different and more stringent threshold for bail somehow leads to the conclusion that bail conditions should be excluded in a sealed-off first stage inquiry. Such a conclusion is at odds with the language of the relevant NSL provisions discussed above. 62.The cardinal importance of the primary purpose of the NSL, namely to safeguard national security and to prevent and suppress acts endangering national security, is clear. That is why changes, including the NSL 42(2) exception applying more stringent conditions to the grant of bail in relation to offences endangering national security have been introduced. But it does not follow, especially in the light of NSL 4, 5, 41 and 42, that consideration of possible bail conditions should be excluded when deciding the “sufficient grounds” question. 63.Whether any possible bail conditions would give the magistrate or judge dealing with the bail application sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security in any given case is of course a separate matter for assessment by the magistrate or judge. E.5 Burden of proof 64.The respondent contends that as a general rule, the prosecution bears the burden of proof in establishing that bail should not be granted and that nothing in NSL 42(2) changes that.[45] The proposition is therefore that the burden is on the prosecution to prove that bail should be refused under NSL 42(2).[46] On the other hand, the appellant argues that the burden of proof is not engaged when the “sufficient grounds” assessment is being conducted by the court.[47] It argues that the burden of proof is only relevant to trial where the presumption of innocence is adhered to in that, whether or not bail is granted, the burden remains on the prosecution to prove offences endangering national security beyond reasonable doubt.[48] 65.Thus the question which arises is whether, on the respondent’s reasoning, a burden of proof relating to refusal of bail rests on the prosecution. 66.Where a presumption in favour of bail operates (as under BOR 5(3) and CPO 9D(1)) one may broadly, if perhaps loosely, speak of the prosecution having the overall onus of displacing that presumption and showing that grounds exist for detaining the accused pending trial (even if a burden of proof does not strictly arise). The respondent cites various authorities (generally in cases which do not involve national security offences) in which such sentiments have been expressed. Moreover, the respondent points to cases, particularly in the Strasbourg jurisprudence, disapproving of legislation of Member States which expressly placed a burden on a suspect to prove that he should be granted bail. 67.We do not, however, accept the respondent’s line of argument. In the first place, the grant or refusal of bail under our laws does not involve the application of a burden of proof, so that there is no burden resting on either party, and no burden to be imposed on the prosecution. Secondly, the cases which proceed from a presumption in favour of bail are inapplicable in the present appeal since, for the reasons developed in this judgment, NSL 42(2) constitutes a specific exception which, by virtue of NSL 62, displaces CPO 9D(1) and the presumption in favour of bail at the initial stage of the assessment. 68.As previously pointed out, the rules as to the grant or refusal of bail by their nature involve a risk assessment as to the conduct of the accused in the future, an assessment that does not lend itself to strict proof at the bail hearing. Instead, as the provisions of the CPO indicate, the decision whether or not to grant bail or other decisions involving a predictive and evaluative exercise, are a “juridical exercise carried out by the court [as] an exercise in judgment or evaluation, not the application of a burden of proof”.[49] This is apparent from the provisions of the CPO. Thus:
69.Although we have concluded that there is no formal burden of proof on the prosecution in relation to the “sufficient grounds” requirement in NSL 42(2), it is noteworthy that there are other common law jurisdictions where, in respect of certain classes of offences, not only is there no burden of proof on the prosecution to establish grounds for refusing bail, but a burden is placed on the accused to establish why continued detention, rather than release on bail, is not justified. Thus, the majority of the Supreme Court of Canada has held that the requirement in section 515(6)(d) of the Criminal Code, to the extent that it requires the accused to show cause why pre-trial detention is not justified, does not contravene the Canadian Charter of Rights: R v Pearson.[55] In South Africa, the Constitutional Court has held that the provision in section 60(11) of the Criminal Procedure Act 1977, placing a burden on the accused to show exceptional circumstances exist which in the interests of justice permit his release, if charged with certain scheduled offences, is not unconstitutional: State v Dlamini.[56] In Australia, it has been held that section 15AA of the Crimes Act 1914 (Commonwealth) prevents the court from granting bail in certain cases unless it is satisfied that exceptional circumstances exist to justify bail and this provision requires the applicant to satisfy the court that such circumstances exist: R v NK.[57] F. Conclusions summarised 70.The conclusions we have so far reached may be summarised as follows.
G. The Judge’s decision 71.In granting the respondent bail,[61] the learned Judge Alex Lee J applied legal principles derived from earlier decisions, in particular Tong Ying Kit v HKSAR[62](“Tong (No 1)”) and HKSAR v Tong Ying Kit[63] (“Tong (No 2)”), in which he had taken part. 72.While much of what is said in Tong (No 1) is consistent with the foregoing analysis, that judgment unfortunately falls into error and is flawed in a crucial respect in that it misapprehends the nature and effect of the threshold requirement laid down by NSL 42(2). The Court held that:
73.This wrongly translates NSL 42(2)’s “double negative” (“no bail unless the judge has sufficient grounds to believe accused will not commit acts endangering national security before considering the grant of bail”) into a positive requirement that the court has to be satisfied that there do exist grounds to believe that the accused will continue to commit acts endangering national security as a basis for refusing bail. 74.This is not a case where one may arithmetically regard two negatives as producing a positive result. The Court’s approach erroneously re-writes NSL 42(2) and eliminates the more stringent threshold requirement it intentionally imposes as a specific exception to the general principles regarding bail. Consequently, the Court in Tong (No 1) (applied in Tong (No 2) and by the Judge below) erroneously treated NSL 42(2) as having hardly any impact on the generally applicable bail regime under CPO 9D and 9G:
Their Lordships added:
75.The words we have italicised above embody the error of treating the NSL 42(2) threshold question as little different from the discretionary ground for refusing bail set out in CPO 9G(1)(b) and thus failing to recognise the differing starting-points or, as Mr Wong SC put it, their different “default positions”, namely, “no bail unless ...” versus “grant bail unless ...”. 76.The abovementioned approach was spelt out in Tong (No 2),[67] where the learned Judge stated: “Therefore, in my judgment, as held in the Habeas Corpus Judgment [ie, Tong (No 1)], while there may a difference of emphasis between s.9G(1) of the CPO and art.42 of the NSL, the latter does not introduce any drastic or significant changes to the existing law and practice regarding bail applications.”[68] 77.It is clear from his Lordship’s Reasons for Ruling below, that he persisted in his erroneous line of reasoning. Thus, he applied the approach adopted in Tong (No 1) and Tong (No 2): “As regards bail applications for accused charged for offences under the NSL, the relevant legal principles have been considered in Tong Ying Kit v HKSAR and HKSAR v Tong Ying Kit. All of which, I am not going to repeat now.”[69] 78.In dealing with the “Merits of the application” regarding the prosecution’s objections to bail, the Judge proceeded to elide the NSL 42(2) question with the CPO 9G discretionary factors, going directly to consideration of the “nature and seriousness of the offence and the weight of the evidence”,[70] reflecting CPO 9G(2)(a) and (g). This was followed by consideration of “risk of absconding,”[71] reflecting CPO 9G(1)(a). 79.His Lordship then considered “Risk of committing offence whilst on bail”[72] which is the language of CPO 9G(1)(b) rather than that of NSL 42(2), even though he went on to quote NSL 42(2) and to hold that he was duly satisfied that he had “sufficient grounds to believe that the accused will not commit acts endangering national security for the future if bail is granted”.[73] 80.The aforesaid approach is clearly inconsistent with the analysis which has been developed in this judgment and cannot be supported. The learned Judge misconstrued NSL 42(2) and misapprehended the nature and effect of the threshold requirement created. Although he purported to apply the correct legal test, his Lordship in fact adopted an erroneous approach by eliding the NSL 42(2) question with the discretionary considerations set out in CPO 9G and never made a proper assessment under NSL 42(2).[74] The appellant’s appeal must accordingly be allowed and the Judge’s decision to grant the respondent bail must be set aside. 81.As was pointed out in the Determination granting leave to appeal,[75] the question before the Court is of a limited nature. If so advised, the respondent may make a fresh application for a review of the Chief Magistrate’s refusal of bail, but it falls outside the jurisdiction of the Court to conduct such a review. In the meantime, the respondent is remanded in custody.
Mr Anthony Chau, DDPP (Ag), Mr Ivan Cheung, SPP and Ms Crystal Chan, PP, of the Department of Justice, for the Appellant Mr Stewart Wong, SC, Ms Maggie Wong, SC and Mr Lee Siu Him, instructed by Robertsons, for the Respondent [1] The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region, applied to the HKSAR on 30 June 2020. [2] NSL 29 materially provides: “A person ... who requests a foreign country or an institution, organisation or individual outside the mainland, Hong Kong, and Macao of the People’s Republic of China, ... to commit any of the following acts shall be guilty of an offence: ... (4) imposing sanctions or blockade, or engaging in other hostile activities against the Hong Kong Special Administrative Region or the People’s Republic of China. …” It is punishable by a sentence of imprisonment of a fixed term of not less than three years but not more than ten years; and in respect of “an offence of a grave nature” by imprisonment for life or for a fixed-term of not less than ten years. [3] WKCC 4341/2020 (12 December 2020). [4] At §39. [5] Cap 221. [7] Ma CJ, Ribeiro and Cheung PJJ [2020] HKCFA 45 (31 December 2020). [8] By virtue of section 31 of the Hong Kong Court of Final Appeal Ordinance (Cap 484). [9] Events in recent months are described in this Court’s judgment in Kwok Wing Hang v Chief Executive in Council [2020] HKCFA 42, at Section C.1. [10] Cf, Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211 at 224-225. [11] Presented by Mr Wang Chen, Vice Chairman of the NPCSC: Explanation on “The Draft Decision of the National People’s Congress on Establishing and Improving the Legal System and Enforcement Mechanisms for the Hong Kong Special Administrative Region to Safeguard National Security” Addressing the Third Session of the Thirteenth National People’s Congress on 22 May 2020. [12] Decision of the National People’s Congress on Establishing and Improving the Legal System and Enforcement Mechanisms for the Hong Kong Special Administrative Region to Safeguard National Security (Adopted at the Third Session of the Thirteenth National People’s Congress on 28 May 2020) (L.N. 135 of 2020). [13] 5.28 Decision, §6. [14] Ibid. [15] Explanation on the “Draft Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region” addressed to the 19th Session of the 13th Standing Committee of the National People’s Congress by the Responsible Official of the Legislative Affairs Commission under the Standing Committee of the National People’s Congress (18 June 2020). [16] Explanation on “The Draft Decision of the Standing Committee of the National People’s Congress on Adding a Law to the List of the National Laws in Annex III to the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China” Addressing the Twentieth Session of the Standing Committee of the Thirteenth National People’s Congress on 30 June 2020 by Mr Shen Chunyao, Director of the Legislative Affairs Commission under the NPCSC. [17] Decision of the Standing Committee of the National People’s Congress on Adding a Law to the List of the National Laws in Annex III to the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Adopted at the Twentieth Session of the Standing Committee of the Thirteenth National People’s Congress on June 30, 2020), Instrument A117. [18] Promulgation of National Law 2020, Instrument A406. [19] Address at the Twentieth Session of the Standing Committee of the Thirteenth National People’s Congress (30 June 2020) by Mr Li Zhanshu (6 July 2020). [20] NSL 3: “The Central People’s Government has an overarching responsibility for national security affairs relating to the Hong Kong Special Administrative Region.
[21] Section E.1. [22] As pointed out in the Explanation of Draft NSL presented to the NPCSC on 18 June 2020, referred to above, and reiterated in the abovementioned Address to the NPCSC on 6 July 2020 regarding adoption of the NSL. [23] DDPP (Ag), appearing for the appellant with Mr Ivan Cheung and Ms Crystal Chan. [24] (1999) 2 HKCFAR 141 at 142. [25] Appearing for the respondent with Ms Maggie Wong SC and Mr Lee Siu Him. [26] Implemented by the Hong Kong Bill of Rights Ordinance (Cap 383) (“HKBORO”). [27] Respondent’s Written Case §11 (“RC §11”). [28] RC §35. [29] RC §6(1). [30] RC §§24-32. [31] RC §34. [32] RC §38. [33] (1999) 2 HKCFAR 141 at 142. [34] The paragraph numbers have been added for convenience. [35] Section E.3 of this judgment. [36] 22 May 2020 Explanation to the NPC of the Draft 5.28 Decision (§14 above); 6 July 2020 Address to the NPCSC on completion of the NSL’s adoption (§22 above). [37] Comilang Milagros Tecson v Director of Immigration (2019) 22 HKCFAR 59 at §30. There, the exception involved the immigration reservation implemented by section 11 of HKBORO excluding operation of the Bill of Rights regarding certain immigration cases. While the situation is not identical, it is comparable to the situation where NSL 42(2) may be intended to carve out a specific exception from a scheme of rights protection in the bail context. [38] Appellant’s Written Case §4(a) (“AC §4(a)”). The proposition in the latter part of the citation is evidently that the special exception constituted by NSL 42(2) should be held to supersede general provisions governing bail. The point is repeated at AC §33(b) where Comilang (supra) is cited. [39] RC §6(1) pp 6-7. See also his Supplemental Case, RSC §15(2). [40] Such as the offences of treason, incitement to disaffection or sedition under Parts I and II of the Crimes Ordinance (Cap 200). [41] AC §4(d) and (e). [42] AC §§41-43. [43] AC §§45-48. [44] AC §52. [45] RC §§13, 54. [46] RC §5(1). As we have seen at §36 above, the respondent also submits that if NSL 42(2) places the burden on the accused, it should be “read down” to impose the burden on the prosecution. Quite apart from the question of burden, we have held in Section D above that the Court lacks jurisdiction to adopt a remedial interpretation. [47] AC §40. [48] AC §86(e). [49] Per Lord Carswell in R (O) v Crown Court at Harrow [2007] 1 AC 249 at §11, citing Lord Bingham of Cornhill in R v Lichniak [2003] 1 AC 903, at §16; and Lord Steyn in R (McCann) v Crown Court at Manchester [2003] 1 AC 787, at §37 in an analogous case. See also Re McClean [2005] NI 490 (per Lord Bingham at §§25-26 and 31). [50] CPO 9D(2): “An order under [CPO 9D(1)] may be subject to such conditions as appear to the court to be necessary ...”; CPO 9G(1): “The court need not admit an accused person to bail if it appears to the court that there are substantial grounds ...” [51] CPO 9G(2)(h). [52] CPO 9G(2)(f). [53] Which restricts examining or cross-examining the accused regarding the offence with which he is charged. [54] CPO 9P. [55] [1992] 3 RCS 665. [56] [2000] 2 LRC 239 at §§58-80. [57] [2016] NSWSC 498 at §26. [58] §37 above. [59] §§52-54 above. [60] In accordance with CPO 9D(2) and CPO 9G. [62] Anderson Chow and Alex Lee JJ [2020] 4 HKLRD 382. [63] Alex Lee J [2020] 4 HKLRD 416. [64] [2020] 4 HKLRD 382 at §37. [65] Tong (No 1) at §43. [66] Ibid at §45. [67] At §12. [68] At §18. [69] Reasons for Ruling [2020] HKCFI 3161, at §8. [70] Ibid at §§9, 16-20. [71] Ibid at §§21-28. [72] Ibid at §§29-34. [73] Ibid at§33. [74] Additionally, it may be noted that Tong (No 1) at §37erroneously limits “acts endangering national security” to offences under the NSL. See §53(c)(ii) above. [75] [2020] HKCFA 45, at §23. |
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